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Take Action: Efforts to Dismantle Clean Water Act Protections Continue in the Senate

(Beyond Pesticides, April 6, 2011) In yet another move to dismantle Clean Water Act (CWA) regulations regarding pesticides, U.S. Senator Pat Roberts (R-KS), ranking member of the Senate Committee on Agriculture, Nutrition and Forestry introduced legislation (S. 718) aimed to “eliminate a burdensome, costly and redundant permit requirement for applications of pesticides.” Last week a similar bill, H.R. 872, passed in the House which prevents the U.S. Environmental Protection Agency (EPA) from applying the protective CWA permit regulations to monitor pesticides applied to and near U.S. waters. However, EPA has moved forward and published its draft version of the final permit.

Like HR 872, S. 718, “Bill to amend the Federal Insecticide, Fungicide, and Rodenticide Act to improve the use of certain registered pesticides,” would ensure that Clean Water Act permits are not required for the application of pesticides and amends the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) by stating that no permit shall be required for the use of a pesticide that is registered under FIFRA. This bill would mean that pesticide applicators will be able to discharge pesticides into US waterways without any government oversight. Should this bill pass in the Senate it would mean final legislation can be signed by the President effectively making it law that EPA cannot uphold the Clean Water Act when it comes to protecting U.S. waters from pesticides. Take Action.

Last week HR 872 passed the U.S. House of Representatives by a vote of 292-130. The bill, introduced by Rep. Bob Gibbs (R-OH), amended FIFRA and CWA to eliminate provisions requiring pesticide applicators to obtain a permit to allow pesticides or their residues to enter waterways. The bill reversed a 2009 Sixth Circuit court decision which ruled that, under FIFRA and CWA, the EPA must require such permits.

The January 2009 Sixth Circuit Court of Appeals ruling in National Cotton Council v. U.S. Environmental Protection Agency, requires pesticide applications to be permitted under the Clean Water Act. The National Pollutant Discharge Elimination System (NPDES) permit would be in addition to the less protective label requirements under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). EPA drafted proposed rules in 2010 outlining the applicability of the permits for pesticide usage. Since then, industry has lobbied hard to get Congress to prevent this measure from going into effect this year.

Sen. Roberts and the other cosponsors of the bill: Senators John Barrasso (R-WY), Mike Enzi (R-WY), Mike Crapo (R-ID), Mike Johanns (R-NE), Richard Lugar (R-IN), James Risch (R-ID), Saxby Chambliss (R-GA), Thad Cochran (R-MS), Richard Burr (R-NC), Roy (Blunt R-MO), Jerry Moran (R-KS) and Charles Grassley (R-IA), believe that NPDES permits are burdensome on farmers, even though the permits are only required for a narrow range of uses, and does not affect terrestrial agricultural spraying. NPDES permits will monitor the discharge of pesticides into waterways by local and state authorities, including evaluation of the potential risks discharges might present to aquatic and semi-aquatic species and help safeguard against contaminated fish and drinking water.

Meanwhile, stating that “the provisions of this permit are designed to improve protection of public health and our nation’s water quality,” EPA has posted a pre-publication version of its draft final pesticide general permit. The pre-publication version of the draft final pesticide general permit has concluded interagency review by the Office of Management and Budget. Since EPA is currently engaged in consultation with federal resource agencies under the Endangered Species Act (ESA), this version of the draft final permit does not contain any additional or revised conditions that may result from ongoing ESA consultation.

According to the agency, this draft final permit is not considered a “final agency action.” Even though legislation (HR 872) passed the House of Representatives that would remove the need for the permit, EPA states that it is still providing a preview of the draft final permit to assist states in developing their own permits and for the regulated community to become familiar with the permit’s requirements before it becomes effective.

The draft has not significantly changed from the proposed permit in 2010. The draft version of the final permit covers operators who 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 would not cover 1) non-target spray drift, or 2) discharges of pesticides to waterbodies that are impaired for that pesticide. Agricultural runoff and irrigation return flows are exempt from permitting under the Clean Water Act and, thus, do not require CWA permits. The permit also does not cover, nor is permit coverage required, for pesticide applications that do not result in a point source discharge to waters of the U.S. such as terrestrial applications for the purpose of controlling pests on agricultural crops, forest floors, or range lands.

Take Action:
Let your Senator know that they must not support S. 718.
Send a letter urging them to instead protect our fish, food and drinking waters from pesticide contamination.


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