On Wednesday, March 30, 2011, the House is scheduled to consider H.R. 872, Reducing Regulatory Burdens Act of 2011, under a suspension of the rules requiring a two-thirds majority for passage.  H.R. 872 was introduced by Rep. Bob Gibbs (R-OH) on March 2, 2011, and was referred to the House Committee on Transportation and Infrastructure.  On March 16, 2011, a markup was held and the committee reported the legislation by a vote of 46-8.

H.R. 872 would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to clarify that the Administrator of the Environmental Protection Agency (EPA) or a state may not require a permit under the Federal Water Pollution Control Act for the application of pesticides regulated under FIFRA. 

The bill would amend the Federal Water Pollution Control Act to clarify that a National Pollutant Discharge Elimination System (NPDES) permit shall not be required for a discharge of pesticides registered under FIFRA.  The bill would provide exceptions which would allow the EPA to require a NPDES permit for the discharge of pesticides that would not fall under FIFRA or would discharge pesticides in violation of FIFRA.   Exceptions to the prohibition on permit requirements include:

1. A discharge resulting from a violation of a FIFRA provision that is relevant to protecting water quality.
2. Stormwater discharges regulated under the Federal Water Pollution Control Act.
3. Municipal or industrial discharges regulated under the Federal Water Pollution Control Act.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was enacted in 1947 and was effectively overhauled by Congress in 1972.  FIFRA mandates that the Environmental Protection Agency (EPA) regulate the use and sale of pesticides to protect human health and preserve the environment.  According to the EPA, “all pesticides distributed or sold in the United States must be registered (licensed) by EPA.  Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications ‘will not generally cause unreasonable adverse effects on the environment.’”

On November 27, 2006, the EPA issued a final rule clarifying specific circumstances in which a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit is not required for pesticides used on or around water if the pesticides are legally registered and regulated under FIFRA.  The Final Rule exempted two types of pesticide application activities from regulation under the NPDES permit program, as long as the applications were FIFRA-compliant.  Specifically, pesticides applied directly to waters to control pests such as mosquito larvae and aquatic weeds, and pesticides applied over or near waters where a portion of the pesticide is unavoidably deposited to such waters were exempted from NPDES permit requirements under the Clean Water Act if they were FIFRA compliant.  According to the EPA’s rule, pesticides applied to U.S. waters in a manner consistent with all relevant requirements of FIFRA are not ‘‘pollutants’’ under the Clean Water Act and thus do not require an NPDES permit.

On January 7, 2009, the U.S. Court of Appeals for the Sixth Circuit vacated EPA’s 2006 rule exempting certain pesticide applications that are compliant with FIFRA from the permitting requirements of the Clean Water Act.  The court order repealing the EPA exemption for pesticides covered by FIFRA will go into effect on April 9, 2011.  According to the Committee on Transportation and Infrastructure, “At that time, pesticide applications not covered by a [NPDES] permit are subject to a fine of up to $37,500 per day per violation.”  In addition, pesticide users will be subject to litigation under the citizen suit provision of the Clean Water Act.  The underlying legislation would clarify the Congressional intent that certain pesticides subject to FIFRA are not subject to NPDES permit requirements under the Clean Water Act.  According to the bill’s sponsor, Rep. Bob Gibbs (R-OH), “This bill prevents states and a wide range of public and private pesticide users from facing duplicative, unnecessary financial and administrative burdens in order to comply with the new permitting process.”

According to the Congressional Budget Office (CBO), “enacting this legislation would have no significant impact on the federal budget.”