(Beyond Pesticides, March 11, 2013) Recent sequester cuts and new proposed Congressional legislation could dramatically affect the safety of American waterways. According to a February 25 email, the White House Council on Environmental Quality estimates that the recent sequester could reduce federal funding for state environmental programs by $154 million. These cuts, which kicked in March 1, impact all states, with California losing the most funding totaling $12.4 million. The email also contains estimates that grants to federal fish and wildlife programs would be cut by $46.2 million. As these cuts begin to take effect, U.S. Representative Bob Gibbs (R-OH) introduced the Reducing Regulatory Burdens Act of 2013 (H.R. 935) on March 4. This bill, which is similar to a piece of legislation that was passed in the house in 2011, will eliminate the requirement for pesticide applicators to file Clean Water Act (CWA) permits for applications where pesticides could be discharged into water.
The recent sequester has led to losses in “environmental funding to ensure clean water and air quality, as well as prevent pollution from pesticides and hazardous waste,” according to the White House Council on Environmental Quality. The cuts that could most affect states’ ability to enforce pesticide regulations are the cuts to states’ clean water revolving funds. State clean water revolving funds were created in 1987 under section 319 of CWA. State revolving funds allow states to provide financial assistance to local municipalities to undertake water quality projects such as regulating agricultural runoff and other non-point pollution sources. Cuts to these programs may be higher than the estimated $154 million. The White House Office of Management and Budget (OMB) said in September of 2012 that state revolving funds could be cut by approximately $196 million in fiscal 2013 under sequestration.
These sequester cuts will come into effect at the same time Rep. Gibbs introduces H.R. 935. This legislation had passed the U.S. House of Representatives on March 31, 2011 as H.R. 872 but the full Senate failed to consider it during the last Congress, although it was adopted by the Senate Agriculture Committee. This bill, which has bipartisan support, would amend CWA by eliminating the requirement of a National Pollutant Discharge System (NPDES) permit for the use of pesticides already approved for use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)FIFRA.
In 2009, the 6th Circuit Court of Appeals ruled in the case of the National Cotton Council et al. v. EPA that pesticides discharged into water are pollutants and use pertmits are required under the CWA’s NPDES. This ruling overturned Bush administration policy that created exemptions from regulation for pesticides under the CWA and applied the less protective standards of the FIFRA. CWA uses a health-based standard, known as maximum contamination levels (MCLs), to protect waterways and requires permits when chemicals are directly deposited into rivers, lakes and streams, whereas FIFRA uses a highly generalized risk assessment that does not consider the availability of safer alternatives.
The proponents of this legislation claim that requiring a CWA permit creates a double layer of red tape that is costly to the agriculture industry and consumers. However, FIFRA and CWA are complementary laws and the CWA permit process only affects a relatively small number of pesticide applications. 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. 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-based standards under FIFRA, on the other hand, are weaker. 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 lawsuit, EPA has adopted a general permit for agricultural use of pesticides, however, under the law states can adjust requirements for permits based on senstive areas or use patterns that they believe should be subject to health and safety reviews.
Companion legislation, A bill to amend the Federal Insecticide, Fungicide, and Rodenticide Act to improve the use of certain registered pesticides (S. 175), was introduced in the Senate this January by Senators Pat Roberts (R-KS) and Mike Johanns (R-NE). The bill has been referred to the Senate Agriculture, Nutrition and Forestry Committee.
A good example of problems that may arise when states cannot enforce CWA permits is captured in a recent report on water testing for a problem chemical not tracked currently in the state of Hawaii. The report found that atrazine had run off into rivers, streams and groundwater sources on the islands. The Hawaii Department of Agriculture almost exclusively relies on label compliance, according to Thomas Matsuda, manager of its pesticide program, which is similar to the sole reliance on pesticide registration under H.R 935.
All unattributed Positions and opinions in this piece are those of Beyond Pesticides