## Facts

- EPA issued a Final Rule exempting certain pesticide applications from Clean Water Act (CWA) NPDES permitting when the pesticides were applied in compliance with FIFRA.
- The exemption covered (1) pesticides applied directly to waters to control aquatic pests and (2) pesticides applied over or near waters where some portion would unavoidably enter the water.
- EPA reasoned that FIFRA-compliant pesticides were not “pollutants” at the time of discharge; although “pesticide residuals” were pollutants, EPA asserted they did not trigger permitting because they were not pollutants “at the time of discharge.”
- Environmental organizations and industry organizations filed consolidated petitions for direct review of the Final Rule in the Sixth Circuit.
- Petitioners contended the rule conflicted with the CWA’s prohibition on discharging pollutants to waters of the United States without an NPDES permit.

## Issues

1. Whether the CWA is ambiguous as to whether pesticide applications that reach waters of the United States are “discharges of pollutants” requiring NPDES permits.
2. Whether EPA’s categorical exemption for FIFRA-compliant pesticide applications is a permissible interpretation of the CWA under Chevron.
3. Whether pesticide residuals and excess pesticide in water constitute “pollutants” and whether application equipment constitutes a “point source.”

## Decision

- The court held the CWA unambiguously covers pesticide discharges to waters as “pollutants,” leaving no interpretive gap for EPA to fill.
- The court rejected EPA’s distinction between pesticides “in use” and pesticide “residuals” for permitting purposes.
- The court concluded that pesticides and their residuals in water fit within the statutory definition of “pollutant,” including “chemical wastes” and “biological materials.”
- The court held that pesticide application equipment can qualify as a “point source” and that introduction of pesticides into covered waters is a regulated discharge.
- The court vacated the EPA’s Final Rule.

## Legal Principles

- When statutory text is unambiguous, courts enforce Congress’s expressed intent; agency policy concerns cannot justify a contrary categorical exemption.
- Pesticides and pesticide residuals introduced into waters of the United States from a point source are “pollutants” under the CWA, including as “chemical wastes” or “biological materials.”
- FIFRA registration and label compliance do not displace CWA NPDES permitting duties; regulated parties may be required to comply with both schemes.
- An agency rule that conflicts with an unambiguous statutory prohibition is invalid and subject to vacatur on direct review.

## Conclusion

The Sixth Circuit vacated EPA’s rule exempting FIFRA-compliant pesticide applications from NPDES permitting, holding that the CWA unambiguously treats pesticides and their residuals introduced into covered waters from a point source as discharges of pollutants requiring permits.


Nat’l Cotton Council of Am. v. U.S. EPA, 553 F.3d 927 (6th Cir. 2009)