An industry group representing pesticide applicators is shopping legislation around Capitol Hill that exempts pesticide spraying conducted in accordance with federal law from Clean Water Act (CWA) permitting requirements, industry sources say. The group is pushing the legislation
because it is concerned an EPA guidance on the issue does not provide adequate protection from citizen suits.
The effort is the latest phase of a campaign by farming groups, the pesticide industry, mosquito control officials and others to gain immunity from CWA citizen suits. It follows appellate rulings in 2001 and 2002 that said pesticide spraying into and over waters requires CWA National Pollutant Discharge Elimination System (NPDES) permits.
It also comes after the U.S. Court of Appeals for the Second Circuit ruled Dec. 9 in No Spray Coalition, et al. v. City of New York that citizens can sue pesticide applicators for violating the CWA regardless of whether an application complies with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
Industry groups say applications targeting West Nile virus, forest pests and other problems should be governed only by FIFRA because pesticide registrations already consider water quality. The groups contend NPDES permitting will create delays, impose new monitoring requirements and generate other costs.
"It’s not a cost that produces any benefits, and that’s the most troubling aspect," a source with the group shopping the bill says.
The industry group -- which spoke to Inside EPA on the condition that it not be named -- began meeting with Capitol Hill staff in recent weeks to gain support for a draft FIFRA amendment that states, "A product registered under this act, when used in accordance with the relevant requirements of this act, does not constitute the discharge of a pollutant that requires a National Pollutant Discharge Elimination System permit under the Clean Water Act."
Industry is trying to limit the effect of two rulings by the U.S. Court of Appeals for the Ninth Circuit in which judges found that pesticide applications are subject to the NPDES permits, prompting additional citizen suits to require CWA oversight. In its 2001 decision Headwaters, Inc. v. Talent Irrigation District, the circuit ruled that herbicides pumped into irrigation canals required NPDES permits, while the same court’s 2002 decision in League of Wilderness v. Forsgren held that aerial pesticide spraying over waters is also subject to CWA mandates.
The legislative effort comes as EPA is considering comments on a 2003 interim guidance that offered essentially the same policy as the draft bill. The guidance says applications that meet FIFRA labeling requirements do not require CWA permits.
The Capitol Hill push reveals industry’s view that guidance cannot prevent citizen suits, at least in the Ninth Circuit states, by environmentalists relying on the Talent and Forsgren precedents.
"Our concern is that EPA’s interim guidance statement may not outweigh a federal appellate court decision. Maybe there needs to be a more definitive answer or solution to this problem," the industry source says.
The source says, "We are trying to parallel EPA’s position as much as possible."
Several groups, such as CropLife America, the American Farm Bureau Federation and the American Mosquito Control Association have already pressed federal officials and the courts to address the exemption issue. But EPA has declined to date to float formal rules allowing the CWA exemption, and last year the Supreme Court declined an industry request to review the Forsgren case.
Industry sources have said winning legislative relief may prove equally hard, especially in an election year, when any effort to alter bedrock environmental laws will be heavily scrutinized.
Nonetheless, powerful lawmakers have already said pesticide spraying should not be subject to CWA permitting. Last year, lawmakers including House Transportation and Infrastructure Committee Chair Don Young (R-AK) and Senate Environment and Public Works Committee Chair James Inhofe (R-OK) unsuccessfully asked the Bush administration to appeal the Forsgren case to the high court.
The industry source backing the draft says the group would seek support from other industry organizations and local government officials concerned that the Ninth circuit rulings could hamper pesticide spraying to protect public health.
The group has been meeting with legislative staff and has not yet identified a legislative sponsor, the source says. "We are in the early stages of making sure people are comfortable with the concept and understand the need for the legislation," the source says.
Environmental groups oppose EPA’s policy on the issue and contend NPDES permits are a good way to track how pesticides affect water quality.
But the industry source says the draft bill would merely re-affirm the regulatory consensus in place until the Ninth Circuit decisions that FIFRA alone should be the governing statute, and adds that the bill is narrowly crafted. Illegal pesticide dumping should be subject to CWA enforcement, the source says.
