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Pesticides and Water Don't Mix: Addressing the Need to Close a Regulatory Gap Between FIFRA an the CWA

January 2005

Citation: ELR 10055

Author: Randall S. Abate and Matthew T. Stanger

The failure to adequately regulate the application of pesticides over and into water bodies is a troubling example of the left hand not knowing what the right hand is doing in federal environmental regulation. Under existing federal law, pesticide applicators who comply with the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) may then proceed to apply such FIFRAregulated pesticides in a manner that may constitute a violation of the Clean Water Act (CWA). Moreover, the CWA does not contain any provisions, or enumerate any exceptions, pertaining to the application of FIFRA-regulated pesticides that reach "waters of the United States" regulated under the Act. The federal courts and the U.S. Environmental Protection Agency (EPA) have failed to resolve the relationship between these two statutes. Therefore, the U.S. Congress needs to bridge the gap between FIFRA and the CWA to ensure that these statutes' objectives to protect the environment and public health are fulfilled.

Federal courts have been one of two battlegrounds where the conflict between the regulatory scope of these two statutes has been waged. A circuit split is developing concerning the applicability of national pollutant discharge elimination system (NPDES) permits under the CWA for the application of pesticides regulated under FIFRA. The U.S. Court of Appeals for the Ninth Circuit and the U.S. Court of Appeals for the Second Circuit each have heard cases within the last four years on this issue, with the Ninth Circuit generally ruling in favor of requiring NPDES permits for FIFRA-regulated pesticides that are applied into or over waters regulated under the CWA. The Second Circuit cases, however, applied a stricter interpretation of the arguably conflicting Acts, and have limited the factual circumstances under which an NPDES permit is required for application of FIFRA-regulated pesticides.

Randall Abate is a member of the Legal Writing Faculty, Rutgers School of Law-Camden, where he also teaches environmental law and business, international environmental law, and ocean and coastal law. He received his B.A., University of Rochester; J.D., M.S.E.L., Vermont Law School. Matthew Stanger is an Associate at Porzio, Bromberg & Newman in Morristown, New Jersey. He received his B.S., Rutgers University; J.D., Rutgers School of Law-Camden.

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