Summary of a Recent
Judicial
Development in
Clean Water Act
Ninth Circuit Allows Pesticide Application
to Surface Water
Without an NPDES Permit
Elizabeth Smith McKinneyNational AgLaw Center Graduate Assistant
In Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005), the United States Court of Appeals for the Ninth Circuit affirmed a district court's ruling in favor of the Director of the Montana Department of Fish, Wildlife and Parks, that the Director was not required to obtain a National Pollution Discharge Elimination System (NPDES) permit in accordance with the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, for the intentional application of a pesticide to surface water in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. A. § 136-136y.
The Director's application of antimycin to surface water was part of the Cherry Creek Native Fish Introduction Project, a project designed to eliminate non-native trout species and reintroducing the threatened westslope cutthroat trout to the water system. See id. at 1147. Plaintiff William Fairhurst brought a CWA citizen suit against the Director, seeking an injunction for additional, unpermitted applications and asserting that the pesticide was a "chemical waste" requiring an NPDES permit for application. See id. at 1148-49.
The Ninth Circuit distinguished the present case from its decision in Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001), where it considered the intentional application of an herbicide to irrigation canals for the purpose of clearing weeds. See id. at 1149. In Headwaters, the active ingredient of the herbicide at issue remained as residue in the water for several days. See id. The Headwaters court found the residue to be chemical waste and therefore an NPDES permit was required in order to apply the herbicide. See id. In the instant case, the plaintiff did not claim that any residue remained after the pesticide performed its intended purpose. Id. Deferring to an Environmental Protection Agency memorandum in which the EPA determined that pesticides applied in compliance with FIFRA were not chemical wastes, the court held that the Director was not required to obtain an NPDES permit in order to apply antimycin. See id. at 1149-50.
The court refused to address Director's assertion that an NPDES permit was not required because the application was compliant with FIFRA, citing Headwaters as foreclosing that argument. See id. at 1151. The Ninth Circuit emphasized that the instant case did not upset their precedent in Headwaters. See id. at 1152.
The case was decided on September 8, 2005; this summary was posted Oct. 25, 2005.