November 15, 2018

Pesticides Releases Over and Into Waters

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Pesticides Releases Over and Into Waters

 

   

Background information/documents

     
  Whether the application of pesticides that end up in Waters of the United States requires a National Pollutant Discharge Elimination System (NPDES) permit likely depends upon the manner by which the pesticides enter the water.  In League of Wilderness Defenders/Blue Mountains Diversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002), http://caselaw.findlaw.com/us-9th-circuit/1343039.html Conservation Groups sued the U.S. Forest Service for failing to obtain a NPDES permit before the aerial application of pesticides that landed in streams.  The Ninth Circuit sided with the Conservation Groups holding that the aerial spraying constituted a point source discharge under the Clean Water Act (CWA) and therefore a NPDES permit was required.  The Ninth Circuit held that the insecticides were a pollutant, the pesticides were being discharged directly to the affected streams, and that “an airplane filled with tanks and mechanical spraying apparatus is a ‘discrete conveyance.’”   The pesticide spraying airplane is a point source when the pesticides land (even by drift) directly into a stream.  The Court intimated that its holding might have been different if the aerial spraying had resulted in pesticides landing on the ground and then subsequently being carried into the streams by stormwater runoff.  In the latter scenario, the pesticides would not be entering Waters of the United States from a point source and perhaps a NPDES permit would not be required, but this latter issue was not before the Court.

 
  Draft proposal for CWA permit for pesticide spraying
   

Related Publications

     
  

The Clean Water Act Handbook, Fourth Edition

 

     

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