(Beyond Pesticides, March 11, 2011) The U.S. House of Representatives Committee on Agriculture unanimously approved a bill, Reducing Regulatory Burdens Act of 2011 (H.R. 872), on Wednesday, March 9 which would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) to eliminate provisions requiring pesticide applicators to obtain a permit to allow pesticides or their residues to enter waterways. The bill would effectively reverse a 2009 Sixth Circuit court decision which ruled that, under FIFRA and the CWA, the U.S. Environmental Protection Agency (EPA) must require such permits. A similar bill was introduced in the U.S. Senate last year.
The 2009 court ruling came in the case National Cotton Council v. EPA. Prior to this case, EPA had deemed it unnecessary to require permits for pesticide applications near waterways. These previous regulations meant that, in instances where pesticides were applied directly to water to control pests such as mosquito larvae or aquatic weeds, or when pesticides were applied to control pests over or near water, applications were held to the much less stringent FIFRA standards. FIFRA, unlike the CWA, does not fully regulate or monitor water quality and the protection of aquatic ecosystems in the local context. When a pesticide is registered under FIFRA, the dangers of heightened toxicity due to combinations of chemicals and chemical drift are not fully considered. EPA, in implementing FIFRA, uses controversial and, many studies say, inadequate exposure and essentiality assumptions in its risk assessment and does not take least-toxic alternatives into account. CWA, in contrast, uses a health-based standard, setting maximum contamination levels to protect waterways and requiring permits when chemicals are directly deposited into rivers, lakes and streams. In deciding the case, the court ruled that pesticides, when entering waterways, constitute pollutants, and as such, are subject to the permitting requirements of the CWA.
The permits are required, the court said, as part of the National Pollutant Discharge Elimination System (NPDES), an element of the CWA. The purpose of the NPDES permits is, as the name suggests, to reduce and eventually eliminate pollutants in the natural environment through requiring polluters to obtain permits. This allows for oversight of the proposed discharge, including evaluation of the potential risks it might present to aquatic and semi-aquatic species. Because the discharges are weighed against standards that don’t protect all species, are implemented with limited monitoring, and don’t consider need, even approved permits often present the potential for damage to ecosystems in affected areas. However, NPDES permits do allow for local citizen input through allowing the public to comment on the proposed pesticide application in the context of the CWA goal of “restoration and maintenance of chemical, physical and biological integrity of Nation’s waters,” and thus provide the opportunity for increased oversight and accountability in a goal-oriented framework.
The current bill would eliminate the elements in the NPDES program which require these permits, and thus allow for the associated regulatory review, through removing the associated provisions in FIFRA and the CWA. The bill’s sponsors call the permitting process “duplicative” and say that it is economically costly to pesticide applicators. However, the removal of this permitting process could result in serious contamination of rivers, lakes, and streams, causing irreversible ecological damage and requiring great sums of money to be spent in clean-up efforts.
Steven Bradbury, Director of EPA’s Office of Pesticide Programs, testified at a February 16th hearing on H.R. 872 that the agency essentially agrees with the bill’s sponsors and feels that it can adequately ensure the protection of waterways solely through FIFRA and does not need to implement the permitting provisions in the CWA. Brabury’s full testimony can be read here.
Since June 2010, EPA has been, and remains, in the process of developing new permit requirements in accordance with the 2009 court ruling. It has recently requested an extension on the deadline for when the court ruling will take effect. The court stated that its mandate should take effect on April 9, 2011, but EPA has requested that the deadline be extended until October 31, 2011. The agency’s new permitting requirements may in fact achieve similar results as the proposed bill, with regards to reducing environmental protections. EPA has proposed issuing a “pesticide general permit” which would essentially grant blanket approval to all pesticide applicators operating near waterways. It would accomplish this through issuing a single permit which would apply to all such potential applications, and would largely remove the opportunity for environmental oversight of specific applications. The only aquatic applications to which the general permit would not apply are those which would occur near waters which are known to be already contaminated with a particular pesticide, and those near “outstanding national resource waters.” To learn more about Beyond Pesticides’ concerns regarding the proposed general permit, read our comments to EPA.
The next step for H.R. 872 is for it to be considered by the House Committee on Transportation and Infrastructure. If your Congressional representative sits on this committee — see list here — please contact the Rep. with a message that explains your feelings for reducing pollution and contamination of our waterways. If your Representative is not on the Committee, you can still communicate your concerns to Committee members. Contact information can be found here.