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Congress once again taking on double-permitting for pesticides
Michigan Correspondent

WASHINGTON, D.C. — Some members of Congress are trying again this year to pass legislation that would eliminate what they describe as duplicative and unnecessary regulations arising out of the court case National Cotton Council, et. al. v. EPA (U.S. Environmental Protection Agency).

On Jan. 7, 2009. the U.S. Sixth Circuit Court of Appeals held in that case the final rule issued by the EPA – which effectively made it so a pesticide registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) would not also have to have a National Pollutant Discharge Elimination System (NPDES) permit – was not a reasonable interpretation of the Clean Water Act (CWA), and vacated the rule.

The court held that CWA permits are required for all biological pesticide applications and chemical pesticide applications that leave a residue in water when such applications are made in or over, including near, waters of the United States.

Farmers and other businesspeople cried foul and their advocates in Congress have been trying to overturn the court’s decision with legislation. In November 2011, H.R. 872, which had been passed in the U.S. House, was held up in the Senate. This was reportedly done by Sens. Barbara Boxer (D-Calif.) and Ben Cardin (D-Md.), who thought a study was needed to determine the extent of pesticide contamination in the nation’s waterways.

In exchange for the study, the senators would reportedly have agreed to something providing regulatory relief to businesses affected by the court ruling. But the compromise never happened and H.R. 872 was never made law.

It’s not clear the EPA has been enforcing the court’s decision, as yet. “As far as I know they’re not enforcing it,” said Danny Murphy, president of the American Soybean Assoc. (ASA). “It’s very much appreciated that they haven’t taken that step.”

But Murphy said a court order could result in the implementation of the decision, which he and other representatives of the ag industry believe would be unacceptably burdensome to many businesses. “All of the pesticides have been approved by the EPA and the USDA,” he added.

In January a Senate bill was introduced to do the same thing as H.R. 872 in the previous Congress and, earlier this month, several members of the House introduced their own new legislation, H.R. 935, the Reducing Regulatory Burdens Act of 2013.

In an open letter to Congress dated March 6, dozens of farmer groups excoriated the court’s decision and the prospect of having to get a NPDES permit on top of current requirements.

“This national permit couldn’t come at a worse time as our national economy struggles to recover from the recession, and states and the federal government are facing budget cuts,” the letter stated.
“The duplicative requirements affect all levels of government and industry, causing further unfunded mandates on fragile industries and governments, creating additional red tape, squeezing existing resources and threatening further legal liabilities.”

The problem with H.R. 872 was that Senate Majority Leader Harry Reid (D-Nev.) never took it out on the floor, said one Congressional staffer who’s familiar with the subject. She asked not to be identified by name.

“We hope that (H.R. 935) will be brought out on the floor because we think it’s an important issue,” she added.

Murphy thinks there’s positive sentiment in the Senate for this legislation and that if it hadn’t been for the hold put on the previous bill, it would be the law of the land by now.

Not everyone is in favor of the legislation, however. Some environmental groups, for example, opposed H.R. 872 and believe National Cotton Council, et. al. v. EPA was a good decision. The Northwest Center for Alternatives to Pesticides stated only the CWA specifically aims to restore the most polluted waters or protect pristine waters from contamination.

It said permits granted under the CWA can prevent pollutants from being discharged into the nation’s waterways and improve water quality for fishing, swimming and other uses.