Legislation Introduced to Tackle Sixth Circuit Permitting Problem

August 13, 2010 Bookmark and Share

Agriculture leaders in the Senate and House have introduced legislation that would eliminate the need for additional permitting for pesticide or other crop protection product applications if they are performed within existing label requirements.

The question of permitting has become a serious concern for agricultural producers and a major area of work for agriculture advocacy organizations like NAWG since a Sixth Circuit Court ruling in early 2009.

Ruling the case of National Cotton Council of America v. Environmental Protection Agency (EPA), the Court concluded pesticide discharge is a point source of pollution subject to additional regulation under the Clean Water Act (CWA), meaning producers would need additional permitting for every crop protection application. In February, the Supreme Court declined to take the case on appeal, so the Sixth Circuit’s ruling stands as law despite being duplicative of existing regulation and fraught with unintended complications.

Senate Agriculture Committee Chairman Blanche Lincoln (D-Ark.) and Ranking Member Saxby Chambliss (R-Ga.) announced last Friday they had introduced S. 3735 to amend the Federal Insecticide, Fungicide and Rodenticide Act (known as FIFRA) such that any “plant pest, noxious weed or pest control activity” done in accordance with it would not require a permit under the Clean Water Act. In a press release, Lincoln explained the bill saying it is “very simple: as long as a producer is complying with FIFRA, then no Clean Water Act permit will be required.”

House Agriculture Committee Ranking Member Frank Lucas (R-Okla.) introduced companion legislation in his body this week.

NAWG is highly supportive of these measures and this week coordinated a letter of 18 major agriculture groups urging quick passage and offering any assistance in the legislative process.

“Adding a layer of additional requirements in the form of a CWA NPDES permit will create new costs and increase confusion regarding the use of these already heavily regulated products,” the groups told Lincoln and Chambliss. “Requiring CWA permits creates the potential for inadvertent, technical violations of federal law by pesticide users – with fines of up to $37,500 per day with no tangible benefits related to protecting water quality.”

NAWG and other agricultural groups have also been working coalition partners and officials at EPA and USDA to evaluate a proposed general permit formulated by EPA that is meant to streamline the regulatory process. That permit unfortunately left more questions than answers for producers, and NAWG will continue to work on both administrative and legislative tracks to find a solution to this problem.

To read the letter sent this week, please visit www.wheatworld.org/environmentalissues.