RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0004p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

THE NATIONAL COTTON COUNCIL OF

AMERICA, et al.,

 Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

 Respondent.

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Nos. 06-4630; 07-3180/

3181/3182/3183/3184/3185/

3186/3187/3191/3236

On Petition for Review of Final Action of the

United States Environmental Protection Agency.

Nos. OW-2003-0063; 40 CFR Part 122.

Argued: April 29, 2008

Decided and Filed: January 7, 2009 

Before: GUY, SUHRHEINRICH, and COLE, Circuit Judges.

_________________

COUNSEL

ARGUED: Charles Tebbutt, WESTERN ENVIRONMENTAL LAW CENTER, Eugene,

Oregon, for Petitioners. Alan D. Greenberg, UNITED STATES DEPARTMENT OF

JUSTICE, Denver, Colorado, for Respondent. Claudia M. O’Brien, LATHAM &

WATKINS, Washington, D.C., Kirsten L. Nathanson, CROWELL & MORING,

Washington, D.C., for Intervenors. ON BRIEF: Charles Tebbutt, WESTERN

ENVIRONMENTAL LAW CENTER, Eugene, Oregon, Lauren E. Brown,

WATERKEEPER ALLIANCE, Irvington, New York, Daniel E. Estrin, PACE

ENVIRONMENTAL LITIGATION CLINIC, White Plains, New York, Reed W. Super,

MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., COLUMBIA UNIVERSITY

SCHOOL OF LAW, New York, New York, Charles C. Caldart, NATIONAL

ENVIRONMENTAL LAW CENTER, Seattle, Washington, Steven Schatzow, LAW

1
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OFFICES OF STEVEN SCHATZOW, Washington, D.C., for Petitioners. Alan D.

Greenberg, UNITED STATES DEPARTMENT OF JUSTICE, Denver, Colorado, for

Respondent. Claudia M. O’Brien, Kenneth W. Weinstein, Davis B. Tyner, LATHAM &

WATKINS, Washington, D.C., Kirsten L. Nathanson, Ellen Steen, CROWELL &

MORING, Washington, D.C., for Intervenors. Elliot Silverman, McDORMOTT WILL &

EMERY LLP, Irvine, California, for Amicus Curiae. 

_________________

OPINION

_________________

COLE, Circuit Judge. These proceedings involve a final regulation issued by the

Environmental Protection Agency (the “EPA”) under the Clean Water Act, 33 U.S.C. § 1251

et seq. The Clean Water Act regulates the discharge of “pollutants” into the nation’s waters

by, among other things, requiring entities that emit “pollutants” to obtain a National

Pollutant Discharge Elimination System (“NPDES”) permit. Id. §§ 1311(a), 1342. On

November 27, 2007, the EPA issued a Final Rule concluding that pesticides applied in

accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (the “FIFRA”) are

exempt from the Clean Water Act’s permitting requirements. See 71 Fed. Reg. 68,483 (Nov.

27, 2006) (the “Final Rule”). Two different groups of Petitioners—one representing

environmental interest groups and the other representing industry interest groups—oppose

the EPA’s Final Rule as exceeding the EPA’s interpretive authority. The EPA defends the

Final Rule by arguing that the terms of the Clean Water Act are ambiguous and that the Final

Rule is a reasonable construction of the Clean Water Act entitled to deference from this

Court. We cannot agree. The Clean Water Act is not ambiguous. Further, it is a

fundamental precept of this Court that we interpret unambiguous expressions of

Congressional will as written. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-43 (1984). Therefore, we hold that the EPA’s Final Rule is not a reasonable

interpretation of the Act and VACATE the Final Rule.
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I. BACKGROUND

A. The Regulatory Background

1. The Clean Water Act

Congress enacted the Clean Water Act “to restore and maintain the chemical,

physical and biological integrity of the Nation’s waters.” Nat’l Wildlife Fed’n v. Consumers

Power Co., 862 F.2d 580, 582 (6th Cir. 1988) (quoting 33 U.S.C. § 1251(a)). The goal of

the Clean Water Act is to achieve “water quality which provides for the protection and

propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.”

33 U.S.C. § 1251(a)(2). Thus, the Act provides that “the discharge of any pollutant by any

person shall be unlawful.” Id. § 1311(a). “Pollutant” is a statutorily defined term that

includes, at least, “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.” Id. § 1362(6). The Supreme Court has held that

this list is not exhaustive and that “pollutant” should be interpreted broadly. Rapanos v.

United States, 547 U.S. 715, 724 (2006). 

The Clean Water Act prohibits the discharge of any “pollutant” into navigable waters

from any “point source” unless the EPA issues a permit under the NPDES permitting

program, 33 U.S.C. §§ 1311(a), 1342, where a “point source” is “any discernible, confined,

and discrete conveyance . . . from which pollutants are or may be discharged.” Id.

§ 1362(14). The permitting program constitutes an exception to the Clean Water Act’s

prohibition on pollutant discharges into the Nation’s waters. Id. §§ 1311(a), 1342; 40 C.F.R.

§ 122.3. Thus, if a party obtains a permit, the discharge of pollutants in accordance with that

permit is not unlawful. Id.

Before a permit is issued, the EPA, or a state agency that has been approved by the

EPA, evaluates the permit application to ensure that the discharge of a pollutant under the

proposed circumstances will not cause undue harm to the quality of the water. See 33 U.S.C.

§ 1342. In addition to granting permits for specific discharges, the EPA and state authorities

may also grant general permits that allow for the discharge of a specific pollutant or type of
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1

The State of California’s State Water Resources Control Board (the “Board”) also issued a

general permit that covered all aquatic pesticide discharges, as long as the discharger certified that

alternative options had been evaluated and that any impact the pesticide application had on the water

quality would be reported to the Board. General Permit No. CAG990003, 2001 Cal. ENV LEXIS 12, at

*1, 3-4, 19-21 (July 19, 2001). 

pollutant across an entire region. Id. For example, prior to the EPA’s adoption of the Final

Rule, the State of Washington had issued a general permit to allow for the application of all

aquatic pesticides in the State. See Acquatechnex v. Washington Dep’t of Ecology, PCHB

No. 02-090, 2002 WA ENV LEXIS 87, *2-5 (Pollution Control Hr’gs Bd. Dec. 24, 2002).1

As a result, users of aquatic pesticides in Washington could discharge those pesticides

covered by the rule without obtaining a permit. These general permits “greatly reduce

[the] administrative burden by authorizing discharges from a category of point sources

within a specified geographic area.” S. Florida Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95, 108 n.* (2004) (citing 40 C.F.R. § 122.28(b)(2)(v)). “Once [the]

EPA or a state agency issues such a [general] permit, covered entities, in some cases,

need take no further action to achieve compliance with the NPDES besides adhering to

the permit conditions.” Id.

2. The Federal Insecticide, Fungicide, and Rodenticide Act

The EPA also regulates the labeling and sale of pesticides under the Federal

Insecticide, Fungicide, and Rodenticide Act. Under the FIFRA, all pesticides sold in the

United States must be registered with the EPA. See 7 U.S.C. § 136 et seq. The EPA

approves an insecticide for registration only when it finds that the chemical, “when used

in accordance with widespread and commonly recognized practice . . .[,] will not

generally cause unreasonably adverse effects on the environment.” No Spray Coalition

v. City of New York, 351 F.3d 602, 604-05 (2d Cir. 2003) (quoting 7 U.S.C.

§ 136a(c)(5)(D)). Under the FIFRA, the EPA issues a “label” for each registered

pesticide, indicating the manner in which it may be used; the statute makes it unlawful

“to use any pesticide in a manner inconsistent with its labeling.” Id. (quoting 7 U.S.C.

§ 136j(a)(2)(6)).
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For nearly thirty years prior to the adoption of the Final Rule, pesticide labels

issued under the FIFRA 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 an NPDES permit.” EPA’s Policy and Criteria Notice 2180.1 (1977). Despite

amendments made to the FIFRA’s labeling requirements over the years, pesticide labels

have always included a notice about the necessity of obtaining an NPDES permit. See

EPA’s Policy and Criteria Notice 2180.1 (1984); Pesticide Registration (“PR”) Notice

93-10 (July 29, 1993); PR Notice 95-1 (May 1, 1995); see also EPA-738-7-96-007 (Feb.

1996), available at http://www.epa.gov/oppsrrd1/REDs/factsheets/3095fact.pdf,

(Pesticide Reregistration notification for 4, 4- Dimethyloxazolidine) (referring to the

labeling requirement described in the PR Notice). 

3. The Regulatory Framework Under the Final Rule

Under the Clean Water Act, pollutants may only be discharged according to a

permit unless they fit into one of the exceptions listed in the federal regulations at 40

C.F.R. § 122.3. The Final Rule revises the regulations by adding pesticides to these

exceptions as long as they are used in accordance with the FIFRA’s requirements. 71

Fed. Reg. at 68,485, 68,492. Specifically, the Final Rule states that pesticides applied

consistently with the FIFRA do not require an NPDES permit in the following two

circumstances: 

(1) The application of pesticides directly to waters of the

United States in order to control pests. Examples of such

applications include applications to control mosquito

larvae, aquatic weeds, or other pests that are present in

waters of the United States.

(2) The application of pesticides to control pests that are

present over waters of the United States, including near

such waters, where a portion of the pesticides will

unavoidably be deposited to waters of the United States

in order to target the pests effectively; for example, when

insecticides are aerially applied to a forest canopy where

waters of the United States may be present below the
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Agribusiness Association of Iowa, BASF Corporation, Bayer CropScience LP, CropLife

America, Delta Council, Eldon C. Stutsman, Inc., FMC Corporation, Illinois Fertilizer & Chemical

Association, The National Cotton Council of America, Responsible Industry for a Sound Environment,

Southern Crop Production Association, and Syngenta Crop Protection, Inc., LP. 

3

Baykeeper, Californians for Alternatives to Toxics, California Sportfishing Protection Alliance,

National Center for Conservation Science and Policy, Oregon Wild, Saint John’s Organic Farm,

Waterkeeper Alliance, Inc., Peconic Baykeeper, Inc., Soundkeeper, Inc., Environmental Maine, and Toxics

Action Center. 

canopy or where pesticides are applied over or near water

for control of adult mosquitoes or other pests.

40 C.F.R. § 122.3(h).

Although the EPA, through its Final Rule, takes the position that pesticides are

not generally pollutants, it makes an exception for “pesticide residuals,” which

“include[] excess amounts of pesticide.” 71 Fed. Reg. at 68,487. “Pesticide residuals”

are those portions of the pesticide that “remain in the water after the application and its

intended purpose (elimination of targeted pests) have been completed . . . .” Id. The

EPA concedes that pesticide residue (unlike pesticides generally) is a pollutant under the

Clean Water Act because it is “waste[] of the pesticide application.” Id. Nonetheless,

the EPA contends that pesticide residue is not subject to the NPDES permitting program

because “at the time of discharge to a water of the United States, the material in the

discharge must be both a pollutant, and from a point source.” Id. According to the EPA,

the residue cannot be subject to the permitting program because by the time it becomes

a pollutant it is no longer from a “point source.” Since no “point source” is at play, the

EPA reasons, pesticide residue is a “nonpoint source pollutant” and therefore not subject

to the permitting requirements. Id.

B. Procedural Background

Timely petitions for review of the Final Rule were filed in the First, Second,

Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits by either

the “Industry Petitioners”2

 or the “Environmental Petitioners.”3 The petitions for review

were consolidated in this circuit by an order of the Judicial Panel on Multidistrict
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4

Industry Intervenors include each of the Industry Petitioners listed above as well as American

Farm Bureau Federation and American Forest & Paper Association. 

5

American Mosquito Association submitted a brief as amicus curiae in support of the Final Rule.

Litigation, under 28 U.S.C. §§ 1407 and 2112(a)(3). The self-titled “Industry

Intervenors”4

 filed a motion to intervene in support of the Final Rule.5

Environmental Petitioners filed a timely motion to dismiss the petitions because

of lack of subject matter jurisdiction or, alternatively, to transfer the cases to the Ninth

Circuit. Industry Petitioners, the EPA, and Industry Intervenors opposed this motion.

The Environmental Petitioners have also filed a complaint challenging the Final Rule in

the Northern District of California in order to preserve review of the Final Rule in the

event this Court grants their motion to dismiss. On July 24, 2007, we denied the motion

to transfer and deferred the decision on the question of subject matter jurisdiction. 

II. JURISDICTION

Environmental Petitioners contend that this dispute should be dismissed for lack

of subject matter jurisdiction, arguing that original review of the Final Rule by the courts

of appeals is not covered by the grant of original jurisdiction set forth in the Clean Water

Act, 33 U.S.C. § 1369(b)(1). Environmental Petitioners are correct that “Congress did

not intend court of appeals jurisdiction over all EPA actions taken pursuant to the Act.”

Lake Cumberland Trust, Inc. v. EPA, 954 F.2d 1218, 1222 (6th Cir. 1992) (quoting Boise

Cascade Corp. v. EPA, 942 F.2d 1427, 1431 (9th Cir. 1991)). However, we conclude

that, at a minimum, §1369(b)(1)(F) encompasses the action before us.

Under 33 U.S.C. § 1369(b)(1)(F), a party may challenge EPA actions “issuing

or denying any permit under [33 U.S.C.] section 1342 . . .” in the appropriate circuit

court. The Clean Water Act’s permitting program is set forth in § 1342. The

jurisdictional grant of § 1369(b)(1)(F) authorizes the courts of appeals “to review the

regulations governing the issuance of permits under section 402, 33 U.S.C. § 1342, as

well as the issuance or denial of a particular permit.” Am. Mining Cong. v. EPA, 965

F.2d 759, 763 (9th Cir. 1992). Thus, in Natural Resources Defense Council, Inc. v. EPA,
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966 F.2d 1292, 1296-97 (9th Cir. 1992), the court held that it had jurisdiction to review

an EPA rule exempting uncontaminated storm-water discharge from the permitting

regulations. The Natural Resources court concluded that it had “the power to review

rules that regulate the underlying permit procedures.” Id. at 1297 (citing NRDC v. EPA,

656 F.2d 768, 775 (D.C. Cir. 1981) and E.I. du Pont de Nemours & Co. v. Train, 430

U.S. 112, 136 (1976)). The Final Rule before us today likewise regulates the permitting

procedures, and we therefore conclude that jurisdiction is proper under § 1369(b)(1)(F).

III. DISCUSSION

A. Standard of Review

Our review of agency decisions has two components. First, we determine

whether the agency’s chosen action complies with Chevron. 467 U.S. at 842-45; see

United States v. Mead Corp., 533 U.S. 218, 227 (2001); Riverkeeper, Inc. v. EPA

(“Riverkeeper II”), 475 F.3d 83, 95 (2d Cir. 2007). When conducting Chevron review

of the Final Rule, we “examine the [Final Rule] against the statute that contains the

EPA’s charge.” Riverkeeper, Inc. v. EPA (“Riverkeeper I”), 358 F.3d 174, 183 (2d Cir.

2004). Here, we must determine whether “the intent of Congress is clear as to the

precise question at issue.” Nations Bank of N.C., N.A. v. Variable Annuity Life Ins. Co.,

513 U.S. 251, 257 (1995); Chevron, 467 U.S. at 842. “In making [this] threshold

determination under Chevron, a reviewing court should not confine itself to examining

a particular statutory provision in isolation. Rather, the meaning—or ambiguity—of

certain words or phrases may only become evident when placed in context.” Nat’l Ass’n

of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2534 (2007). If the intent

of Congress is clear, “that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress.” Chevron, 467

U.S. at 842-43. If, and only if, the statute is silent or ambiguous regarding the question

at issue, we then move to step two of Chevron review and ask whether “the agency’s

answer is based on a permissible construction of the statute.” Id. at 843. If the agency’s
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“interpretation is reasonable, we must defer to its construction of the statute.” Wachovia

Bank, N.A. v. Watters, 431 F.3d 556, 562 (6th Cir. 2005).

The second part of our review would require us to consider the Final Rule under

the standards set forth by the Administrative Procedure Act section 10(2)(e), 5 U.S.C.

§ 706(2) (the “APA”), under which we are required to “hold unlawful and set aside

agency action, findings, and conclusions” that, among other criteria, are found to be

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious where

the agency has relied on factors that Congress has not intended it to

consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency experience. 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);

see also Citizens Coal Council, 447 F.3d at 890. When conducting this form of review,

we ensure that the agency “examine[d] the relevant data and articulate[d] a satisfactory

explanation for its action including a rational connection between the facts and the

choice made.” Motor Vehicle Mfrs., 463 U.S. at 43. “The court is required to make a

‘searching and careful review’ in its assessment of the agency action, but ‘the ultimate

standard of review is a narrow one.’” Citizens Coal Council, 447 F.3d at 890 (quoting

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). 

B. The Parties’ Positions

1. The Petitioners

Environmental Petitioners argue: (1) that the EPA exceeded its authority under

the Clean Water Act in issuing a rule that excludes pesticides from the definition of

“pollutant” under 33 U.S.C. § 1362(6); (2) that the EPA exceeded its authority under the

Clean Water Act when it determined that, while pesticides are discharged by point

sources, the residue of these pesticides is nonetheless a “nonpoint source pollutant”; and

(3) that the EPA may not exempt FIFRA-compliant applications of pesticides from the
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requirements of the Clean Water Act. Industry Petitioners, on the other hand, argue that

the Final Rule is arbitrary and capricious because it treats pesticides applied in violation

of the FIFRA as pollutants, while it treats the very same pesticides used in compliance

with the FIFRA as non-pollutants. In other words, the Industry Petitioners complain that

whether something constitutes a pollutant should not hinge upon compliance with the

FIFRA.

2. The EPA

As described above, the EPA’s Final Rule exempts from the NPDES permitting

program pesticides that are applied directly to the Nation’s waters, or near such waters,

in order to control pests. 40 C.F.R. § 122.3(h). The EPA says that its Final Rule

exempts both pesticides generally and “pesticide residue,” which includes “excess

pesticide.” 71 Fed. Reg. at 68,487.

The EPA provides two reasons that its Final Rule is reasonable. First, the EPA

argues that the Clean Water Act as it applies to pesticides is ambiguous. The EPA

contends that it reasonably determined that pesticides applied according to the FIFRA

requirements are not pollutants and therefore are not subject to the NPDES permitting

program. The EPA reasons that “Congress defined the term ‘pollutant’ in the Clean

Water Act to mean one of 16 specific items.” (EPA Br. at 22.) Of these sixteen, the EPA

states that pesticides, which are either chemical or biological in nature, may only be

considered to be “chemical wastes” or “biological materials.” 71 Fed. Reg. at 68,486.

The EPA argues that pesticides are not “chemical wastes” in the ordinary dictionary

definition of the word “waste,” because waste is that which is “eliminated or discarded

as no longer useful or required after the completion of a process.” Id. (quoting The New

Oxford American Dictionary 1905 (Elizabeth J. Jewell & Frank Abate eds., 2001)).

Rather than being wastes, the EPA reasons that pesticides applied according to the

FIFRA’s labeling requirements “are products that the EPA has evaluated and registered

for the purpose of controlling target organisms, and are designed, purchased, and applied

to perform that purpose.” Id. The EPA next concludes that pesticides applied in
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accordance with the FIFRA are not “biological materials” because to find otherwise

would lead to the anomalous result “that biological pesticides are pollutants, while

chemical pesticides used in the same circumstances are not.” Id.

The EPA’s second argument attempts to justify its Final Rule as applied to

pesticide residue. In contrast to pesticides generally, which the EPA contends are not

pollutants, the EPA concedes that pesticide residue and excess pesticide are pollutants

within the meaning of the Clean Water Act because “they are wastes of the pesticide

application.” 71 Fed. Reg. at 68,487. The EPA also concedes that pesticides are

discharged from a point source. Id. at 68,487-88. Nonetheless, the EPA concludes that

no permit is required for pesticide applications that result in excess or residue pesticide

because it interprets the Clean Water Act as requiring permits only for discharges that

are “both a pollutant, and from a point source” at the time of discharge. Id. at 68,487.

C. Analysis

1. Are Pesticides Unambiguously “Pollutants” Within the Meaning of the

Act?

The first question under Chevron is whether the Clean Water Act unambiguously

includes pesticides within its definition of “pollutant.” Under this first step, this Court

determines “whether Congress has directly spoken to the precise question at issue.” 467

U.S. at 842. This is determined by “employing traditional tools of statutory

construction.” Id. The meaning of a statute “is determined by reference to the language

itself, the specific context in which that language is used, and the broader context of the

statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see also Dole

v. United Steelworkers of Am., 494 U.S. 26, 35 (1990) (“Our ‘starting point is the

language of the statute,’ . . . but ‘in expounding a statute, we are not guided by a single

sentence or member of a sentence, but look to the provisions of the whole law, and to its

object and policy.’”) (citations omitted). If Congress’s intent is clear from the statutory

language, then “that intent must be given effect.” Chevron, 467 U.S. at 842-43.
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As noted above, the Clean Water Act defines “pollutant” as “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.”

33 U.S.C. § 1362(6). This Court has previously concluded that the “broad generic

terms” included in the definition of “pollutant” demonstrate Congress’s intent to capture

more than just the items expressly enumerated. United States v. Hamel, 551 F.2d 107,

110 (6th Cir. 1977) (concluding that the Clean Water Act covers, at a minimum, those

pollutants covered under the Refuse Act, which applies to “all foreign substances” not

explicitly exempted from coverage); see also, e.g., Cedar Point Oil Co., 73 F.3d at 565

(“[T]he breadth of many of the items in the list of ‘pollutants’ tends to eviscerate any

restrictive effect.”); No Spray Coalition, Inc., 2005 U.S. Dist. LEXIS 11097, at *17

(citing S. Rep. No. 92-414 at 76 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742).

However, we need not consider the term’s breadth today. Rather, we find the plain

language of “chemical waste” and “biological materials” in § 1362(b) to be

unambiguous as to pesticides. This Court must, therefore, give effect to the Congress’s

expressed intent. See Chevron, 467 U.S. at 842-43. 

a. Chemical Waste

Generally, a court should give a word in a statute its “ordinary, contemporary,

common meaning, absent an indication Congress intended [it] to bear some different

import.” Grand Traverse Band of Ottawa & Chippewa Indians v. Office of U.S.

Attorney, 369 F.3d 960, 967 (6th Cir. 2004) (quoting Williams v. Taylor, 529 U.S. 420,

431-32 (2000)). The EPA refers the Court to The New Oxford American Dictionary

(Jewell & Abate eds. 2001), which defines waste as “eliminated or discarded as no

longer useful or required after the completion of a process.” Id. at 1905. Industry

Petitioners point the Court to Black’s Law Dictionary (8th ed. 2004), which defines

waste as “[r]efuse or superfluous material, esp. that after a manufacturing or chemical

process.” Id. at 1621. Similarly, the Ninth Circuit has accepted the American Heritage

Dictionary’s definition of waste as “any useless or worthless byproduct of a process or
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the like; refuse or excess material.” N. Plains Res. Council v. Fidelity Exploration &

Dev. Co., 325 F.3d 1155, 1161 (9th Cir. 2003); Fairhurst v. Hagener, 422 F.3d 1146,

1149 (2005).

Under any of these definitions of “waste,” “chemical waste” for the purposes of

the Clean Water Act would include “discarded” chemicals, “superfluous” chemicals, or

“refuse or excess” chemicals. As such, under a plain-meaning analysis of the term, we

cannot conclude that all chemical pesticides require NPDES permits. Rather, like our

sister circuit in Fairhurst, we conclude that: so long as the chemical pesticide “is

intentionally applied to the water [to perform a particular useful purpose] and leaves no

excess portions after performing its intended purpose[] it is not a ‘chemical waste,’” 422

F.3d at 1149, and does not require an NPDES permit. Id.

On the other hand, as Environmental Petitioners argue and the EPA concedes,

excess pesticide and pesticide residue meet the common definition of waste. To this

extent, the EPA’s Final Rule is in line with the expressed intent of Congress, as the Rule

defines these pesticide residues as pollutants “because they are wastes of the pesticide

application.” 71 Fed. Reg. at 68,487. The EPA aptly states:

[P]esticides applied to land but later contained in a waste stream,

including storm water regulated under the Clean Water Act, could trigger

the requirement of obtaining an NPDES permit . . . . In addition, if there

are residual materials resulting from pesticides that remain in the water

after the application and its intended purpose has been completed, the

residual materials are pollutants because they are substances that are no

longer useful or required after the completion of a process.

(EPA Br. 29-30.) This Court agrees. 

Therefore, at least two easily defined sets of circumstances arise whereby

chemical pesticides qualify as pollutants under the Clean Water Act. In the first

circumstance, a chemical pesticide is initially applied to land or dispersed in the

air—these pesticides are sometimes referred to as either “terrestrial pesticides” or

“aerial pesticides” and include applications “above” or “near” waterways. At some point

following application, excess pesticide or residual pesticide finds its way into the
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navigable waters of the United States. Pesticides applied in this way and later affecting

the water are necessarily “discarded,” “superfluous,” or “excess” chemical. Such

chemical pesticide residuals meet the Clean Water Act’s definition of “chemical waste.”

In the second circumstance, a chemical pesticide is applied directly and

purposefully to navigable waters to serve a beneficial purpose—such pesticides are often

referred to as “aqueous” or “aquatic” pesticides. As contemplated by the EPA, if

residual aquatic pesticide “remain[s] in the water after the application and [the

pesticide’s] intended purpose has been completed,” then the residue would likewise

qualify as a “chemical waste.” (EPA Br. 29-30.) As such, these chemical wastes would

unambiguously fall within the ambit of the Clean Water Act.

This second scenario, of course, leads to the inevitable quandary that both nonwaste aqueous pesticide and pesticide residual are applied to water at the same moment,

which then gives rise to the question of how the EPA can regulate and permit the

residual. However, this problem is more theoretical than practical. In reality, whether

or not a particular chemical pesticide needs to be regulated can be easily answered by

both the EPA’s and industry’s experience with that pesticide. If, as was the case in

Fairhurst, a chemical such as antimycin leaves no excess portions after performing its

intended purpose, then that chemical’s use need not be regulated. See Fairhurst, 422

F.3d at 1149. If, on the other hand, a chemical pesticide is known to have lasting effects

beyond the pesticide’s intended object, then its use must be regulated under the Clean

Water Act. See also Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532-33

(9th Cir. 2001). 

b. Biological Materials

Continuing our review under Chevron, we must examine the “ordinary,

contemporary, [and] common meaning” of “biological materials.” Grand Traverse

Band, 369 F.3d at 967. Environmental Petitioners point out that Webster’s Third New

International Dictionary (Gove ed. 1993) defines “material” as “of, relating to, or

consisting of matter” and “the basic matter from which the whole or the great part of
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6

The Hammersley court based its conclusion on the fact that shells and shell byproduct of

shellfish-farming facilities are the result of natural biological processes, not the result of a transforming

human process. See Hammersley, 299 F.3d at 1016-17.

something is made.” Id. at 1392. The Oxford English Dictionary provides that

“material” is “that which constitutes the substance of a thing (physical or nonphysical); a physical substance; a material thing.” OED Online, available at

http://dictionary.oed.com/cgi/entry/00303279?query_type=word&queryword=materi

al&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=VoPl-c

VwRjA-12823&hilite=00303279. The plain, unambiguous nature of this language

compels this Court to find that matter of a biological nature, such as biological

pesticides, qualifies as a biological material and falls under the Clean Water Act if it is

“discharged into water.” 33 U.S.C. § 1362(6). 

The EPA points to Ninth Circuit case law that holds that “mussel shells and

mussel byproduct are not pollutants” under the Clean Water Act. Ass’n to Protect

Hammersley, Eld & Totten Inlets v. Taylor, 299 F.3d 1007, 1016 (9th Cir. 2002). The

Hammersley court found the Clean Water Act to be “ambiguous on whether ‘biological

materials’ means all biological matter regardless of quantum and nature.” Id. While that

case is distinguishable, we choose a more limited analysis.6

 We see our obligation not

as defining the outermost bounds of “biological materials,” but rather simply as deciding

whether biological pesticides fit into the ordinary meaning of “biological materials.” 

The term “biological materials” cannot be read to exclude biological pesticides

or their residuals. The EPA’s Final Rule treats biological pesticides no differently from

chemical pesticides, exempting both from NPDES permitting requirements in certain

circumstances. See 71 Fed. Reg. at 68,492. We find this interpretation to be contrary

to the plain meaning of the Clean Water Act. In 33 U.S.C. § 1362, Congress

purposefully included the term “biological materials,” rather than a more limited term

such as “biological wastes.” Congress could easily have drafted the list of pollutants in

the Clean Water Act to include “chemical wastes” and “biological wastes.” But, here,

the word “waste” does not accompany “biological materials.” Thus, if we are to give
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This analysis is not necessary for biological pesticides because, as discussed above, both

biological pesticides and their residuals are pollutants under the Clean Water Act. Because biological

pesticides are discharged from a “point source” they must be regulated under the Act.

meaning to the word “waste” in “chemical waste,” we must recognize Congress’s intent

to treat biological and chemical pesticides differently. 

This interpretation is consistent with the precedent of this Court and others. In

National Wildlife Federation v. Consumer Power Co., 862 F.2d 580 (6th Cir. 1988), we

determined that “[m]illions of pounds of live fish, dead fish and fish remains annually

discharged in Lake Michigan by [a] facility are pollutants within the meaning of the

[Clean Water Act], since they are “biological materials.” Likewise, the District Court

of Maine determined that “salmon feces and urine that exit the net pens and enter the

waters are pollutants as they constitute ‘biological materials’ or ‘agricultural wastes.’”

United States Pub. Interest Research Group v. Atl. Salmon of Maine, 215 F. Supp. 2d

239, 247 (D. Me. 2002) (citing Higbee v. Starr, 598 F. Supp. 323, 330-31 (D. Ark. 1984)

aff’d, 782 F.2d 1048 (8th Cir. 1985)). Biological pesticides similarly must be considered

“biological materials.” Biological pesticides consist of artificial concentrations of

viruses, bacteria, fungi, plant materials, and/or other biological materials. See Pesticides:

Glossary, U.S. EPA, available at http://www.epa.gov/pesticides/glossary. Congress

defined “pollution” as “the man-made or man-induced alteration of the chemical,

physical, biological, and radiological integrity of water.” 33 U.S.C. § 1362(19). Adding

biological pesticides to water undeniably alters its biological integrity. Therefore, we

find biological pesticides to be “biological materials” under the Clean Water Act.

2. Are Chemical Pesticide Residuals Added to the Water by “Point

Sources?”7

The EPA further defends its Final Rule by arguing that excess pesticide and

residue pesticide are not discharged from a “point source.” In other words, though

excess and residue pesticides have exactly the same chemical composition and are

discharged from the same point source at exactly the same time as the original pesticide,

and though excess and residue pesticides would not enter the Nation’s waterways but for
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the discharge of the original pesticide, the EPA concludes that excess and residue

pesticides are not discharged from a “point source” because at the moment of discharge

there is only pesticide. This is so, according to the EPA, because excess and residue

pesticides do not exist until after the discharge is complete, and therefore “should be

treated as a nonpoint source pollutant.” 71 Fed. Reg. at 65,847. 

The Clean Water Act defines “point source” as “any discernible, confined, and

discrete conveyance,” including a variety of mechanisms such as “container,” “rolling

stock,” or “vessel or other floating craft.” 33 U.S.C. § 1362(14). The EPA and the

courts agree that pesticides are applied by point sources. See 71 Fed. Reg. at 65,847;

League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1185 (9th Cir. 2002);

Headwaters, 243 F.3d at 528. The EPA argues that, at the time of discharge, the

pesticide is a nonpollutant, and the excess pesticide and pesticide residues are not

created until later, presumably after they are already in the water. Therefore, according

to the EPA, pesticides at the time of discharge do not require permits because they are

not yet excess pesticides or residue pesticides. But there is no requirement that the

discharged chemical, or other substance, immediately cause harm to be considered as

coming from a “point source.” Rather, the requirement is that the discharge come from

a “discernible, confined, and discrete conveyance,” 33 U.S.C. § 1362(14), which is the

case for pesticide applications. 

The EPA offers no direct support for its assertion that a pesticide must be

“excess” or “residue” at the time of discharge if it is to be considered as discharged from

a “point source.” This omission of authority is understandable, as none exists. The

Clean Water Act does not create such a requirement. Instead, it defines “discharge of

a pollutant” as “any addition of any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12). The EPA’s attempt at temporally tying the “addition”

(or “discharge”) of the pollutant to the “point source” does not follow the plain language

of the Clean Water Act. Injecting a temporal requirement to the “discharge of a

pollutant” is not only unsupported by the Act, but it is also contrary to the purpose of the

permitting program, which is “to prevent harmful discharges into the Nation’s waters.”
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Defenders of Wildlife, 127 S. Ct. at 2525. If the EPA’s interpretation were allowed to

stand, discharges that are innocuous at the time they are made but extremely harmful at

a later point would not be subject to the permitting program. Further, the EPA’s

interpretation ignores the directive given to it by Congress in the Clean Water Act,

which is to protect water quality. As the EPA itself recognizes, “Congress generally

intended that pollutants be controlled at the source whenever possible.” 73 Fed. Reg.

at 33,702 (citing S. Rep. No. 92-414, p. 77 (1972)). Here, it is certainly possible for

pesticide residue to be controlled at its source because the discharge of the pesticide

introduces such residue into the water. 

The EPA’s newly asserted temporal element also runs contrary to its own recent

interpretation of the Clean Water Act’s term “addition.” See 73 Fed Reg. 33,697 (June

13, 2008). The EPA determined that transfers of water from one body of water to

another do not constitute the “addition” of a pollutant to the new body of water, and in

doing so clarified its understanding of the term “addition.” 73 Fed Reg. 33,697. The

EPA explained: 

Given the broad definition of “pollutant,” transferred (and receiving)

water will always contain intrinsic pollutants, but the pollutants in

transferred water are already in “the waters of the United States” before,

during, and after the water transfer. Thus, there is no “addition”; nothing

is being added “to” “the waters of the United States” by virtue of the

water transfer, because the pollutant at issue is already part of “the waters

of the United States” to begin with.

. . . .

As noted above, EPA’s longstanding position is that an NPDES pollutant

is “added” when it is introduced into a water from the “outside world” by

a point source. Gorsuch, 693 F.2d at 174-75.

Id. at 33,701. Given the EPA’s understanding of “addition” of a pollutant as stated

above, it is clear that under the meaning of the Clean Water Act, pesticide residue or

excess pesticide—even if treated as distinct from pesticide—is a pollutant discharged

from a point source because the pollutant is “introduced into a water from the ‘outside

world’ by” the pesticide applicator from a “point source.” See id. This interpretation
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coincides with the method of determining whether a discharge is from a “point source”

that the Supreme Court recently cited with approval: “For an addition of pollutants to

be from a point source, the relevant inquiry is whether—but for the point source—the

pollutants would have been added to the receiving body of water.” Miccosukee, 541

U.S. at 103 (quoting Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 280

F.3d 1364, 1368 (11th Cir. 2002)). It is clear that but for the application of the pesticide,

the pesticide residue and excess pesticide would not be added to the water; therefore, the

pesticide residue and excess pesticide are from a “point source.”

3. May the Final Rule Stand?

For all of these reasons, we conclude that the statutory text of the Clean Water

Act forecloses the EPA’s Final Rule. The EPA properly argues that excess chemical

pesticides and chemical pesticide residues, rather than all chemical pesticides, are

pollutants. However, the Final Rule does not account for the differences between

chemical and biological pesticides under the language of the Clean Water Act. Further,

because the Act provides that residual and excess chemical pesticides are added to the

water by a “point source” there is no room for the EPA’s argument that residual and

excess pesticides do not require an NPDES permit. The “point source” from which the

residue originates is easily discernable and necessarily must “be controlled at the

source.” See 73 Fed. Reg. at 33,702. Given all of the above in combination with the

EPA’s interpretation that “[p]oint sources need only convey pollutants into navigable

waters to be subject to the Act,” id. at 33,703, dischargers of pesticide pollutants are

subject to the NDPES permitting program in the Clean Water Act. As such, the EPA’s

Final Rule cannot stand. Because the Clean Water Act’s text bars the Final Rule we

make no determination regarding the validity of the issuance of the Final Rule under the

APA, nor do we analyze the relationship between the Clean Water Act and the FIFRA.
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CONCLUSION

For the foregoing reasons, Environmental Petitioners’ petitions are GRANTED

in part and DENIED in part, and Industry Petitioners’ petitions are DENIED in whole.

We VACATE the Final Rule.