FIFRA and CWA Resolved?
In the first week of September, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a lower court ruling that the application of the pesticide antimycin to the Cherry Creek drainage area did not necessitate a National Pollutant Discharge Elimination (NPDES) permit under the Clean Water Act (CWA). The creek was located in Montana, and antimycin was being used to kill-off non-native fish prior to reintroduction of the westslope cutthroat trout. When used properly, this piscicide leaves little residue, which happened to be the crux of this particular legal case.
The court ruled that since the antimycin dissipated rapidly and left no chemical residue after being applied directly to the water and since no portion was “superfluous material” or “refuse or excess material,” it is not a “chemical waste” for the purposes of the CWA. Because the case was decided based on the interpretation of the term “chemical waste,” it did not address the defendant’s (the Montana Department of Fish, Wildlife, and Parks) argument that an NPDES permit was not required as long as the requirements of FIFRA were followed.
The Headwaters case denied that argument, holding that since a FIFRA label and an NPDES permit serve different purposes, anyone who disperses a “pollutant” as defined by the CWA must obtain an NPDES permit, regardless of whether it is dispersed according to the instructions on its FIFRA label. Consequently, this suit does nothing to alleviate the controversy between FIFRA and CWA. (Pesticide & Toxic Chemical News, 9/12/05).
