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U.S. Supreme Court refuses AFBF’s request to review the National Cotton case

March 1, 2010

The U.S. Supreme Court last week denied AFBF’s request for review of the Sixth Circuit Court of Appeals decision in National Cotton Council v. EPA.

The decision deals a blow to production agriculture and could set the stage for a cumbersome permitting process or legal challenges that would force farmers to obtain an National Pollution Discharge Elimination System (NPDES) permit before applying any pesticide. 

In its ruling, the Sixth Circuit held that many pesticide applications to or over “waters of the United States” will require a NPDES permit under the Clean Water Act, a view that overturns over 30 years of law. 

In its petition for certiorari, AFBF informed the court not only of the serious legal flaws in the Sixth Circuit’s ruling, but also the devastating impact of this unprecedented imposition of highly restrictive NPDES permit requirements on beneficial pesticide use. 

Farmers rely on the availability and effectiveness of crop protection methods to stop the spread of diseases and other pests that can devastate a field within days.  Congress plainly intended that agricultural pesticide use be shielded from costly and time-consuming federal permit requirements. 

Although the Cotton Council decision did not directly concern the use of pesticides on crops, the ruling will generate tremendous uncertainty and litigation risk that may seriously impair the ability of our nations’ farmers to grow, tend and harvest their crops.

EPA agricultural liaison Larry Elworth told Illinois Farm Bureau leaders last fall that the EPA permit would be narrowly written to cover pesticide applications for mosquito and insect abatement in, near, and over water.

EPA successfully obtained a court order delaying the effective date of the Sixth Circuit’s ruling until April 11, 2011.  Meanwhile, EPA is in the process of developing an NPDES “general” permit for use in several states, while roughly 45 states will have to develop their own NPDES permits for pesticide use. 

Because of the threat to farmers caused by this legal uncertainty, AFBF is examining the possibility of asking  Congress to clarify that lawful pesticide applications are regulated under pesticide laws and not the Clean Water Act.

To comment on the EPA’s proposed spray drift regulations, click here.

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