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National Cotton Council of America v. United States Environmental Protection Agency

ELR Citation: 39 ELR 20006
Nos. 06-4630 et al., (6th Cir., 01/09/2009)

The Sixth Circuit vacated a U.S. Environmental Protection Agency (EPA) rule exempting from the Clean Water Act's (CWA's) national pollutant discharge elimination system (NPDES) permitting requirements pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act. The statutory text of the CWA forecloses the rule. Excess chemical pesticides and chemical pesticide residues are pollutants, and residual and excess chemical pesticides are added to the water by a point source. The "point source" from which the residue originates is easily discernable and necessarily must "be controlled at the source." Given EPA's interpretation that "[p]oint sources need only convey pollutants into navigable waters to be subject to the Act," dischargers of pesticide pollutants are subject to the CWA's NDPES permitting program. As such, EPA's rule cannot stand.