EPA's approval of herbicide label under FIFRA does not preclude need to obtain discharge permit under CWA

Law Reporter, Jun 2001

Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526 (9th Cir. 2001).

The Ninth Circuit Court of Appeals held that Environmental Protection Agency (EPA) approval of a herbicide label under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 etseq., does not preclude the need to obtain a discharge permit for the herbicide under the Clean Water Act (CWA), 33 U.S.C. 1251 etseq.

Here, nonprofit environmental groups, on behalf of their members, sued an irrigation district, alleging it violated the CWA by discharging a herbicide into its irrigation canals without a permit. The trial court granted defendant summary judgment, holding that no permit was necessary because the herbicide's label-which was approved by the EPA under FIFRA-does not state that a CWA permit is required for use.

Reversing, the Ninth Circuit noted that the CWA and FIFRA each serve a different purpose. The CWA's objective is to maintain the physical, chemical, and biological integrity of the nation's waters through permit requirements that must be met before any pollutant is discharged into navigable waters, the court observed. FIFRA's objective is to protect human health and the environment from pesticides through a nationally uniform labeling system requiring registration of those products. Because FIFRA's labels are the same nationwide, the court explained, the act does not have a system for granting discharge permits for individual applications of herbicides. Therefore, local environmental conditions are not considered under FIFRA as they are under the CWA's permit program.

In this case, defendant is required to follow the label directions when applying the herbicide to the canal. However, where the herbicide will enter navigable waters, FIFRA provides no method for analyzing the local impact of its discharge and regulating it, the court said. The permit requirement under the CWA provides the local monitoring FIFRA does not.

Moreover, the court noted that the EPA issued a public notice that a herbicide label's failure to include the possible need for a permit under the CWA does not relieve users of the product from CWA requirements. Further, the court cited case law holding that registration under FIFRA is inadequate to address environmental concerns under the National Environmental Policy Act, 42 U.S.C. 431-- 435. Adopting the reasoning from those cases, the court explained that FIFRA registration is a cost-benefit analysis that no unreasonable risk exists to humans or the environment, taking into account the economic, social, and environmental costs and benefits of the use of a pesticide. The granting of a CWA permit, however, is not based on such an analysis, but rather on a determination that the discharge of a pollutant satisfies the EPA's effluent limitations designed to protect water quality. Thus, the registration and labeling of the herbicide under FIFRA does not preclude the need for a permit under the CWA, and the label's failure to specify a permit requirement does not mean the CWA does not apply to the herbicide's use.

Accordingly, the court remanded with instructions to enter partial summary judgment in favor of plaintiffs on their liability claim and to conduct firther proceedings on damages.

Plaintiffis' Counsel

Charles M. Tebbutt, Eugene, Or.