Source:  NATIONAL COTTON COUNCIL, 6/16/11

On March 31, the House of Representatives passed H.R. 872 by a margin of 292-134 under an expedited process known as the suspension of the rules -- in part due to the concerted efforts of NCC members.

If passed, H.R. 872 would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) and eliminate the court mandated requirement to obtain CWA permits to apply pesticides over, to, or near waters of the United States.

The bill has been sent to the Senate where, for unknown reasons, the parliamentarian referred H.R. 872 to the Senate Agriculture, Nutrition, and Forestry Committee. Thus, the bill avoided Sen. Boxer’s Environment and Public Works Committee where it would have died. The NCC, in collaboration with the Pesticide Policy Coalition, has been briefing Democratic Senate staff on the bill.

On April 4, 2011, Sen. Roberts (R-KS) and a number of Republican colleagues introduced legislation (S. 718) that also would eliminate the permitting requirement but only amends FIFRA. The Roberts bill is broader in scope and would preempt all sorts of federal, state and local permit requirements related to pesticide use. Senate Agriculture, Nutrition, and Forestry Committee staff is examining both bills.

The Senate Agriculture Committee recently announced plans to mark up H.R. 872 on either Tuesday, June 21, or Wednesday, June 22.

(Background on H.R. 872)
H.R. 872 is bipartisan legislation that was introduced in the House by Water Resources and Environment Subcommittee Chairman Gibbs (R-OH), Transportation Committee Member and Chairman of the House Agriculture Committee’s Subcommittee on Nutrition and Horticulture Schmidt (R-OH), and other House Members.

The bill reverses a 2009 decision of the Sixth Circuit Court of Appeals in National Cotton Council v. EPA. This court decision vacated a 2006 EPA rule and long-standing interpretation that the application of a pesticide for its intended purpose and in compliance with the requirements of the FIFRA does not also require a separate permit under the CWA.

The court-ordered deadline for EPA to promulgate the new permitting process for pesticides was April 9, 2011, but during the week of March 28, the court ordered a six-month extension until Oct. 31 after EPA stated it could not comply with the permitting requirements by the April 9 deadline. (The extension will afford more time to work on getting legislation passed in the Senate.).

On April 1, EPA released its draft final general permit for pesticide applications. The agency said in a statement that it was releasing its permit ahead of final publication in the Federal Register in order for states and permittees to have as much time as possible to understand the permit's requirements before its implementation on Oct. 31.

To view the permit, go to cfpub.epa.gov/npdes/home.cfm?program_id=410. This latest version has been moderated somewhat from the June 4 proposal. The earlier proposal would have required permits for pesticide users applying pesticides for mosquito control on more than 640 acres a year or applying aquatic pesticides to more than 20 linear miles of a water's edge or 20 acres of open water. The final version raises those thresholds to 6,400 acres for mosquito control and 80 acres of open water, yet the 20 linear mile threshold remains unchanged.

Under this proposed draft, approximately 35,000 pesticide applicators will need permits to cover about 500,000 applications per year. EPA estimates the permit will cost states, local entities and pesticide applicators $50 million and require one million hours to implement per year. Under the CWA, unlawful discharges are subject to $37,500 per day in fines.

EPA has estimated that approximately 365,000 pesticide users, including state agencies, cities, counties, mosquito control districts, water districts, pesticide applicators, farmers, ranchers, forest managers, and scientists that perform 5.6 million pesticide applications annually will be affected by the court’s ruling. This mandate would virtually double the number of entities currently subject to NPDES permitting under the CWA.

H.R. 872 exempts, from the NPDES permitting process, a discharge to waters involving the application of a pesticide authorized for sale, distribution, or use under FIFRA, where the pesticide is used for its intended purpose and the use is in compliance with pesticide label requirements. The legislation would amend FIFRA and the CWA to clarify Congressional intent and eliminate the duplicative NPDES requirement.