National Cotton Council of America v. U.S. E.P.A., No. 06-4630.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Cole
• Citation: 553 F.3d 927
• Parties: The NATIONAL COTTON COUNCIL OF AMERICA, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Decision Date: 07 January 2009
• Docket Number: No. 07-3181.,No. 07-3187.,No. 07-3180.,No. 07-3185.,No. 07-3184.,No. 06-4630.,No. 07-3186.,No. 07-3182.,No. 07-3183.

553 F.3d 927 The NATIONAL COTTON COUNCIL OF AMERICA, et al., Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. No. 06-4630. No. 07-3182. No. 07-3185. No. 07-3180. No. 07-3183. No. 07-3186. No. 07-3181. No. 07-3184. No. 07-3187. United States Court of Appeals, Sixth Circuit. Argued: April 29, 2008. Decided and Filed: January 7, 2009.

[553 F.3d 929]

ARGUED: Charles Tebbutt, Western Environmental Law Center, Eugene, Oregon, for Petitioners. Alan D. Greenberg, United States Department Of Justice, Denver, Colorado, for Respondent. Claudia M. O'Brien, Latham & Watkins, Washington, D.C., Kirsten L. Nathanson, Crowell & Moring, Washington, D.C., for Intervenors. ON BRIEF: Charles Tebbutt, Western Environmental Law Center, Eugene, Oregon, Lauren E. Brown, Waterkeeper Alliance, Irvington, New York, Daniel E. Estrin, Pace Environmental Litigation Clinic, White Plains, New York, Reed W. Super, Morningside Heights Legal Services, Inc., Columbia University School of Law, New York, New York, Charles C. Caldart, National Environmental Law Center, Seatle, Washington, Steven Schatzow, Law Offices of Steven Schatzow, Washington, D.C., for Petitioners. Alan D. Greenberg, United States Department of Justice, Denver, Colorado, for Respondent. Claudia M. O'Brien, Kenneth W. Weinstein, Davis B. Tyner, Latham & Watkins, Washington, D.C., Kirsten L. Nathanson, Ellen Steen, Crowell & Moring, Washington, D.C., for Intervenors. Elliot Silverman, McDormott Will & Emery LLP, Irvine, California, for Amicus Curiae.

Before: GUY, SUHRHEINRICH, and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

These proceedings involve a final regulation issued by the Environmental Protection Agency (the "EPA") under the Clean Water Act, 33 U.S.C. § 1251 et seq. The Clean Water Act regulates the discharge of "pollutants" into the nation's waters by, among other things, requiring entities that emit "pollutants" to obtain a National Pollutant Discharge Elimination System ("NPDES") permit. Id. §§ 1311(a), 1342. On November 27, 2007, the EPA issued a Final Rule concluding that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (the "FIFRA") are exempt from the Clean Water Act's permitting requirements. See 71 Fed.Reg. 68,483 (Nov. 27, 2006) (the "Final Rule"). Two different groups of Petitioners—one representing environmental interest groups and the other representing industry interest groups—oppose the EPA's Final Rule as exceeding the EPA's interpretive authority. The EPA defends the Final Rule by arguing that the terms of the Clean Water Act are ambiguous and that the Final Rule is a reasonable construction

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of the Clean Water Act entitled to deference from this Court. We cannot agree. The Clean Water Act is not ambiguous. Further, it is a fundamental precept of this Court that we interpret unambiguous expressions of Congressional will as written. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Therefore, we hold that the EPA's Final Rule is not a reasonable interpretation of the Act and VACATE the Final Rule.

I. BACKGROUND

A. The Regulatory Background

1. The Clean Water Act

Congress enacted the Clean Water Act "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." Nat'l Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 582 (6th Cir.1988) (quoting 33 U.S.C. § 1251(a)). The goal of the Clean Water Act is to achieve "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." 33 U.S.C. § 1251(a)(2). Thus, the Act provides that "the discharge of any pollutant by any person shall be unlawful." Id. § 1311(a). "Pollutant" is a statutorily defined term that includes, at least, "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." Id. § 1362(6). The Supreme Court has held that this list is not exhaustive and that "pollutant" should be interpreted broadly. Rapanos v. United States, 547 U.S. 715, 724, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

The Clean Water Act prohibits the discharge of any "pollutant" into navigable waters from any "point source" unless the EPA issues a permit under the NPDES permitting program, 33 U.S.C. §§ 1311(a), 1342, where a "point source" is "any discernible, confined, and discrete conveyance ... from which pollutants are or may be discharged." Id. § 1362(14). The permitting program constitutes an exception to the Clean Water Act's prohibition on pollutant discharges into the Nation's waters. Id. §§ 1311(a), 1342; 40 C.F.R. § 122.3. Thus, if a party obtains a permit, the discharge of pollutants in accordance with that permit is not unlawful. Id.

Before a permit is issued, the EPA, or a state agency that has been approved by the EPA, evaluates the permit application to ensure that the discharge of a pollutant under the proposed circumstances will not cause undue harm to the quality of the water. See 33 U.S.C. § 1342. In addition to granting permits for specific discharges, the EPA and state authorities may also grant general permits that allow for the discharge of a specific pollutant or type of pollutant across an entire region. Id. For example, prior to the EPA's adoption of the Final Rule, the State of Washington had issued a general permit to allow for the application of all aquatic pesticides in the State. See Acquatechnex v. Washington Dep't of Ecology, PCHB No. 02-090, 2002 WA ENV LEXIS 87, *2-5 (Pollution Control Hr'gs Bd. Dec. 24, 2002).¹ As a result, users of aquatic pesticides in Washington could discharge those pesticides covered by the rule without obtaining a

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permit. These general permits "greatly reduce [the] administrative burden by authorizing discharges from a category of point sources within a specified geographic area." S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 108 n. *, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) (citing 40 C.F.R. § 122.28(b)(2)(v)). "Once [the] EPA or a state agency issues such a [general] permit, covered entities, in some cases, need take no further action to achieve compliance with the NPDES besides adhering to the permit conditions." Id.

2. The Federal Insecticide, Fungicide, and Rodenticide Act

The EPA also regulates the labeling and sale of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act. Under the FIFRA, all pesticides sold in the United States must be registered with the EPA. See 7 U.S.C. § 136 et seq. The EPA approves an insecticide for registration only when it finds that the chemical, "when used in accordance with widespread and commonly recognized practice ... [,] will not generally cause unreasonably adverse effects on the environment." No Spray Coalition v. City of New York, 351 F.3d 602, 604-05 (2d Cir.2003) (quoting 7 U.S.C. § 136a(c)(5)(D)). Under the FIFRA, the EPA issues a "label" for each registered pesticide, indicating the manner in which it may be used; the statute makes it unlawful "to use any pesticide in a manner inconsistent with its labeling." Id. (quoting 7 U.S.C. § 136j(a)(2)(6)).

For nearly thirty years prior to the adoption of the Final Rule, pesticide labels issued under the FIFRA were required to contain a notice stating that the pesticide could not be "discharge[d] into lakes, streams, ponds, or public waters unless in accordance with an NPDES permit." EPA's Policy and Criteria Notice 2180.1 (1977). Despite amendments made to the FIFRA's labeling requirements over the years, pesticide labels have always included a notice about the necessity of obtaining an NPDES permit. See EPA's Policy and Criteria Notice 2180.1 (1984); Pesticide Registration ("PR") Notice 93-10 (July 29, 1993); PR Notice 95-1 (May 1, 1995); see also EPA-738-7-96-007 (Feb.1996), available at http://www.epa.gov/oppsrrd1/ REDs/factsheets/3095fact.pdf, (Pesticide Reregistration notification for 4, 4-Dimethyloxazolidine) (referring to the labeling requirement described in the PR Notice).

3. The Regulatory Framework Under the Final Rule

Under the Clean Water Act, pollutants may only be discharged according to a permit unless they fit into one of the exceptions listed in the federal regulations at 40 C.F.R. § 122.3. The Final Rule revises the regulations by adding pesticides to these exceptions as long as they are used in accordance with the FIFRA's requirements. 71 Fed.Reg. at 68,485, 68,492. Specifically, the Final Rule states that pesticides applied consistently with the FIFRA do not require an NPDES permit in the following two circumstances:

(1) The application of pesticides directly to waters of the United States in order to control pests. Examples of such applications include applications to control mosquito larvae, aquatic weeds, or other pests that are present in waters of the United States.

(2) The application of pesticides to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States in order to target the pests effectively; for example, when insecticides are aerially applied to a forest canopy where waters of the United States may be present below the canopy

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or where pesticides are applied over or near water for control of adult mosquitoes or other pests.

40 C.F.R. § 122.3(h).

Although the EPA, through its Final Rule, takes the position that pesticides are not generally pollutants, it makes an exception for "pesticide residuals," which "include[] excess amounts of pesticide." 71 Fed.Reg. at 68,487. "Pesticide residuals" are those portions of the...