House panels look to avoid dual EPA permitting

Congress should undo a 2009 court ruling that would require U.S. EPA to issue additional environmental permits to some pesticide users, federal officials and some lawmakers agreed yesterday.

At issue is a fast approaching court-ordered deadline that would require users who spray pesticides over water to obtain a second permit from U.S. EPA under the Clean Water Act (CWA). Those pesticides are already regulated by EPA under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

In April 2009, the 6th U.S. Circuit Court of Appeals ruled in National Cotton Council v. EPA that the FIFRA requirements were not sufficient for pesticides sprayed over water sources and ordered EPA to roll out a new permitting program by April. The ruling was widely applauded by environmental groups. The Supreme Court has decided not to hear an appeal of the case.

There appears to be some bipartisan consensus that Congress should legislate to prevent the court ruling from taking effect, led by Rep. Jean Schmidt (R-Ohio), who chairs the House Agriculture subcommittee that oversees horticulture. Her subpanel and the Transportation and Infrastructure subcommittee that handles water resources and environment issues met jointly to consider the issue yesterday.

The issue appears to be one of the few instances where congressional Republicans and EPA are on the same page. Schmidt's panel also circulated draft legislation that was written in consultation with EPA, which has said FIFRA sufficiently regulates pesticides in water.


Schmidt indicated yesterday that passing the legislation is a top priority for the panel. She said the additional permitting would create an unnecessary economic strain on both EPA and businesses.

"This order," she said, "will impose a burden on the EPA, state regulatory agencies and pesticide applicators that will cost our economy dearly in terms of jobs as well as severely threaten the already critical budgetary situation facing government at all levels."

Nutrition and Horticulture ranking member Joe Baca (D-Calif.) also said the additional permit process would add $1.7 million in annual costs to "cash-strapped states" and an additional $50 million in costs to pesticide applicators.

"In my home state of California, we face a 12.5 percent unemployment rate, and a $25 billion budget deficit," he said. "We simply cannot afford this regulatory burden."

The legislation may face some hurdles, however. Water Resources and Environment Subcommittee ranking member Timothy Bishop (D-N.Y.) criticized the committee for presenting a one-sided witness list. Bishop said Democrats tried unsuccessfully to add a representative from the U.S. Geological Survey to testify on a 2006 report on dangerous amounts of pesticides in surface and ground water throughout the country.

Bishop also sought to call on the lead attorney in the National Cotton Council case.

"The lack of opposing views on the witness panel hinders our ability to even discuss the very issue that members are struggling to understand -- the potential benefits and drawbacks from regulating the discharge of pesticides into U.S. Waters under either [FIFRA] or the [CWA]."

And 12 Republican senators sent a letter to the Office of Management and Budget late last year accusing EPA of expanding the reach of its "general permit" for pesticides over water (Greenwire, Dec. 16, 2010).

But Steven Bradbury, director of EPA's Office of Pesticide Programs, testified on the effectiveness of EPA's pesticide regulation under FIFRA, essentially arguing that a secondary permit process was unnecessary.

"The regulatory restriction imposed by EPA under FIFRA directly controls the amount of pesticide available for transport to surface waters, either by reducing the absolute amount of pesticide applied or by changing application conditions to make transport of applied pesticide less likely," he said. "In sum, EPA uses its full regulatory authority under FIFRA to ensure that pesticides do not cause unreasonable adverse effects on human health or the environment, including our nation's water resources."

Bradbury also highlighted a 10-year program EPA completed in 2008 that surveyed 600 active ingredients in pesticides. As a result of the survey, a third of those products were deemed unacceptable for use because they may be hazardous to health.

Former Rep. John Salazar (D), who is now the commissioner of the Colorado Department of Agriculture, testified that the court ruling "contradicts the original intent of Congress" by forcing EPA to issue permits under the CWA for activities already regulated by FIFRA and state pesticide laws.

Further, Salazar said state departments of agriculture "will also face enormous costs as permittees in the wake of the ruling."

That sentiment -- that the ruling would produce undue economic strain through redundant regulation -- was echoed by Andrew Fisk, who testified on behalf of the Association of State and Interstate Water Pollution Control Administrators; Dominick Ninivaggi, who represented the American Mosquito Control Association; and Norm Semanko, who testified on behalf of the National Water Resources Association.

Like what you see?

We thought you might.

Request a trial now.

Get access to our comprehensive, daily coverage of energy and environmental politics and policy.