Order Code RL32884
CRS Report for Congress
Received through the CRS Web
Pesticide Use and Water Quality:
Are the Laws Complementary or in Conflict?
Updated June 3, 2005
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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Pesticide Use and Water Quality:
Are the Laws Complementary or in Conflict?
Summary
This report provides background on the emerging conflict over interpretation
and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they
were enacted, there has been little apparent conflict between them. But their
relationship has recently been challenged in several arenas, including the federal
courts and regulatory proceedings of the Environmental Protection Agency (EPA).
In this report, a brief discussion of the two laws is followed by a review of the major
litigation of interest. EPA’s efforts to clarify its policy in this area and a January
2005 rulemaking proposal are discussed, as well as possible options for EPA and
Congress to address the issues. This report will be updated as warranted.
FIFRA governs the labeling, distribution, sale, and use of pesticides, including
insecticides and herbicides. Its objective is to protect human health and the
environment from unreasonable adverse effects of pesticides. It establishes a
nationally uniform labeling system requiring the registration of all pesticides sold in
the United States, and requiring users to comply with the national label. The CWA
creates a comprehensive regulatory scheme to control the discharge of pollutants into
the nation’s waters; the discharge of pollutants without a permit violates the Act.
Four federal court cases testing the relationship between FIFRA and the CWA
have drawn attention. In two cases concerning pesticide applications by agriculture
and natural resources managers, the U.S. Ninth Circuit Court of Appeals has held that
CWA permits are required for at least some discharges of FIFRA-regulated pesticides
over, into, or near U.S. waters. Two other cases involve the use of pesticides for
mosquito control. In these cases, the U.S. Second Circuit Court of Appeals has not
yet specifically addressed whether the application of FIFRA-approved pesticides
requires a CWA discharge permit, but the cases are pending.
The judicial rulings have alarmed a range of stakeholders who fear that requiring
CWA permits for pesticide application activities would present significant costs,
operational difficulties, and delays. Pressed by many to clarify its long-standing
principle that CWA permits are not required for using FIFRA-approved products,
EPA in January 2005 issued an Interpretive Statement and Guidance memorandum
that is at odds with several federal court rulings, and it simultaneously proposed a
rulemaking to codify that principle in regulations. EPA’s actions are strongly
opposed by environmental activists who argue that FIFRA does not protect water
quality from harmful pollutant discharges, as the CWA is intended to do.
EPA’s likely options involve whether it will continue to rely solely on
interpretive guidance to assist pesticide users and the courts on CWA-FIFRA
questions, or whether it will also finalize a rule addressing the issues. Some believe
that the controversy will only be resolved by congressional action to clarify the
intersecting scope of the Clean Water Act and FIFRA. Legislation intended to do so
has been introduced in the 109th Congress (H.R. 1749).

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Ninth Circuit Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Second Circuit Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Other Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
EPA’s Regulatory Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
EPA’s Interim Guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responses to the Interim Guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Final Guidance and Proposed Rulemaking . . . . . . . . . . . . . . . . . . . . . . 9
Congressional Interest and Future Options . . . . . . . . . . . . . . . . . . . . . . . . . 11
Options for EPA and Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Pesticide Use and Water Quality:
Are the Laws Complementary or in Conflict?
Introduction
It has been noted that “[t]he potential for overlapping and potentially conflicting
regulatory scope between federal statutes is common, especially in the heavily
regulated area of environmental protection.”1 This potential is receiving attention
today in connection with implementation of the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA)2 and the Federal Water Pollution Control Act (Clean Water
Act, CWA)3. FIFRA requires the Environmental Protection Agency (EPA) to
regulate the sale and use of pesticides in the United States through registration and
labeling. The CWA is the principal federal law governing pollution in the nation’s
surface waters.
Pesticides used to control weeds, insects, and other pests receive public attention
because of potential impacts on humans and the environment. Depending on the
chemical, possible health effects from overexposure to pesticides include cancer,
reproductive or nervous-system disorders, and acute toxicity. Similar effects are
possible in the aquatic environment. Recent studies suggest that some pesticides can
disrupt endocrine systems and affect reproduction by interfering with natural
hormones. However, many pesticides and their breakdown products do not have
standards or guidelines, and current standards and guidelines do not yet account for
exposure to mixtures and seasonal pulses of high concentrations. Effects of
pesticides on aquatic life are a concern, because intensive surveys done by the U.S.
Geological Survey found that more than one-half of streams sampled had
concentrations of at least one pesticide that exceeded an EPA guideline for the
protection of aquatic life. Whereas most toxicity and exposure assessments of
pesticides are based on controlled experiments with a single contaminant, the U.S.
Geological Survey sampling found that most contamination of waterbodies occurred
as pesticide mixtures.4

For the more than 30 years since Congress enacted FIFRA and the Clean Water
Act, there has been little apparent direct conflict between them. EPA’s operating
principle during that time has been that pesticides used according to the requirements
1 Randall S. Abate and Matthew T. Stanger, “Pesticides and Water Don’t Mix: Addressing
the Need to Close a Regulatory Gap Between FIFRA and the CWA,” Environmental Law
Reporter News & Analysis, January 2005, p. 10056.
2 7 U.S.C. §§136-136y.
3 33 U.S.C. §§1251-1387.
4 U.S. Department of the Interior, U.S. Geological Survey, The Quality of Our Nation’s
Waters, Nutrients and Pesticides, USGS Circular 1225, 1999, pp. 3-9.

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of FIFRA do not require regulatory consideration under the CWA. EPA has never
required CWA permits for use of FIFRA-approved materials, and EPA rules
currently do not specifically address the issue. However, EPA’s interpretation and
operating practice regarding the relationship between the two laws has recently been
challenged in several arenas. Federal courts have been one of two battlegrounds so
far where the potential conflict between the regulatory scope of these two laws has
been waged. EPA regulatory proceedings have been the second battleground area.
Congressional action could add a third testing of the issues.
At issue is how FIFRA-approved pesticides that are sprayed over and into
waters are regulated and, specifically, whether the FIFRA regulatory regime is
sufficient alone to ensure protection of water quality or whether such pesticide
application requires approval under a CWA permit. The issue arose initially over
challenges to some routine practices in the West (weed control in irrigation ditches
and spraying for silvicultural pest control on U.S. Forest Service lands). It
subsequently drew more attention in connection with efforts by public health officials
throughout the country to combat mosquito-borne illnesses such as West Nile virus.
The court decisions have created uncertainty over whether application of pesticides
and herbicides to waterbodies requires a water discharge permit. EPA is trying to
promulgate policy to clarify the relationship of the two laws and to address conflicts
resulting from several judicial rulings. A related issue of interest to many pesticide
applicators, but not yet addressed by EPA policy, concerns pesticides that
unintentionally impact waterbodies through drift or migration from nearby land, such
as a field of crops.
This report provides background on the emerging conflict over interpretation
and implementation of FIFRA and the Clean Water Act. A brief discussion of the
two laws is followed by a review of the major litigation of interest. EPA’s efforts to
clarify its policy in this area and a January 2005 rulemaking proposal by EPA are
discussed, as well as possible options for EPA and Congress to address the FIFRA-
CWA issues.
The Laws
FIFRA is a regulatory statute governing the licensing, distribution, sale, and use
of pesticides, including insecticides, fungicides, rodenticides, and other designated
classes of chemicals. Its objective is to protect human health and the environment
from unreasonable adverse effects of pesticides. To that end, it establishes a
nationally uniform pesticide labeling system requiring the registration of all
pesticides and herbicides sold in the United States, and requiring users to comply
with conditions of use included on the national label. A FIFRA label encompasses
the terms on which a chemical is registered, and its requirements become part of
FIFRA’s regulatory scheme. In registering the chemical, EPA makes a finding that
the chemical “when used in accordance with widespread and commonly recognized
practice ... will not generally cause unreasonable adverse effects on the environment”
(7 U.S.C. §136a(c)(5)(D)).
EPA reviews scientific data submitted by pesticide manufacturers on toxicity
and behavior in the environment to evaluate risks and exposure associated with the
pesticide product’s use and takes into account the costs and benefits of various

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pesticide uses. If a registration is granted, the agency specifies the approved uses and
conditions of use, which the registrant must explain on the product label. EPA may
classify and register a pesticide product for restricted use (those judged to be more
dangerous to the applicator or to the environment which can only be applied by or
under the direct supervision of a person who has been trained and certified) or for
general use. FIFRA preempts state, local, and tribal regulations stricter than or
different from EPA rules with respect to labeling requirements, but allows states and
localities to adopt more restrictive conditions with regard to sale and use.
Use of a pesticide product in a manner not consistent with its label is prohibited,
and the law provides civil and criminal penalties for violations. Under FIFRA, EPA
generally enforces the law’s requirements. However, the law also gives states with
adequate enforcement procedures, laws, and regulations primary authority for
enforcing FIFRA provisions related to pesticide use.
The objective of the CWA is to “restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” To that end, it creates a
comprehensive regulatory scheme to control the discharge of waste and pollutants;
the discharge of pollutants into waters of the United States without a permit violates
the Act. The permit requirement is at the heart of the Act’s compliance and
enforcement strategy. Several aspects of these core requirements in the law are
important to evaluating whether the CWA applies to specific activities, including
whether there is a discharge from a point source (a discrete conveyance such as a
pipe, ditch, container, vessel, or other floating craft), whether the discharge is made
into waters of the United States, and whether the material discharged is a pollutant;
all of these terms are defined in the Act. Especially key in the current context is
whether pesticides are pollutants under the Act. This issue has been central to much
of the judicial and regulatory debate over whether the two laws, CWA and FIFRA,
are complementary or in conflict. CWA Section 502(6) (33 USC §1362(6)) defines
pollutant thus:
The term ‘pollutant’ means dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricultural waste discharged into
water.
Section 402 of the Act establishes the National Pollutant Discharge Elimination
System (NPDES) permitting requirement, which regulates the lawful discharge of
pollutants. Discharges are permitted under the Act if they are authorized under a
NPDES permit that meets CWA requirements, including protecting the receiving
waters. NPDES permits specify limits on what pollutants may be discharged and in
what amounts. They also include monitoring and reporting requirements. They are
either individual case-by-case permits or general permits applicable to similar
categories of activities and similar waste discharges. Under the CWA, qualified
states issue NPDES permits to regulated sources and enforce permits, and the law
allows states to adopt water quality requirements more stringent than federal rules.
As of April 2005, 45 states had been delegated authority to administer the permit
program; EPA issues discharge permits in the remaining states.

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The NPDES permit is the Act’s principal enforcement tool. EPA may issue a
compliance order or bring a civil suit in U.S. district court against persons who
violate the terms of a permit, and stiffer penalties are authorized for criminal
violations of the Act. As a practical matter, the majority of actions taken to enforce
the law are undertaken by states, both because states issue the majority of permits to
dischargers and because the federal government lacks the resources for day-to-day
monitoring and enforcement. In addition, individuals may bring a citizen suit in U.S.
district court against persons who violate the terms of a CWA-authorized permit or
who discharge without a valid permit. FIFRA does not authorize citizen suits.
Throughout the United States, pesticides often are applied in, onto, or near
waterbodies to control weeds and insects. Whether those pesticides are adversely
affecting water quality has not been an issue until recently. It has been EPA’s long-
standing practice and interpretation of the laws that a CWA permit is not required
when pesticide application is done in a manner consistent with FIFRA and its
regulations. But that interpretation has been challenged in several lawsuits brought
since the late 1990s and decided since 2001 and more recently.
The Litigation
Four federal court cases testing the relationship between FIFRA and the CWA
have drawn the most attention, two in the Ninth Circuit Court of Appeals in the West
concerning pesticide applications by agricultural and natural resource managers, and
two in the Second Circuit Court of Appeals in the East involving the use of pesticides
by government and public health authorities for mosquito control. These cases have
been brought principally under citizen suit provisions of the Clean Water Act. So far,
the Ninth Circuit decisions have held that CWA permits are required for at least
some activity involving the point source discharge of FIFRA-regulated pesticides
over or into waters of the United States. The Second Circuit, while not yet holding
the opposite, appears to some observers to be less willing to interpret the CWA to
require NPDES permits for application of FIFRA-regulated chemicals.5 Thus far,
this appeals court has remanded two cases to district courts for further proceedings
involving related issues; it has not yet specifically addressed whether the application
of FIFRA-approved pesticides requires a CWA discharge permit, as the Ninth Circuit
has.
The Ninth Circuit Cases. The first of the major cases on these issues
involved application of herbicides in irrigation ditches. In the case, a major issue was
whether the application of pesticides constitutes the discharge of a pollutant.
Environmental groups challenged application of an aquatic herbicide to kill weeds
and algae and sought to require that the applicator, a municipal corporation that
operates a system of irrigation canals in Oregon, obtain an NPDES permit.
The Ninth Circuit Court of Appeals endorsed the lower court’s ruling that the
pesticide was a pollutant under the CWA, and that the irrigation canals into which
5 Randall S. Abate and Matthew T. Stanger, “Pesticides and Water Don’t Mix: Addressing
the Need to Close a Regulatory Gap Between FIFRA and the CWA,” Environmental Law
Reporter News & Analysis, January 2005, p. 10055.

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the pesticide was being sprayed are “waters of the United States.” But it rejected the
lower court’s holding that a CWA permit was not required because the pesticide was
properly regulated by FIFRA and had an EPA-approved FIFRA label. The appeals
court ruled that FIFRA and CWA have different purposes and that, as such, neither
could be controlling on the application of the other. The court said that FIFRA
creates a comprehensive regulatory scheme for the labeling of pesticides, requiring
that all insecticides and herbicides sold in the United States be registered with the
EPA. It and the CWA have different, although complementary, purposes, the court
said, and using a pesticide with a FIFRA-approved label does not obviate the need
to obtain a CWA permit. The FIFRA label is the same nationwide. The CWA
permit considers local environmental conditions, which the FIFRA label does not.
Thus, a nationwide label on a FIFRA-regulated chemical could not be controlling on
whether a CWA permit is required, because it does not account for location-specific
requirements. The court reversed the district court’s grant of summary judgment in
favor of the defendants (Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526
(9th Cir. 2001)).
Several of the states within the Ninth Circuit subsequently took actions to
respond to this ruling. California and Washington amended their water quality
program rules to require NPDES permits for pesticide applicators. Oregon did not
mandate permits, but suggested that pesticide applicators obtain state-issued permits
to protect against lawsuits.
The second major case in the West involved an annual U.S. Forest Service
(USFS) aerial spray program over national forest lands in Oregon and Washington.
Environmental groups filed a lawsuit challenging the spraying program, saying that
the environmental impact statement (EIS) prepared by the USFS was inadequate and
that the Forest Service had failed to obtain a CWA permit, which they argued is
required for this type of aerial spraying. The appeals court reversed the district
court’s order of summary judgment for the Forest Service and instructed the lower
court to enter an injunction prohibiting the federal agency from further spraying until
it acquires an NPDES permit and completes a revised EIS (League of Wilderness
Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir.
2002), cert. denied). The court disagreed with the argument of the Forest Service that
the spraying is nonpoint source water pollution, which does not require an NPDES
permit. The court held that the insecticides meet the CWA definition of “pollutant”
and that the application came from an aircraft equipped with spraying apparatus, thus
meeting all of the elements of the CWA’s definition of point source pollution.
In September 2003, the EPA General Counsel issued a legal memorandum to
Region 9 officials (involving Oregon, Washington, Idaho, Montana, and Hawaii)
responding to the Forsgren case. The memorandum said that EPA disagreed with the
court’s holding in the case and that outside the Ninth Circuit, EPA would continue
its long-standing interpretation of FIFRA and the CWA. Within the Ninth Circuit,
the memo said, EPA would not acquiesce to the ruling in the case of materials other

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than pesticides (such as those used for fire control), or in circumstances where
pesticides are not applied directly over and into waters of the United States.6
The Second Circuit Cases. Two cases in the Second Circuit involve the
use of pesticides for mosquito control. In the first case, several residents of the Town
of Amherst, N.Y., sought to halt aerial application of pesticides without a CWA
permit. The district court initially granted the defendant’s motion to dismiss the case,
stating that spray drift is not chemical waste under the CWA and that the pesticide
use was best regulated under FIFRA. But the appeals court remanded the case to the
District Court on the basis that the lower court had acted on an incomplete record,
had unnecessarily limited discovery, and had failed to consider threshold questions
of law (Altman v. Town of Amherst, N.Y., 47 Fed. Appx. 62 (2d Cir. 2002)).
Although this ruling may not be cited as precedent, it is notable in that the court
invited EPA to offer its views on the policy and legal questions, thus drawing the
attention of EPA and stakeholder groups. The court stated:
Until the EPA articulates a clear interpretation of current law — among other
things, whether properly used pesticides released into or over waters of the
United States can trigger the requirement for NPDES permits ... — the question
of whether properly used pesticides can become pollutants that violate the CWA
will remain open. Participation by the EPA in this litigation in any way that
permits articulation of the EPA’s interpretation of the law in this situation would
be of great assistance to the courts.7
The second pertinent case in the Second Circuit also involved the use of
pesticides for control of mosquitoes. Plaintiffs in the case, a citizens group, sought
an injunction to halt the aerial and ground spraying, arguing that although the
pesticides were properly regulated under FIFRA, the spraying program involved the
discharge of a pollutant without a CWA permit, and thus was a violation of that law.
While the federal district court ruled that FIFRA’s refusal to allow enforcement by
citizen suit should prevail over the CWA’s allowance of such suits unless the alleged
violation of the CWA also constitutes a substantial violation of FIFRA, the appeals
court disagreed. It held that the CWA authorizes any citizen to bring suit to enforce
its requirements, regardless of whether the claimed CWA violation also violated
FIFRA (No Spray Coalition v. City of New York, 351 F.3d 602 (2d Cir. 2003)). The
Second Circuit remanded the case to the District Court for further proceedings on the
CWA claims. Following the remand, in mid-2004 the parties resubmitted and re-
argued motions for summary judgment in this case and are awaiting a ruling by the
court.
Other Litigation. Other lawsuits have followed these cases. For example,
private citizens who operate an organic fruit farm in Gem County, Idaho, brought suit
against the local mosquito abatement district there, seeking to require a CWA permit
for pesticide spraying. Finding itself in the proverbial spot “between a rock and a
6 Robert Fabricant, EPA General Counsel, “Interpretive Statement and Guidance Addressing
Effect of Ninth Circuit Decision in League of Wilderness Defenders v. Forsgren on
Application of Pesticides and Fire Retardants,” memorandum, Sept. 3, 2003, 7 pp.
7 47 Fed. Appx. At 67.

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hard place,” the mosquito abatement district applied for a permit from EPA, which
the agency declined to issue, based on its long-standing policy and legal
interpretation. Thereafter, the mosquito abatement district filed a lawsuit against
EPA in an attempt to obtain a declaration that a CWA permit is not needed and to
avoid the citizen suit litigation, which is pending in federal court in Idaho. The
mosquito abatement district asked the federal court either for a judgment saying that
no permit is required or, if the court were to determine otherwise, an order directing
EPA to process its CWA permit application. On January 4, 2005, the federal district
court in the District of Columbia dismissed the case because the mosquito abatement
district and EPA agree that no CWA permit is required for pesticide applications that
are consistent with FIFRA (Gem County Mosquito Abatement District v. EPA, Civ.
Action No. 03-2179, D.D.C. Jan. 4, 2005). The mosquito abatement district has
appealed the D.C. district court’s ruling. In the meantime, fact-finding is underway
in the citizen suit litigation in federal court in Idaho.
Twice since 2004, citizen groups have given notice, as required by the Clean
Water Act, of possible lawsuits to expand the precedent from the Ninth Circuit cases
to other types of operations. The noticed actions, in August 2004 and March 2005,
were threatened against Maine blueberry farmers for failing to obtain a CWA permit
for spraying pesticides that may drift off-target from land into waterbodies. In
response to the litigation pressure, however, both farmers subsequently announced
plans to cease aerial spraying and instead rely on ground spraying, thus avoiding the
potential legal actions.
EPA’s Regulatory Responses
The two rulings by the Ninth Circuit and possible endorsement by other courts
have greatly alarmed a range of stakeholders in the regulated community, including
forestry, agriculture, and pesticide applicators, as well as municipal and public health
officials concerned with the need to control mosquitos and other vectors associated
with diseases such as West Nile virus and malaria. They feared that CWA permit
requirements would be extended to agricultural and other activities that have not
traditionally been regulated under the CWA. They argue that if permits tailored to
particular circumstances are deemed necessary, such requirements would present
significant costs, operational difficulties, and delays to applicators. They also would
tax limited federal and state CWA permitting resources. In their view, requiring
permits will not be environmentally helpful, but the expense and long delays of
permitting proceedings will hamper programs that are needed for controlling pests
that threaten public health and crops.
EPA’s Interim Guidance. Since the Altman v. Town of Amherst ruling,
industry, states, and others, including some in Congress, have pressed EPA to clarify
the emerging conflicts over the two laws. EPA responded in July 2003 with an
Interim Statement and Guidance memorandum.8 In it, EPA presented its
interpretation of whether an NPDES permit is required for the application of
8 U.S. Environmental Protection Agency, “Interim Statement and Guidance on Application
of Pesticides to Waters of the United States in Compliance with FIFRA,” 68 Federal
Register 48385, Aug. 13, 2003.

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pesticides that comply with FIFRA. EPA’s position was that application of
pesticides either directly in U.S. waters or aerially above or near the waters to control
pests does not require a CWA permit, so long as the use is done in compliance with
relevant FIFRA requirements. The memorandum acknowledged the federal court’s
holding to the contrary in the Headwaters v. Talent case, but then described why EPA
concludes otherwise. Under the agency’s evaluation, pesticides applied in a manner
consistent with FIFRA do not constitute either chemical wastes or biological
materials under the definition of pollutant in Section 502(6) of the CWA. The
rationale for this position is that it is consistent with over 30 years of CWA
administration.9 The memorandum noted that pesticide applications in violation of
FIFRA, that is, not used or applied according to applicable labeling requirements,
would be subject to all relevant statutes, including the Clean Water Act. EPA invited
public comments on the interim guidance statement through October 14, 2003, but
the position stated in the memorandum took effect immediately and would apply
until EPA issues a final position on the matter.
The Interim Statement addresses in detail the question of whether, in EPA’s
view, pesticides are pollutants, within the meaning of CWA Section 502(6), since the
discharge of pollutants is regulated under the Act. In the memorandum, EPA argues
that chemical pesticides are not wastes, and therefore are not pollutants, because they
are “EPA-evaluated products designed, purchased and applied to perform their
intended purpose of controlling target organisms in the environment.”10 Neither does
EPA believe that biological pesticides (e.g., products derived from plants, fungi,
bacteria, or other non-man-made synthesis and which can be used for pest control
that usually do not have toxic effects on animals and people, compared with many
chemical pesticides) are pollutants. Both chemical and biological pesticides are
intended to perform essentially similar functions, and it would be “nonsensical” to
treat chemical and biological pesticides differently.11
Responses to the Interim Guidance. The guidance was issued in part to
clarify the agency’s interpretations of legal rulings on the issue and to remove any
uncertainty regarding application of herbicides and pesticides to combat vector-borne
diseases that are transported by mosquitoes. However, EPA’s guidance satisfied few
stakeholders, for differing reasons.
Environmental activists strongly objected to EPA’s position, which they argue
is contrary to the recent judicial rulings. These groups reiterated points made by the
court in the Ninth Circuit rulings, namely that chemical and biological pesticides are
pollutants within the meaning of the CWA, as the law defines pollutants broadly and
includes, among other substances, chemical wastes, biological materials, and
agricultural wastes. As that court has declared, environmentalists said, FIFRA does
not override the CWA, and the two statutes must work in tandem to prevent injury
to aquatic life. They also argue that EPA is wrongly deciding that materials with
beneficial uses should not be construed as pollutants under the CWA.
9 Ibid., p. 48387.
10 Ibid., p. 48388.
11 Ibid.

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Environmentalists’ objections also go to the policy problems of relying on
FIFRA to protect water quality from pesticide applications, as that would be the
result of EPA’s position. What that position comes down to, critics says, turns on
whether the pesticide application conforms procedurally with FIFRA requirements,
not what is the water quality impact of that pesticide. Other concerns raised by critics
include the fact that while the FIFRA registration process calls for ecological risk
assessment that may be adequate for producing nationally applicable labels, it does
not ensure that local water quality standards are maintained and does not account for
additive or synergistic effects of multiple pollutants discharged to a particular
waterbody. Environmentalists argue that the CWA provides the means to determine
whether, and under what conditions, it is safe to discharge a particular pesticide into
a particular body of water, and that FIFRA’s nationally uniform labeling system
cannot do that. FIFRA is not specifically charged with ensuring the chemical,
physical, and biological integrity of U.S. waterways, and satisfaction of a pesticide’s
FIFRA labeling criteria does not automatically satisfy water quality concerns, as the
NPDES permit process is intended to do. They also maintain that FIFRA fails to
consider the lasting effects that pesticide residues have on a local ecosystem and that
localized analysis of the environmental impact of pollutant discharges under the
CWA is necessary, due to the toxic residues that remain after pesticide application,
which FIFRA does not address.
Additionally, activists say, FIFRA has no provisions for publicly accessible
compliance information and no means of citizen enforcement in case of violations,
as does the CWA. FIFRA essentially assumes users’ compliance with restrictions on
a pesticide’s label.
Industry welcomed the thrust of the Interim Statement but also urged that it be
broadened. Agricultural groups requested that EPA include other classes of
applications under the guidance, such as aquaculture and crop production. Beyond
the types of uses described in the proposed rule, some argue that EPA should
additionally clarify that CWA permits are not required in the case of pesticides that
are applied over land and then inadvertently impact waterbodies through drift and
migration. Many of these commenters requested that EPA address the issues
definitively in a rulemaking, rather than in non-binding guidance. In their view,
without clear regulatory language supporting EPA’s interpretation, pesticide
applicators would still face the prospect of citizen lawsuits and NPDES permit
requirements.
Many states and local governments, including agriculture agencies, irrigation
districts, and mosquito abatement districts, strongly endorsed EPA’s proposed
clarification of its interpretation of the two laws. However, a few — especially states
located in the jurisdiction of the federal Ninth Circuit — expressed a different view.
The Oregon Department of Environmental Quality and California State Water
Resources Control Board commented that the Interim Statement conflicts with legal
precedent in the Headwaters case. They urged EPA, if it wishes to create an
exemption for pesticide applications conducted in compliance with FIFRA, to ask
Congress to amend the Clean Water Act and FIFRA accordingly.
Final Guidance and Proposed Rulemaking. In January 2005, 18 months
after issuing the Interim Guidance memorandum, EPA issued final guidance in the

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form of an Interpretive Statement and Guidance and simultaneously proposed a
formal rulemaking to codify the substance of the guidance in CWA regulations.12
The 2005 Interpretive Statement closely mirrors the July 2003 Interim Statement
and Guidance. EPA modified the 2003 guidance in several minor ways, such as
clarifying that compliance with “relevant requirements under FIFRA” refers to
requirements relevant to protection of water quality and clarifying that the exclusion
from permit requirements applies to control of pests on or above U.S. waters and
pests near water, as well. The final Interpretive Statement does not endorse the
expansion sought by some to clarify that CWA permits also are not required for
pesticide applications to land and crops that may drift to nearby waterbodies.
Press reports indicated that EPA termed the final policy an “interpretive
statement” rather than “guidance” in an effort to get more deference from the courts
when agency policies face legal challenge. Many expect the policy and final rule,
if one is issued, to be challenged, and EPA also hopes that, because the agency
solicited public comments on the 2003 Interim Statement, courts will give deference
to the final policy.13
The second portion of EPA’s January 2005 action, proposing a rulemaking to
codify the Interpretive Statement, would modify EPA rules (40 CFR §122.3) to
specify that NPDES permits are not required for the application of pesticides to U.S.
waters consistent with all relevant requirements under FIFRA in order to control
pests that are present over waters of the United States, including near such waters,
that results in a portion of the pesticides being deposited to U.S. waters. EPA rules
currently do not address the relationship of the two laws on this issue. The public
comment period on the proposal closed April 4, 2005.
The CWA allows states to adopt water quality policies and rules more stringent
than EPA requires. As noted above, some stakeholders fear that, so long as EPA’s
policy is articulated just as guidance, states could choose to require CWA permits for
pesticide application. Thus, one rationale for formalizing the EPA policy in a rule
is presumably to restrict that possibility. In the 2005 Interpretive Statement, the
agency said that, under this interpretation, “a pesticide applicator is assured that
complying with relevant requirements under FIFRA will mean that the activity is not
also subject to the distinct NPDES permitting requirements of the CWA.”14
However, EPA also noted that the policy does not preclude states from further
limiting the use of a particular pesticide in order to address local water quality
concerns. Some may see these two statements as being somewhat inconsistent.
In comments on the 2003 interim guidance, a number of critics argued that
EPA’s interpretation of the two laws represented a reversal of positions the agency
12 U.S. Environmental Protection Agency, “Application of Pesticides to Waters of the United
States in Compliance With FIFRA, proposed rulemaking and notice of interpretive
statement,” 70 Federal Register 5093, Feb. 1, 2005.
13 Susan Bruninga, “Discharge Permit Not Needed for Application of Pesticides, EPA
Proposed Rule, Policy Say,” Daily Environment Report, Jan. 27, 2005, p. A-9.
14 70 Federal Register 5100.

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had taken in the Forsgren case when it supported environmentalists’ appeal of the
district court’s original ruling. In its amicus brief in that case, EPA stated that the
regulatory review required by each of the statutes is different and considers different
factors and that FIFRA does not take into account all factors needed to judge whether
a particular pesticide discharge should be permitted under the CWA. Responding to
those points, the EPA General Counsel issued a memorandum contemporaneously
with the January 2005 actions to explain some of those prior statements. The
memorandum acknowledged that there could seemingly be inconsistencies in
previous government positions but that, on detailed examination, differences are
based on the specific facts of that litigation, not the general policies now being
addressed. Moreover, in the current context, the Interpretive Statement fully reflects
“the exercise of the Agency’s legal and policy judgment after considering public
comments” and “the evolution in the Agency’s thinking in certain respects since the
brief was filed in that case.”15
Congressional Interest and Future Options
Congressional interest in these issues became apparent after the first federal
appeals court ruling in one of the key FIFRA-CWA cases, the 2001 Headwaters v.
Talent ruling. Two congressional hearings held since then focused on implications
of the cases for pesticide use generally and for local governments’ efforts to control
mosquito-borne illnesses such as West Nile Virus. Legislation to clarify the scope
of the CWA regarding the use of FIFRA-approved pesticides, fire retardants, and
biological control organisms has been introduced in the 109th Congress
In October 2002, the House Transportation and Infrastructure Committee’s
Subcommittee on Water Resources and Environment held a fact-finding hearing on
the issues. The subcommittee’s particular concern derived in part from the fact that
one of the key practices used to manage stormwater runoff, which is regulated under
the Clean Water Act, is to collect and hold it in retention ponds, basins, drainage
ditches, etc. Such practices can be at odds with the public health objective of
controlling insect-breeding habitat by eliminating or draining sources of standing
water. Stormwater management practices typically allow collected water to drain
slowly, while public health efforts would prefer that it be removed quickly. Another
way to address the public health concerns is to spray pesticides on stormwater
management structures and other areas of standing waters. The question for this
subcommittee was the uncertainty raised by the litigation over the CWA-FIFRA
issues for communities, industries, and others needing to maintain stormwater control
systems. An EPA official, while acknowledging that the issue of CWA jurisdiction
over pesticide spraying is “new territory” for the agency, said that EPA believes there
is no inherent conflict between protecting water quality and preventing mosquito-
borne disease. At the hearing, Members and public witnesses urged EPA to provide
guidance to resolve uncertainties raised by the court rulings.
15 Ann R. Klee, EPA General Counsel, “Analysis of Previous Federal Government
Statements on Application of Pesticides to Waters of the United States in Compliance with
FIFRA,” Memorandum, Jan. 24, 2005, pp. 1-2.

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A hearing held by the House Government Reform Committee’s Subcommittee
on Energy Policy, Natural Resources and Regulatory Affairs in October 2004
examined challenges to controlling West Nile Virus. The hearing was an opportunity
for some Members and witnesses to express the view that EPA’s July 2003 interim
guidance, while helpful in clarifying EPA’s position, doesn’t provide sufficient legal
certainty, since it does not bind non-federal entities or bar citizen lawsuits.
Witnesses said that EPA’s guidance is a nonbinding legal document that would not
deter filing of citizen lawsuits seeking to impose a permit requirement. Supporters
of this view urged EPA to settle the legal questions through a formal rulemaking to
revise CWA rules, as EPA subsequently did propose in January 2005. Others at this
hearing agreed on the need for a formal rulemaking, but said that in doing so, EPA
should reverse the interpretation detailed in the guidance, not codify it.
In the 108th Congress, Senate appropriators included language in their report on
EPA’s FY2005 budget that called on EPA to finalize the interim guidance by
December 2004 and to clarify the long-standing distinction between agriculture and
silviculture activities that do and do not require CWA permits.16
In 2003, a number of House and Senate Members urged the Bush
Administration to support Supreme Court review of the Forsgren case, but ultimately
the Administration did not endorse industry’s request for a review, and the Court did
not grant certiorari. Some Members of Congress also submitted comments in support
of the July 2003 interim guidance document and the January 2005 regulatory
proposal.17
Options for EPA and Congress. EPA’s current options involve both the
Interpretive Statement and proposed rulemaking. After reviewing the public
comments, EPA could move forward with a final rule to promulgate a CWA
regulation conforming with the Interpretive Statement. Or, EPA could revise the
proposed regulatory language, either to narrow or to expand a permit exception. If
EPA does issue a final rule, a narrower interpretation than what was proposed seems
highly unlikely, based on the agency’s consistently held view and the wide support
that it received in comments on the 2003 interim guidance statement. Judicial
challenges to a rule, if issued, can be anticipated and will presumably address many
issues previously addressed by the courts in litigation discussed in this report.
Alternatively, the agency could elect to rely entirely on the January 2005
guidance document and not finalize a CWA rule, although such a choice would
presumably be least satisfactory to many in the regulated community. EPA is not
under any statutory or judicial mandate to adopt a rule. In either case, EPA seems to
have some doubt that a rule would end the debate over the need for permits. At the
October 2004 House subcommittee hearing, an EPA official said that even if EPA
16 U.S. Senate, Committee on Appropriations, “Departments of Veterans Affairs and
Housing and Urban Development, and Independent Agencies Appropriations Bill, 2005,”
report to accompany S. 2825, 108th Cong., 2d sess., pp. 110-111.
17 Materials included in the EPA docket, No. OW-2003-0063, including submissions by
Members of Congress, can be found on EPA’s website, at [http://docket.epa.gov/edkpub/
do/EDKStaffCollectionDetailView?objectId=0b0007d480178caf].

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does promulgate a rule, states will still have the discretion to continue to require
permits, and a formal rule would not preclude citizen lawsuits from seeking to force
localities to file for CWA permits. EPA made these same points in the January 2005
Interpretive Statement, as noted above.
An entirely different option would be for EPA to reverse course and change its
long-standing interpretation of the two laws, thus agreeing that CWA permits are
required for pesticide applications in, on, or near waterbodies. Again, EPA seems
unlikely to pursue this option on its own initiative. If CWA permits were to be
required, one option for minimizing the regulatory burden on permit writers and the
regulated community is to utilize general permits, rather than individual permits.
However, some industry groups are uncertain about the utility of such an approach,
fearing that if broadly applicable general permits are issued, they likely would be
challenged by opponents as inadequate.
Regardless of the actions that EPA takes with respect to the guidance and
proposed rulemaking, a related issue is EPA’s implementation of FIFRA and
procedures used to evaluate the risks of pesticides during the registration process.
Environmentalists have argued for some time that EPA’s risk review procedures are
inadequate because they fail to account for synergistic and additive effects, as well
as sub-lethal and indirect effects of pollutants on the environment. In 2003, EPA
convened a task force of officials from its pesticide and water quality offices to
explore, among other things, whether the agency’s pesticide review processes are
protective enough to meet water quality standard limits. One outcome of the task
force’s review could be changes to FIFRA implementation in order to address some
of these concerns.
Congress has several options, too, such as conducting further oversight of the
issues. Other options could involve legislation to revise the CWA and or FIFRA, and
some have expressed the view that EPA should ask Congress to legislate a resolution
of these possible conflicts. Environmental activists, of course, would favor clarifying
that permits are required, since they believe that EPA’s approach in the guidance and
proposed rule is unlawful.
Alternatively, Congress could enact legislation to clarify that permits are not
required for some or all pesticide spraying activity, as favored by members of the
pesticide application industry and others, since many of these stakeholders believe
that the EPA guidance does not provide adequate protection from citizen suits. A bill
intended to do so has been introduced in the 109th Congress (H.R. 1749). It would
provide that NPDES permits are not required for use of FIFRA-approved pesticides;
chemicals, fire retardants, or water used for fire suppression; biological organisms
used for plant pest or weed control; or silviculture activities not currently regulated
as point source activities. As previously discussed, EPA’s final guidance and
proposed rulemaking address situations in which pesticides are put directly in waters
to control pests (e.g., controlling mosquito larvae or aquatic weeds) or cases of
pesticides that are present over water and a portion of the pesticide is deposited in the
water (e.g., aerial application to a forest canopy where waters of the United States
may be present below the canopy). The pending legislation, in addition to codifying
these policies, also addresses other broader circumstances that EPA so far has

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declined to include: applications over land areas that may drift over and into waters
of the United States.18
Many environmental advocates believe that legislation is not needed because,
in their view, the CWA is clear enough that permits are required for discharge of
pesticides from point sources. What is needed, in their view, is for EPA to reject
both the current guidance and the proposed rule and to revise its interpretation of the
laws in accordance with judicial rulings. At the same time, many who would favor
legislation supporting a narrow view of the CWA’s jurisdiction acknowledge that any
legislative effort would be controversial and could be seen as representing not
clarification but, rather, an environmental rollback.
18 Reflecting a different approach, Rep. Goodlatte introduced a bill in the 107th Congress,
H.R. 5329, that proposed amending FIFRA to expand the definition of what constitutes a
“public health” pesticide in an effort to ease industry’s ability to register pesticides for use
in combating mosquito-borne illnesses.

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