On February 16, 2011, two US House of Representative committees held a joint hearing “to consider reducing the regulatory burdens posed by the case National Cotton Council v. EPA (6th Cir. 2009) and to review related draft legislation.” EPA’s implementation of the National Cotton Council decision would require certain pesticide applicators to obtain a permit under the Clean Water Act (CWA) for the use of pesticides into or near “navigable waters” of the United States. EPA’s “pesticide general permit” would apply to a variety of use sites including the control of algae, weeds, and nuisance animals in aquatic environments; control of mosquitoes and other flying pests; and control of forest canopy pests.

Traditionally EPA had interpreted the CWA as not requiring a permit for various pesticide applications so long as the pesticide was applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA’s interpretation was challenged and subsequently struck down by the Sixth Circuit in 2009. EPA did not challenge the Sixth Circuit decision but sought a stay to develop and implement a pesticide permit. The court order would go into effect on April 9, 2011, following a previously granted two-year stay, unless there is some form of intervention.

The collaborative effort between the Nutrition and Horticulture Subcommittee (House Committee on Agriculture) and the Subcommittee on Water Resources and the Environment (House Committee on Transportation and Infrastructure) included a discussion of proposed draft legislation prepared by EPA that would exempt “point source discharge into navigable waters of a pesticide registered under [FIFRA] resulting from the application of such pesticide.” The witnesses for the hearing included Dr. Steven Bradbury (Director, EPA Office of Pesticide Programs), Honorable John Salazar (Commissioner, Colorado Department of Agriculture; National Association of State Departments of Agriculture), Dr. Andrew Fisk (President, Association of State and Interstate Water Pollution Control Administrators), Mr. Dominick Ninivaggi (American Mosquito Control Association), and Mr. Norman Semanko (National Water Resources Association).

The opening remarks offered by Nutrition and Horticulture Chair Jean Schmidt (R-OH) indicated that a rapid bipartisan legislative solution was being sought by the committees: “Having exhausted all judicial review options and without congressional action, this order will impose a burden on the EPA, state regulatory agencies, and pesticide applicators, which will cost our economy dearly in terms of jobs.” The testimonies offered by the witnesses (with the exception of EPA) were in general agreement with this sentiment. The final four witnesses all agreed that some legislative solution was needed prior to April 9, 2011, when the anticipated expansion of new CWA permittees is expected to place significant burden on states already stressed by a fragile economy. In addition, the final four witnesses all mentioned that no tangible improvement to water quality would result from this modification to CWA and, in fact, may jeopardize crucial public health uses of pesticides such as mosquito eradication to control spread of West Nile Virus. Dr. Fisk implied that the states in general also do not anticipate any meaningful improvement to water quality: “In preparation for this hearing, [the Association of State and Interstate Water Pollution Control Administrators] asked states if they anticipated meaningful water quality improvements through permitting this new group of sources. Of those states able to respond in a tight timeframe, an overwhelming majority said no.”

Dr. Bradbury’s testimony addressed the protection offered under the FIFRA program. He stated that EPA uses the full authority of FIFRA to “directly control 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.”

Previously, in December 2010, 12 senators sent a letter to the Office of Management and Budget expressing concerns regarding the impacts the permit program and the ability to meet the timelines.

Congress will need to act quickly to prevent the problems discussed during the hearing.