(Beyond Pesticides, April 12, 2011) Ask your Senators to stand with you in opposing S. 718, the pesticide industryâ€™s latest move in their assault on the Clean Water Act (CWA). Like HR 872 that recently passed the U.S. House of Representatives, the Senate bill would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the CWA to eliminate provisions requiring pesticide applicators to obtain a permit to allow pesticides or their residues to enter waterways. Take action now.
S. 718 – the so-called “Bill to amend the Federal Insecticide, Fungicide, and Rodenticide Act to improve the use of certain registered pesticides,” would ensure that CWA 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 CWA when it comes to protecting U.S. waters from pesticides.
The U.S. House of Representatives passed the companion legislation, HR 872, by a vote of 292-130. The bill, introduced by Rep. Bob Gibbs (R-OH), 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 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), claim 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 â€śthe provisions of this permit are designed to improve protection of public health and our nationâ€™s water quality,â€ť 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 â€śfinal agency action.â€ť Even though legislation 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 permitâ€™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.
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