A U.S. 6th Circuit Court ruling that would require a permitting system for all applications of pesticides over or near bodies of water is beginning to attract congressional attempts to override the ruling and restore FIFRA as the governing document for those applications.
On Thursday, Sept. 30, House Agriculture Committee Chairman Collin Peterson introduced legislation that would amend the Federal Insecticide, Fungicide and Rodenticide Act and the Clean Water Act to prohibit additional permits for pesticide applications when they are applied consistent with FIFRA.
“This legislation provides farmers and ranchers with the safe harbor they deserve in the application of pesticides,” said Petterson, a Democrat from Minnesota. “The bill relieves producers from a potentially costly regulatory burden that does little if anything to protect the environment.”
A total of 12 House members joined Peterson as co-sponsors of the bill, H.R. 6273.
In the decades since Congress enacted the CWA, the Environmental Protection Agency has never issued a National Pollutant Discharge Elimination System (NPDES) permit for the application of a pesticide, the House Ag Committee said in a press release.
Instead, EPA has regulated these types of applications through FIFRA, enacted by Congress to control all aspects of pesticide registration, sales and use. The FIFRA registration process includes stringent requirements for a wide range of environmental, health and safety studies to establish the circumstances under which pesticides can be legally used in the United States.
EPA rule overturned
The more recent history has been that in January 2009, the 6th Circuit Court of Appeals overturned a 2006 EPA rule which specifically exempted permitting of certain pesticide applications from the CWA.
In National Cotton Council of America, et al., v. United States Environmental Protection Agency the court ruled EPA did not have the authority under the CWA to exempt application of pesticides. The Court’s decision marks a pre-emption of FIFRA by the CWA for the first time in the history of either statute.
Chairman Peterson’s bill would make clear that producers who are in compliance with the requirements of FIFRA are not subject to Clean Water Act permits, the committee press release said.
“The 6th Circuit decision overturned decades of policy and practice with regard to the sufficiency of FIFRA regulation,” Peterson said. “This legislation will make clear that Congress never intended for farmers and ranchers to meet additional permit requirements for pesticide applications under FIFRA.”
Crop protection industry officials say the 6th Circuit ruling could lead to performance, recordkeeping and reporting requirements for an estimated 1.5 million pesticide applications per year. EPA is under a court-ordered deadline of April 2011 to complete the implementation of a permitting system.
“This one decision overnight will nearly double the population of entities requiring permits under CWA and affects state agencies, local municipalities, recreation, utility rights-of-way, railroads, roads and highways, mosquito control districts, water districts, canals and other water conveyances, commercial applicators, farm, ranches, forestry, scientists, and many, many others,” said Jay Vroom, president of CropLife America. (See EPA's NPDES permit plans too 'optimistic'.)
“This is an enormous burden — and we see no related benefit to protection of humans or the environment.”
Vroom told a Senate Agriculture Committee hearing that many of the businesses impacted by the permit are small businesses. “The permit will threaten their economic survival, either due to the cost of obtaining a permit or due to their vulnerability to citizen law suits under CWA,” he said.
“New requirements for monitoring and surveillance, planning, recordkeeping, reporting and other tasks will create significant delays, costs, reporting burdens and legal risks from citizen suits for hundreds of thousands of newly-minted permit holders without enhancing the environmental protections already provided by FIFRA compliance.”