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Court Denies Request For Rehearing


In a decision of great interest to farmers, Congress exempted ag storm water runoff from nonpoint sources from the Clean Water Act’s (CWA) emitting program, and EPA’s 2007 rule similarly exempted properly made pesticide applications.

However, in January 2009, a three-judge panel from the U.S. Sixth Circuit Court of Appeals overturned EPA’s policy and ruled that pesticide applications made to, over or near water bodies will require National Pollutant Discharge Elimination System (NPDES) permits.

The “general permits” referenced by the panel’s January decision could take months or perhaps years to develop. They are especially vulnerable to possible litigation for which farmers and applicators, not product registrants, could be held responsible.

“Over three decades and through two CWA amendments by Congress, EPA has never issued an NPDES permit for pesticide application,” says Jay Vroom, CropLife America (CLA) president and CEO.

Several entities, including CLA, requested that the panel’s decision be reviewed by the full U.S. Sixth Circuit Court of Appeals.

In May, the National Association of State Departments of Agriculture (NASDA) sent a letter to EPA requesting support of a rehearing. An excerpt from the letter reads as follows:

“Specifically, we are very concerned with the impact this decision will have on the exercise of our responsibilities under such federal statutes as the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). FIFRA established a unique, yet effective, regime in which state lead agencies have primacy in the enforcement of pesticide matters.

“The Court’s failure to consider this relationship specifically – and FIFRA generally – overlooks the importance of the longstanding regulatory web designed to provide pesticide-related environmental protection.”

In July, we asked our readers if they thought a review of the case would overturn the panel’s ruling. Sixty-two percent said no, thirty-eight percent said yes. As it turned out, EPA opposed the rehearing request, and on Aug. 3, the U.S. Sixth Circuit Court of Appeals denied the request for a rehearing by the full Court.

According to NASDA, after the rehearing was denied, now there is a 90-day window for the litigants to decide what steps to take next.

No matter how you vote, we appreciate everyone’s participation in Cotton Farming’s monthly Web Poll. Follow-ing is a sampling of the comments we received from people who voted in the July Web Poll.

• “Jurisdictional matters rarely get overturned. Congress will have to step up and specifically remove ag spraying from EPA permitting.”

• “I wonder how many people have been killed by negligent farmers! Anybody have an exact count? I bet a lot more have been killed by tainted food coming into the United States from foreign countries, but I don’t hear anyone in Washington screaming about that!!!”

• “Repeal the Fourteenth Amendment to the Constitution, so then you would not have this problem or a lot of other problems. Then it would remove the federal courts from jurisdiction.”

In our September Web Poll, we are moving out of the courts and back into the field to check in with our readers on how their 2009 cotton crop is shaping up at this point. Excellent, good, fair or poor?

Cast your vote, then, in the “Comments” section, explain what factors contributed to your crop’s condition this year. Please include the area of the Belt in which you farm.

To participate, go to www.cottonfarming.com. The results of the September poll will be reported in the Cotton Farming November issue.

Web Poll Results

In July, we asked: It’s been ruled that a National Pollution Discharge Elimination System permit be obtained before applying a pesticide where there could be potential product discharge into a waterway. Do you think a review of the case would overturn the panel’s ruling?

• Yes — 38 %
• No — 62 %

September Web Poll Question

How would you rate your cotton crop by “eyeballing” it at this time? In the “Comments” section, explain what factors contributed to your crop’s condition this year.

(1) Excellent
(2) Good
(3) Fair
(4) Poor

Register your vote at www.cottonfarming.com


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