Sorry Sixth Circuit – You Just Got Housed: House passes a bill taking pesticides out of CWA’s jurisdiction

On Tuesday, the House of Representatives passed a bill sponsored by Rep. Bob Gibbs (R-Ohio) known as the Reducing Regulatory Burdens Act of 2011 (or H.R. 872). The bill would amend the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) such that CWA permits, known as National Pollutant Discharge Elimination System permits (or NPDES permits), would not be required when a pesticide is applied to or near a navigable waterway in accordance with its FIFRA label.

Essentially, the bill takes pesticides out of the definition of pollutant such that these permits are not mandated.

The bill is a response to the Sixth Circuit’s January 2009 decision in National Cotton Council of America et al. v. U.S. Environmental Protection Agency. That case revolved around a final rule issued in 2007 by EPA that concluded that pesticides applied in accordance with FIFRA are exempt from the CWA’s permitting requirements. Sound familiar?? Environmental groups and industry groups challenged the rule as beyond EPA’s authority and EPA defended on the grounds that the CWA is ambiguous and the final rule is a “reasonable construction” of the CWA. The Sixth Circuit disagreed with EPA finding that the CWA is not ambiguous and that these pesticides were intended to be included therein.

Supporters of the bill, as you may have guessed from it’s title, say that the Sixth Circuit decision would cause an unnecessary red tape nightmare for farmers, small businesses and public agencies. Gibbs stated that it “judicially expanded the scope of Clean Water Act regulation” into “areas and activities not originally envisioned or intended by Congress.”

Opponents, on the other hand, state that FIFRA and the CWA regulate different things and that FIFRA does not regulate what goes into the waterways. They cite incidents such as the one in 1996, when an irrigation district in Oregon discharged an herbicide into irrigation canals to kill aquatic weeds and ended up killing approximately 90,000 juvenile salmon when it flowed into an adjacent creek.

The bill is now headed to the Senate where there is no separate companion legislation. Stay tuned!!