The National Grange

Currently, the U.S. Senate has scheduled a hearing on H.R. 872 – Reducing Regulatory Burdens Act of 2011, which seeks to keep the regulation of insecticides, fungicides and rodenticides under the Federal Insecticide, Fungacide, and Rodentacide Act or FIFRA. H.R. 872 passed overwhelmingly in the U.S. House of Representatives with bi-partisan support and will now be heard in the Senate Agriculture Committee early next week.

In early 1970s, Congress enacted both the CWA, to regulate federal waters, and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) to regulate pesticide reviews, sales and use. Congressional intent as to the interaction of the two laws was clearly spelled out in the House Committee Report for FIFRA in 1971. However, in 2009 the 6 th Circuit Court of Appeals overturned EPA’s 2006 rule specifically exempting from Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permitting of aquatic pesticide applications. EPA is now forced to develop an NPDES permitting system for aquatic pesticides. This one decision nearly doubles the population of entities permitted under CWA. Affected by these NPDES pesticide-use permits will be state agencies, city and county municipalities, parks and recreation managers, utility rights-of-way managers, railroads, roads and highway vegetation managers, mosquito control districts, water districts and managers of canals and other water conveyances, pesticide applicators, farmers, ranchers, forest managers, scientists, and many others.

Never under FIFRA or the CWA has the federal government required a permit to apply pesticides “to, over or near” waters of the U.S. for control of such pests as mosquitoes, forest canopy insects, algae, or invasive aquatic weeds and animals, like Zebra mussel.

Unwarranted Decision - The decision of the 6 th Circuit was wrong. The U.S. government is on record agreeing that the 6th Circuit got it wrong in National Cotton Council v. EPA, and, in a brief to the Solicitor General, suggested that the court violated Supreme Court precedent by failing to provide proper due deference to an agency determination. The court agreed that pesticides when applied consistent with FIFRA label directions are not pollutants, and, as such, they shouldn’t require NPDES permits. But, the court went on to rule that any residues that may remain after the beneficial use has been completed are pollutants, and, in order to control those residues, NPDES permits are necessary when the pesticides are initially applied. The court incorrectly reversed EPA’s long-standing policy thus layering CWA regulations on top of established, rigorous FIFRA requirements.
Unnecessary Burden - 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 provided by FIFRA compliance. Even EPA itself conservatively estimates that the annual time burden and cost of permits for pesticide applications over or near water to be more than 1 million hours and nearly $52 million.
Uncertain Liability - To date, EPA’s proposed general permit only covers applications of pesticides registered for aquatic use and applied to water or forest canopies into or over flowing or seasonal waters, and conveyances to those waters; it would not cover pesticide applications registered and intended for terrestrial use. However, activists indicate that they believe most pesticide applications should be permitted if there is even a chance that the pesticide could come in contact with any “water,” either flowing water or seasonal drainage ditches that could be a conveyance to a water of the U.S. So, even though EPA may not currently cover farmland and rangeland pesticide applications, nothing in the CWA or the proposed permit protects against citizen suits against farmers for not obtaining a permit. This establishes an uncertain liability for farmers and ranchers, as well as users applying pesticides to golf courses and public utility rights of way, and private homes and businesses.

The Solution

H.R. 872, the Reducing Regulatory Burdens Act, would amend FIFRA and CWA to conclusively declare that, under both laws, no permit is required for the labeled use of any registered pesticide . It would instruct EPA and the courts that Congress did not intend other environmental laws to overtake FIFRA by creating duplicative regulatory burdens. On March 31, 2011, H.R. 872 passed the House. The measure will now be heard in the Senate Agriculture Committee early next week.

Please email your U. S. Senator and urge them to vote yes on H.R. 872. It is even more critical to contact your Senator if you live in the following states who have Senators sitting on the Agriculture Committee: Colorado, Iowa, Indiana, Kansas, Michigan, Minnesota, Montana, Nebraska, New York, Ohio, Pennsylvania, and Vermont.

If you have any questions or comments regarding this Action Alert, please contact National Grange Program Assistance Grace Boatright by e-mail: gboatright@nationalgrange.org; or by phone 1-888-4GRANGE. Ext. 107.

Thank you for your grassroots participation in the National Grange Legislative Program.