Senate Leaders Urged to Advance H.R. 872

On Nov. 30, '11, the Pesticides Policy Coalition sent a letter (18k pdf posted 12/5/11) to Senate Majority Leader Reid (D-NV) and Minority Leader McConnell (R-KY) stating that Congress should act to restore the appropriate scope of the NPDES permitting process through adoption of H.R. 872. The NCC is a member of that coalition, which includes 39 agricultural and agribusiness organizations.

On Oct. 31, EPA issued a final NPDES Pesticide General Permit (PGP) for point source discharges from the application of pesticides to US waters under the Clean Water Act (CWA). The PGP and other information are posted at http://cfpub.epa.gov/npdes/home.cfm?program_id=410.

EPA's action was in response to a '09 decision by the US Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA) in which the court vacated EPA's '06 Final Rule on Aquatic Pesticides (see http://cfpub.epa.gov/npdes/home.cfm?program_id=414#decision) that exempted pesticides from CWA permitting. As a result of the court's decision, NPDES permits are generally required for these types of discharges as of Oct. 31.

The final PGP covers operators that 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 requires permittees to minimize pesticide discharges through the use of pest management measures and monitor for and report any adverse incidents. Applicators treating areas greater than determined acreage also are required to submit a Notice of Intent (NOI) prior to beginning to discharge and implement integrated pest management-like practices. Record-keeping and reporting requirements will provide information to EPA and the public regarding where, when and how much pesticides are being discharged to US waters. Pesticide application use patterns not covered by EPA's PGP may need to obtain coverage under an individual permit or alternative general permit if they result in point source discharges to US waters. The CWA allows for citizen lawsuits.

The PGP will provide coverage for discharges in the six states where EPA is the NPDES-permitting authority, which, of the cotton-producing states, include New Mexico and Oklahoma. The remaining 44 states are authorized to develop and issue their own NPDES pesticide permits, which are similar to the EPA permit.

While EPA's general permit requirements must be met as of Oct. 31, applicators will be covered automatically under the PGP without submitting an NOI for any discharges before Jan. 12, '12. To continue coverage after Jan. 12, '12, those applicators who are required to submit NOIs will need to do so at least 10 days (or 30 days for discharges to National Marine Fisheries Service (NMFS) Listed Resources of Concern) prior to Jan. 12. For the first 120 days that the permit is in effect, EPA will focus on providing compliance assistance and education of the permit requirements, rather than on enforcement actions.

Agricultural groups, including the NCC, believe that pesticide applications already are highly regulated under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and this permitting is a paperwork exercise that will provide no additional environmental protection. These groups exhausted judicial relief and have been lobbying Congress for a legislative fix.

In March of this year, the House passed a bipartisan bill, H.R. 872, which amends both the CWA and FIFRA to prevent such redundant regulatory burdens. Sens. Boxer (D-CA), chair of the Environmental and Public Works Committee, and Cardin (D-MD) put a hold on the bill. Sens. Stabenow (D-MI) and Roberts (R-KS) of the Senate Agriculture, Nutrition & Forestry Committee negotiated for a compromise agreement offering a two-year moratorium on the permits. However, Sen. Boxer insisted on a comprehensive study of pesticide impacts on waters, which has stalled the negotiations.

Under this PGP, 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.

(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.

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.

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.

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.

The final version was 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.

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.