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Wednesday, March 23, 2011

Pesticide Use and Water Quality: Are the Laws Complementary or in Conflict?

Claudia Copeland
Specialist in Resources and Environmental Policy

This report provides background on the emerging conflict over interpretation and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they were enacted, there had been little apparent conflict between them. But their relationship has recently been challenged in several arenas, including the federal courts and regulatory proceedings of the Environmental Protection Agency (EPA). In this report, a brief discussion of the two laws is followed by a review of the major litigation of interest. EPA’s efforts to clarify its policy in this area are discussed, including a regulation issued in 2006 that was subsequently vacated by a federal court, as well as possible options for EPA and Congress to address the issues further.

FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. The CWA creates a comprehensive regulatory scheme to control the discharge of pollutants into the nation’s waters; the discharge of pollutants without a permit violates the act.

Several federal court cases testing the relationship between FIFRA and the CWA have drawn attention since 2001. In two cases concerning pesticide applications by agriculture and natural resources managers, the U.S. Ninth Circuit Court of Appeals held that CWA permits are required for at least some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters. It held in a third case that no permit was required for the specific pesticide in question. Most recently, the U.S. Second Circuit Court of Appeals ruled in 2010 that a CWA discharge permit for mosquito control activities is not required before April 2011.

Several of the rulings alarmed a range of stakeholders who fear that requiring CWA permits for pesticide application activities would present significant costs, operational difficulties, and delays. Pressed to clarify its long-standing principle that CWA permits are not required for using FIFRA-approved products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental activists strongly opposed EPA’s actions, arguing that FIFRA does not protect water quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders, such as pesticide applicators, endorsed the rule. The rule was challenged, and in 2009 a federal court vacated the regulation. Several industry groups petitioned for a rehearing on the court’s ruling, while the federal government asked the court to stay the order vacating the exemption for two years (until April 2011), to provide time for working with states to develop a general permit for pesticide applications covered by the decision. The court denied the request for rehearing and granted a two-year delay. EPA proposed a draft general permit in June 2010 and is working on promulgation of a final permit. EPA now expects to issue the permit by July 2011; the government has asked the court for additional time to implement it (until October 31, 2011).

Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. Legislation intended to nullify the 2009 federal court ruling has been introduced in the 112
th Congress (H.R. 872) and has been approved by a House committee.

Date of Report: March 9, 2011
Number of Pages: 18
Order Number: RL32884
Price: $29.95

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