Fairhurst v. Hagener ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM FAIRHURST, 
Plaintiff-Appellant,
No. 04-35366
v.
JEFF HAGENER, Director, Montana  D.C. No.
CV-03-00067-SEH
Department of Fish, Wildlife &
OPINION
Parks,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
August 3, 2005—Seattle, Washington
Filed September 8, 2005
Before: David R. Thompson, Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Per Curiam Opinion
12673
12676 FAIRHURST v. HAGENER
COUNSEL
Alan L. Joscelyn, Gough, Shanahan, Johnson & Waterman,
Helena, Montana, for the appellant.
Rebecca J. Dockter, Montana Department of Fish, Wildlife &
Parks, Helena, Montana, for the appellee.
OPINION
PER CURIAM:
William Fairhurst appeals the district court’s grant of sum-
mary judgment in favor of Jeff Hagener, director of the Mon-
FAIRHURST v. HAGENER 12677
tana Department of Fish, Wildlife and Parks (“Department”).
We hold that a pesticide applied to a river pursuant to an
intentional scheme aimed at eliminating pestilent fish species
is not a “pollutant” for the purposes of the Clean Water Act
(“CWA”), 33 U.S.C. §§ 1251-1387, and thus not subject to
the Act’s permit requirements. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm the district court.
I. BACKGROUND
Hagener initiated a ten year program known as the Cherry
Creek Native Fish Introduction Project (“Cherry Creek Proj-
ect”), in which the Department sought to re-introduce a threat-
ened fish species called the westslope cutthroat trout. Because
this species was threatened in part by competition with other
non-native trout species, Hagener’s program included a plan
to remove the non-native fish. The Department would apply
the pesticide antimycin into the water for short periods of time
over the course of several years and afterwards reintroduce
the westslope cutthroat. As the Department began executing
the project, it performed at least one application of antimycin
to Cherry Creek.
Fairhurst sued Hagener under the citizen suit provision of
the CWA. Fairhurst claimed that in order to legally disperse
pesticide into United States waters, Hagener was required by
the CWA to obtain a National Pollutant Discharge Elimina-
tion System (“NPDES”) permit, which Hagener had not
secured before applying the antimycin. The parties stipulated
that the Department applied the antimycin in accordance with
the requirements of the label approved by the Environmental
Protection Agency (“EPA”) pursuant to the Federal Insecti-
cide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C.
§§ 136-136(y). The parties further stipulated that the Cherry
Creek Project “went according to the plan which included
application of Antimycin directly to the waters of the U.S.
. . . Consequently, the species killed were rainbow and Yel-
lowstone cutthroat trout.” Fairhurst sued for an injunction
12678 FAIRHURST v. HAGENER
proscribing all future unpermitted applications of the antimy-
cin.
Fairhurst and Hagener each moved for summary judgment.
The district court granted Hagener’s motion and denied
Fairhurst’s on March 24, 2004. Fairhurst timely appeals here.
II. STATUTORY FRAMEWORK
The Clean Water Act requires that a government agency
obtain a NPDES permit before discharging any pollutant from
any point source into navigable waters of the United States.
33 U.S.C. § 1323(a). The NPDES permit system “allows a
polluter who obtains a permit to discharge a specified amount
of the pollutant.” Headwaters, Inc. v. Talent Irrigation Dist.,
243 F.3d 526, 530 (9th Cir. 2001) (citing 33 U.S.C. § 1342).
“Absent the required permit, such discharge is unlawful.”
League of Wilderness Defenders v. Forsgren, 309 F.3d 1181,
1183 (9th Cir. 2002). The NPDES program allows the EPA
to “issue permits on a case-by-case basis, taking into account
local environmental conditions.” Headwaters, 243 F.3d at 530
(citing Am. Mining Cong. v. United States Envtl. Prot.
Agency, 965 F.2d 759, 762 n.3 (9th Cir. 1992)). Further, Con-
gress has given “the Governor of each State desiring to
administer its own permit program” permission to do so, pro-
vided that the EPA Administrator approves the Governor’s
program. 33 U.S.C. § 1342(b). When the state permit program
is in force, the federal permit program is suspended. See 33
U.S.C. § 1342(c).
[1] The CWA defines the term “discharge of a pollutant”
as “any addition of any pollutant to navigable waters from any
point source other than a vessel or other floating craft.” 33
U.S.C. § 1362(12). “Pollutant,” in turn, means
dredged spoil, solid waste, incinerator residue, sew-
age, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials,
FAIRHURST v. HAGENER 12679
heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural
waste discharged into water.
33 U.S.C. § 1362(6).
III. DISCUSSION
The parties have stipulated that “Cherry Lake and Cherry
Creek and its tributaries are all navigable waters or waters of
the United States for purposes [of] the . . . Clean Water Act.”
Moreover, the parties do not dispute that the discharge of anti-
mycin was an “addition” from a “point source.” Nor do they
dispute that Hagener did not seek or obtain a NPDES permit
from the Federal or State NPDES program. The crux of the
parties’ disagreement is whether the antimycin as applied to
Cherry Creek should be characterized as “chemical waste,”
and thus whether it falls under the CWA’s definition of “pol-
lutant” in 33 U.S.C. § 1362(6), rendering its unpermitted
application illegal under the Act. Hagener also argues that if
the antimycin is a “pollutant,” its use in accordance with its
FIFRA label eliminates the requirement that he also obtain a
NPDES permit.
A. “Chemical Waste”
We consider whether a pesticide applied directly and inten-
tionally to United States waters for the purpose of eliminating
pests is a “chemical waste” for the purposes of 33 U.S.C.
§ 1362(6), when such application is carried out in accordance
with an EPA-approved FIFRA label, and when the pesticide
performs as intended. We review issues of statutory interpre-
tation de novo. Res. Invs., Inc. v. U.S. Army Corps of Eng’rs,
151 F.3d 1162, 1165 (9th Cir. 1998).
In Headwaters, 243 F.3d at 526, we were presented with a
similar question. In that case we considered whether the her-
bicide Magnacide H, applied to irrigation canals “for a benefi-
12680 FAIRHURST v. HAGENER
cial purpose, the clearing of weeds,” was a “chemical waste”
for the purposes of 33 U.S.C. § 1362(6). Id. at 532. We noted
that acrolein, the active ingredient in Magnacide H, is “a toxic
chemical that is lethal to fish . . . which takes at least several
days to break down into a nontoxic state.” Id. We also noted
in passing that “it would seem absurd to conclude that a toxic
chemical directly poured into water is not a pollutant,” id. at
532-33, although we declined to decide the question whether
the intentionally applied and properly functioning portions of
acrolein were “chemical wastes.” Answering this question
was unnecessary because “the residual acrolein left in the
water after its application qualifies as a chemical waste prod-
uct and thus as a ‘pollutant’ under the CWA.” Id. at 533(emphasis added). We therefore found that the CWA required
an entity desiring to dispense a chemical that leaves residue
into the waters to obtain a NPDES permit for discharge, even
when the chemical bears a FIFRA label.
[2] Unlike Headwaters, this case squarely presents the
issue whether pesticide intentionally applied directly into the
water in accordance with all applicable requirements of
FIFRA should be characterized as “chemical waste.” Here the
parties do not assert that there was residual chemical left in
the water after the antimycin had performed its intended pur-
pose. On the contrary, as the district court noted, “it is unchal-
lenged that following application, the antimycin dissipated
rapidly” and left no residue. Fairhurst again conceded as
much at oral argument.
[3] Because the factual scenario presented here differs from
Headwaters’, and there is no other controlling circuit law on
the meaning of the term “chemical waste,” we next look to the
plain meaning of the statutory term. In Northern Plains
Resource Council v. Fidelity Exploration & Development Co.,
325 F.3d 1155 (9th Cir. 2003), we defined “waste” as “any
useless or worthless byproduct of a process or the like; refuse
or excess material.” Id. at 1161 (citing Am. Heritage Dictio-
nary 672 (1979)). Merriam-Webster’s definition is in the
FAIRHURST v. HAGENER 12681
same vein: “damaged, defective, or superfluous material pro-
duced by a manufacturing process.” See Merriam-Webster
online, www.merriam-webster.com. Because the parties stipu-
lated that the antimycin was applied and functioned as
intended, it was not “damaged” or “defective.” Moreover, the
parties do not claim that any portion of the pesticide applied
to the water was “superfluous material” or “refuse or excess
material.” A plain meaning analysis of the phrase “chemical
waste” thus suggests that a pesticide that is intentionally
applied to the water and leaves no excess portions after per-
forming its intended purpose is not a “chemical waste.”
[4] This analysis accords with the EPA’s construction of
the CWA’s definition of “chemical waste” in the context of
intentionally applied pesticides. In July, 2003 the EPA issued
a memorandum entitled “Interim Statement and Guidance on
Application of Pesticides to Waters of the United States in
Compliance with FIFRA” (“Interim Statement”) to address
this issue. Available at http://www.epa.gov/npdes/pubs/
pesticide_interim_guidance.pdf.1 The Interim Statement
asserts that the “EPA has evaluated whether pesticides applied
consistent with FIFRA fall within any of the terms in section
506(2) [defining the term ‘pollutant’], in particular whether
they are ‘chemical wastes’ or ‘biological materials.’ EPA has
concluded that they do not fall within either term.” Id.[5] The EPA’s Interim Statement is entitled to some defer-
ence. In Resource Investments, Inc., 151 F.3d at 1165, this
court held that “an agency’s construction of a statute it is
charged with enforcing is normally entitled to deference if it
1
In February 2005, the EPA issued an “Interpretive Statement and
Notice of Proposed Rulemaking on the Application of Pesticides to Waters
of the United States in Compliance with FIFRA” (“Interpretive State-
ment”). 70 Fed. 3d Reg. 5093 (Feb. 1, 2005). While the Interpretive State-
ment has now superceded the Interim Statement, the Interpretive
Statement mirrors the language and analysis of the Interim Statement,
which was in effect at the time the dispute arose and the district court con-
sidered the case.
12682 FAIRHURST v. HAGENER
is reasonable and not in conflict with the expressed intent of
Congress.” See also League of Wilderness Defenders, 309
F.3d at 1189 (quoting Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944), for the proposition that the discretion the courts
should afford to an agency interpretation of a statute “will
depend on the thoroughness evident in [the agency’s] consid-
eration, the validity of its reasoning, its consistency with ear-
lier and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control”).
[6] The Interim Statement arrives at its conclusion by first
analyzing the plain meaning of the term “waste,” and finding
that “[p]esticides applied consistent with FIFRA are not such
wastes; on the contrary, they are EPA-evaluated products
designed, purchased and applied to perform their intended
purpose of controlling target organisms in the environment.”
The Statement then asserts that its interpretation comports
with the intent of Congress by pointing out that the
interpretation—which entails that pesticides are “pollutants”
in some circumstances and not in others—tracks the under-
standing of the primary sponsor of the CWA, who stated that
“[s]ometimes a particular kind of matter is a pollutant in one
circumstance, and not in another.” Id. (quoting Senate Debate
on S. 2770, 117 Cong. Rec. 38,838 (daily ed. Nov. 2, 1971)
(Statement of Senator Muskie)).2 Finally, the Statement notes
that pesticides are not “waste,” for CWA purposes, only when
they are applied in a manner consistent with an EPA-
approved FIFRA label. Id.[7] We find the EPA interpretation as articulated in the
Interim Statement “reasonable and not in conflict with the
expressed intent of Congress.” Res. Invs, Inc., 151 F.3d at
1165. The interpretation also accords with the plain meaning
of the term “chemical waste.” Moreover, the EPA interpreta-
2
Senator Muskie also stated that “defining or applying these definitions
to particular kinds of pollutants . . . is an administrative decision to be
made by the Administrator.” Id.FAIRHURST v. HAGENER 12683
tion does not conflict with Headwaters, as in that case the
“chemical waste” for which a NPDES permit was required
was not a pesticide serving a beneficial purpose and intention-
ally applied to the water, but was a chemical that remained in
the water after the Magnacide H performed its intended, bene-
ficial function. Therefore, we conclude that pesticides that are
applied to water for a beneficial purpose and in compliance
with FIFRA, and that produce no residue or unintended
effects, are not “chemical wastes,” and thus are not “pollu-
tants” regulated by the CWA. Because intentionally applied
and properly performing pesticides are not “pollutants,” a
potential discharger is not required to secure a NPDES permit
for such pesticides before discharge.
The parties stipulated that the antimycin was applied inten-
tionally and in a manner that comported with the EPA-
approved FIFRA label. Moreover, the parties do not claim
that the antimycin had any unintended effects, or that any res-
idue from the antimycin remained after the pesticide per-
formed its intended function. Thus, we hold that the CWA did
not require Hagener to secure a NPDES permit.
B. FIFRA
Because we have held that the antimycin applied to the
Cherry Creek drainage during the Cherry Creek Project is not
a chemical waste, and thus not a pollutant for the purposes of
the CWA, we do not address Hagener’s argument that he was
not required to obtain a permit because he was in compliance
with the requirements of FIFRA.3 We do note, however, that
this argument is explicitly foreclosed by Headwaters. See
Headwaters, 243 F.3d at 531-32.
3
Nor do we address Hagener’s contention that his pesticide dispersal is
exempted from the NPDES permit requirement because the department
“applied for and received a short-term exemption from water quality stan-
dards from the Montana Department of Environmental Quality (DEQ).”
12684 FAIRHURST v. HAGENER
The district court expended considerable effort attempting
to “give effect to each” of the two statutes in question here,
the CWA and FIFRA, citing Headwaters’ statement that
“[t]he CWA and FIFRA have different, although complemen-
tary, purposes.” Headwaters, 243 F.3d at 531. However,
Headwaters explicitly held that “registration and labeling . . .
under FIFRA does not preclude the need for a permit under
the CWA.” Id. at 532. On the contrary, Headwaters noted that
“[e]ven [a] cursory review of the statutes reveals that a FIFRA
label and a NPDES permit serve different purposes”:
FIFRA establishes a nationally uniform labeling sys-
tem to regulate pesticide use, but does not establish
a system for granting permits for individual applica-
tions of herbicides. The CWA establishes national
effluent standards to regulate the discharge of all
pollutants into the waters of the United States, but
also establishes a permit program that allows, under
certain circumstances, individual discharges.
FIFRA’s labels are the same nationwide, and so the
statute does not and cannot consider local environ-
mental conditions. By contrast, the NPDES program
under the CWA does just that. . . . The NPDES per-
mit requirement under the CWA thus provides the
local monitoring that FIFRA does not.
Id. at 531.
As Headwaters explained, FIFRA is a labeling statute that
informs the user of a pesticide how to safely use it. FIFRA
regulates solely through its registration requirement, and its
prohibition against the sale, distribution, and professional use
of unregistered pesticides. 7 U.S.C. §§ 136a(a), 136j(a)(1).
The statutory scheme puts the onus on manufacturers and dis-
tributors to draft and secure approval of the FIFRA label
before placing their products on the market. There is no statu-
tory enforcement mechanism governing usage of FIFRA
products according to the label. The CWA, by contrast, regu-
FAIRHURST v. HAGENER 12685
lates the amount and type of pollutants dispersed into the
waters of the United States. The NPDES requirement allows
the EPA to consider “local environmental conditions,” and
issue permits for “individual discharges.” Headwaters, 243
F.3d at 531. Headwaters accordingly held that a person who
disperses a “pollutant” as defined by 33 U.S.C. § 1362(6)
must secure a NPDES permit, regardless of whether or not the
pollutant is dispersed according to instructions on the FIFRA
label. Headwaters is not disturbed by our holding today; here
we address dispersal of a pesticide that is not a chemical
waste and thus not a pollutant.
IV. CONCLUSION
[8] A chemical pesticide applied intentionally, in accor-
dance with a FIFRA label, and with no residue or unintended
effect is not “waste” and thus not a “pollutant” for the pur-
poses of the Clean Water Act. Because Hagener’s application
of antimycin to Cherry Creek was intentional, FIFRA-
compliant, and without residue or unintended effect, the dis-
charged chemical was not a “pollutant” and Hagener was not
required to obtain a NPDES permit.
AFFIRMED.