Residents of Natick, Mass., organize against a plan to spray pesticides into Lake Cochituate.

Cincinnati, OH – On August 3, 2009, NELC attorneys defeated efforts by agriculture and pesticide industry groups to compel the reconsideration of a January 2009 decision allowing the regulation of aquatic pesticides under the Clean Water Act. That decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit was an important victory for the environment, as it invalidated a Bush-era regulation exempting applications of pesticides to and over water from the Clean Water Act’s permit program. Many of these pesticides contain chemical or biological agents that can be harmful to aquatic life.

Unhappy with the prospect of regulation, 39 industry groups asked the Sixth Circuit to order a rehearing of the case before all 24 of the judges on the court. Federal courts of appeal are authorized to call for such “en banc” review when they believe a decision of a three-judge panel may be in error. 

In seeking rehearing, the industry groups claimed the panel’s decision will have sweeping effects on agriculture, despite careful language in that opinion limiting its scope. Industry also argued that the Clean Water Act is ambiguous in its use of the simple term “from.” The full Sixth Circuit roundly rejected these arguments – not a single judge voted in favor of reconsideration.

“The panel’s decision was well-reasoned and wholly in accord with prior judicial precedent,” said NELC attorney Joe Mann. “Industry is trying to ‘muddy the waters,’ both literally and figuratively.”

Undaunted, industry groups have now filed petitions for review with the U.S. Supreme Court. Meanwhile, EPA is working to develop a permitting program by April 2011.