House Ag to Examine Legislative Proposal on NPDES Issue

February 11, 2011 Bookmark and Share

Subcommittees of the House Agriculture Committee and the House Transportation and Infrastructure Committee are scheduled to meet Wednesday to review legislation that tackles new and duplicative pesticide application permitting requirements set to go into effect on April 9.

The new requirements emanated from a January 2009 ruling by the Sixth Circuit Court of Appeals in National Cotton Council of America v. Environmental Protection Agency (EPA), which said for the first time that pesticide discharge is a point source of pollution subject to additional regulation under the Clean Water Act, meaning producers would need additional permitting for every crop protection application.

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.

The Sixth Circuit Court declined a request from NAWG and other agriculture groups to hold a rehearing, but stayed the decision for two years to give time for federal and state governments to figure out how to enforce it.

During that time, EPA has proposed a general permit for applications that could reach “waters of the United States”, but that proposal largely left more questions than answers for crop producers, not least because the legal definition of “waters of the United States” is unclear.

With the deadline for enforcement rapidly approaching, NAWG and other commodity groups have been working to set the stage for a legislative solution.

The groups have worked with key Members’ offices and EPA to determine how best to tackle the issue since before the November elections. This work has helped to form the bill that will be before Members on Wednesday, which should make clear that if a user is following an approved pesticide label under the auspices of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), then the user will be in compliance with the Clean Water Act as well.

It is hoped the bill will be quickly approved by both the House Agriculture and Transportation panels, which have joint jurisdiction on the issue, and move quickly through the legislative process toward enactment.

The House hearing is scheduled to begin at 1 p.m. The hearing should be webcast online at

Supporting documents being used by NAWG and coalition partners when discussing this issue are available online at