Another attempt by the Bush administration’s political and ideological EPA to rollback Clean Water Act protections for our nation’s waters has once again been rejected by a federal court. In late 2007, the EPA issued a final rule (71 Fed. Reg. 68,483) exempting pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act from the Clean Water Act’s permitting requirements. In issuing this rule, the Bush EPA attempted to reverse thirty years of previous water protection policy. Since 1977, pesticide labels 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 [a Clean Water Act] permit.” Yet in the Bush EPA’s ongoing effort to exempt sources of water pollution from federal regulation, the EPA reversed this policy and issued a rule that pesticides sprayed on or near water (such as aerial spraying of forests above streams) need not comply with the Clean Water Act.
As with other Bush EPA attempts at Clean Water Act rollbacks and exemptions, the rule violates the plain and unambiguous language of the Clean Water Act. The Clean Water Act prohibits the “discharge of a pollutant” from a “point source” into “navigable waters” without a permit. This is one of the most clear and straightforward statutory protections in environmental law, yet the Bush EPA has repeatedly attempted convoluted and strained interpretations to exempt a host of pollution sources (including ballast water discharges and transbasin water transfers) from Clean Water Act regulation. When challenged in court by environmental organizations, these rollbacks and exemptions have been consistently rejected. The pesticide rule is just the latest example, with the federal Sixth Circuit Court of Appeals ruling that “[t]he Clean Water Act is not ambiguous” and “the EPA’s Final Rule is not a reasonable interpretation of the Act.”
Thanks to the environmental organizations and public interest attorneys that challenged the EPA rule (notably the Western Environmental Law Center, the Pace Environmental Litigation Clinic, the Waterkeeper Alliance, and the National Environmental Law Center), our waters will still have some protections from pesticides. The real scandal is that the Bush EPA, which has a statutory duty to protect our water through the Clean Water Act, has tried to gut the law instead. Seeing the EPA lose in court, yet again, only makes clear how far outside the bounds of law this EPA administration has acted.