(Beyond Pesticides, November 17, 2011) Updated 1:00 p.m. – Thanks to everyone for taking action and putting pressure on your Senators. Senator Roberts filed an amendment yesterday to the Energy and Water Appropriations Bill opposing provisions to gut pesticide protections from the Clean Water Act. It is the same language we opposed this summer. He has tried to slip it into other bills as well. It’s important that we continue to put pressure on legislators to oppose the amendment offered by Senator Roberts and to support stronger pesticide restrictions around water.
PLEASE CALL YOUR SENATORS(Senate directory) with the following message:
“We urge you to oppose Senator Roberts’ amendment to the Energy and Water appropriations bill. Previously introduced as S. 718, the amendment would prevent the EPA from protecting our waterways from pesticide discharges. This bill will strip EPA’s ability to protect our waters from pollution by amending the Clean Water Act (CWA) and federal pesticide law to exempt applications of pesticides to waterways from CWA standards. There is already widespread contamination of our waterways by toxic pesticides, and we cannot rely solely on our weak pesticide law to protect those waters. This amendment is bad for public health and bad for our rivers, lakes and streams.
“EPA has already drafted its permit for these pesticides applications, which offers modest protections. This amendment is a last ditch effort to avoid any protections of our waterways from dangerous pesticides. We urge you to oppose this amendment and any Senate version of S.718 or related HR 872.”
Background on HR 872 / S 718
The so-called “Reducing Regulatory Burdens Act of 2011,” would ensure that CWA permits are not required for the application of pesticides. The bill states, “A permit shall not be required by the Administrator or a State under [the Clean Water Act] for a discharge from a point source into navigable waters of a pesticide authorized for sale, distribution, or use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), or the residue of such a pesticide, resulting from the application of such pesticide.”
FIFRA and CWA are complementary laws. The two statutes have fundamentally different standards and methods in determining whether a pesticide will have unreasonable adverse effects on the environment and/or human health. The CWA statute is more stringent than FIFRA. CWA has a “zero discharge” standard, meaning any amount of discharge, no matter how small, without a permit, constitutes a violation of the CWA. Risk assessment, on the other hand, used under FIFRA, is weaker than a “zero harm” standard. Risk/benefit allows a certain amount of pollution (i.e. risk) in exchange for controversial calculations of benefit and use a threshold of harm that can vary upon EPA discretion. Since the CWA statute is more stringent in its oversight of U.S. waterways, FIFRA should not be allowed to override the CWA.
In March 2011, HR 872 passed the U.S. House of Representatives by a vote of 292-130. The bill, introduced by Rep. Bob Gibbs (R-OH), seeks to amended FIFRA and CWA to eliminate provisions requiring pesticide applicators to obtain a permit to allow pesticides or their residues to enter waterways. It would reverse a 2009 Sixth Circuit court decision which ruled that, under FIFRA and CWA, EPA must require such permits.
The January 2009 Sixth Circuit Court of Appeals ruling in National Cotton Council v. U.S. Environmental Protection Agency, requires pesticide applications to be permitted under the Clean Water Act. The National Pollutant Discharge Elimination System (NPDES) permit would be in addition to the less protective label requirements under FIFRA. EPA drafted proposed rules in 2010 outlining the applicability of the permits for pesticide usage. Since then, industry has lobbied hard to get Congress to prevent this measure from going into effect this year.
Senator Roberts and the other cosponsors of the bill claim that NPDES permits are burdensome on farmers, even though the permits are only required for a narrow range of uses, and does not affect terrestrial agricultural spraying. NPDES permits will monitor the discharge of pesticides into waterways by local and state authorities, including evaluation of the potential risks discharges might present to aquatic and semi-aquatic species and help safeguard against contaminated fish and drinking water.
Meanwhile, stating that “the provisions of this permit are designed to improve protection of public health and our nation’s water quality,” EPA has posted a pre-publication version of its draft final pesticide general permit. The pre-publication version of the draft final pesticide general permit has concluded interagency review by the Office of Management and Budget. Since EPA is currently engaged in consultation with federal resource agencies under the Endangered Species Act (ESA), this version of the draft final permit does not contain any additional or revised conditions that may result from ongoing ESA consultation.
According to the agency, this draft final permit is not considered a “final agency action.” Even though legislation passed the U.S. House of Representatives that would remove the need for the permit, EPA states that it is still providing a preview of the draft final permit to assist states in developing their own permits and for the regulated community to become familiar with the permit’s requirements before it becomes effective.
The draft has not significantly changed from the proposed permit in 2010. The draft version of the final permit covers operators who apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. The permit would not cover 1) non-target spray drift, or 2) discharges of pesticides to waterbodies that are impaired for that pesticide. Agricultural runoff and irrigation return flows are exempt from permitting under the Clean Water Act and, thus, do not require CWA permits. The permit also does not cover, nor is permit coverage required, for pesticide applications that do not result in a point source discharge to waters of the U.S. such as terrestrial applications for the purpose of controlling pests on agricultural crops, forest floors, or range lands.