Pesticide Use and Water Quality: Are the Laws
Complementary or in Conflict?
Claudia Copeland
Specialist in Resources and Environmental Policy
August 6, 2015
Congressional Research Service
7-5700
www.crs.gov
RL32884
Pesticide Use and Water Quality: Are the Laws Complementary or in Conflict?
Summary
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. In 2010, the U.S.
Second Circuit Court of Appeals ruled that a CWA discharge permit for mosquito control
activities was 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. The federal government asked the court to stay the
order vacating the exemption for two years, 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 the requested delay, which was extended until October 31, 2011, when EPA
issued the permit. Under the final permit, pesticide applicators were covered automatically for
discharges before January 12, 2012. However, despite the agency’s efforts to minimize regulatory
burdens and cost, the permit is controversial.
Some believe that the controversy will only be resolved by congressional action to clarify the
intersecting scope of the Clean Water Act and FIFRA. The House passed legislation intended to
nullify the 2009 federal court ruling in the 112th and 113th Congresses. Similar bills have been
approved by House and Senate committees in the 114th Congress (H.R. 897 and S. 1500).
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Pesticide Use and Water Quality: Are the Laws Complementary or in Conflict?
Contents
Introduction ...................................................................................................................................... 1
The Laws ......................................................................................................................................... 2
The Litigation .................................................................................................................................. 4
The Ninth Circuit Cases ............................................................................................................ 4
The Second Circuit Cases .......................................................................................................... 6
Other Litigation ......................................................................................................................... 6
EPA’s Regulatory Responses: 2003-2006 ........................................................................................ 7
EPA Guidance ............................................................................................................................ 7
Regulatory Proposal .................................................................................................................. 9
Judicial Challenge to the EPA Rule ........................................................................................... 9
Initial Congressional Interest and Options ..................................................................................... 10
Options for EPA ....................................................................................................................... 11
EPA’s Pesticide General Permit ......................................................................................... 12
Other EPA Options ............................................................................................................ 13
Congressional Activity ............................................................................................................ 14
112th and 113th Congresses ................................................................................................ 15
114th Congress ................................................................................................................... 16
Contacts
Author Contact Information........................................................................................................... 17
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Pesticide Use and Water Quality: Are the Laws Complementary or in Conflict?
Introduction
It has been noted that “[t]he potential for overlapping and potentially conflicting regulatory scope
between federal statutes is common, especially in the heavily regulated area of environmental
protection.”1 This potential has received attention in connection with implementation of the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)2 and the Federal Water Pollution
Control Act (Clean Water Act, CWA).3 FIFRA requires the Environmental Protection Agency
(EPA) to regulate the sale and use of pesticides in the United States through registration and
labeling. The CWA is the principal federal law governing pollution in the nation’s surface waters.
Pesticides used to control weeds, insects, and other pests receive public attention because of
potential impacts on humans and the environment. Depending on the chemical, possible health
effects from overexposure to pesticides include cancer, reproductive or nervous-system disorders,
and acute toxicity. Similar effects are possible in the aquatic environment. Recent studies suggest
that some pesticides can disrupt endocrine systems and affect reproduction by interfering with
natural hormones.4 However, many pesticides and their breakdown products do not have
standards or guidelines, and current standards and guidelines do not yet account for exposure to
mixtures and seasonal pulses of high concentrations. Effects of pesticides on aquatic life are a
concern, because intensive surveys done by the U.S. Geological Survey found that more than
one-half of streams sampled had concentrations of at least one pesticide that exceeded an EPA
guideline for the protection of aquatic life. Whereas most toxicity and exposure assessments of
pesticides are based on controlled experiments with a single contaminant, sampling by the U.S.
Geological Survey found that most contamination of waterbodies occurs as pesticide mixtures.5
For the more than 30 years since Congress enacted FIFRA and the Clean Water Act, there had
been little apparent direct conflict between them. EPA’s operating principle during that time had
been that pesticides used according to the requirements of FIFRA do not require regulatory
consideration under the CWA. EPA had never required CWA permits for use of FIFRA-approved
materials, and EPA rules did not specifically address the issue. However, EPA’s interpretation and
operating practice regarding the relationship between the two laws have recently been challenged
in several arenas. Federal courts have been one of two battlegrounds so far where the potential
conflict between the regulatory scope of these two laws has been waged. EPA regulatory
proceedings have been the second battleground area. Congressional action adds a third testing of
the issues.
At issue is how FIFRA-approved pesticides that are sprayed over or into waters are regulated and,
specifically, whether the FIFRA regulatory regime is sufficient alone to ensure protection of water
quality or whether such pesticide application requires approval under a CWA permit. The issue
arose initially over challenges to some routine practices in the West (weed control in irrigation
1 Randall S. Abate and Matthew T. Stanger, “Pesticides and Water Don’t Mix: Addressing the Need to Close a
Regulatory Gap Between FIFRA and the CWA,” Environmental Law Reporter News & Analysis, January 2005, p.
10056.
2 7 U.S.C. §§136-136y.
3 33 U.S.C. §§1251-1387.
4 For information, see CRS Report R40177, Environmental Exposure to Endocrine Disruptors: What Are the Human
Health Risks?, by Linda-Jo Schierow and Eugene H. Buck.
5 U.S. Department of the Interior, U.S. Geological Survey, The Quality of Our Nation’s Waters, Nutrients and
Pesticides, USGS Circular 1225, 1999, pp. 3-9.
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ditches and spraying for silvicultural pest control on U.S. Forest Service lands). It subsequently
drew more attention in connection with efforts by public health officials throughout the country to
combat mosquito-borne illnesses such as West Nile virus. The litigation created uncertainty over
whether application of pesticides and herbicides to waterbodies requires a water discharge permit.
EPA tried to promulgate policy to clarify the relationship of the two laws and to address conflicts
resulting from several judicial rulings, ultimately in a regulation issued in November 2006. That
rule was challenged by multiple parties, and in January 2009, a federal appellate court vacated the
rule. A related issue of interest to many pesticide applicators, but not yet addressed by EPA policy
or rule, concerns pesticides that unintentionally impact waterbodies through drift or migration
from nearby land, such as a field of crops.
This report provides background on the conflict over interpretation and implementation of FIFRA
and the Clean Water Act. 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 and the November 2006 rule
and the 2009 federal court ruling are discussed, as well as possible options for EPA and Congress
to further address the FIFRA-CWA issues. In 2011 EPA issued a general CWA permit (the
Pesticide General Permit) in response to the court ruling. Despite EPA’s efforts to streamline the
permit and its applicability, the permit is controversial. As discussed below, Congress has for
some time considered legislation to nullify the court’s ruling.
The Laws
FIFRA is a regulatory statute governing the licensing, distribution, sale, and use of pesticides,
including insecticides, fungicides, rodenticides, and other designated classes of chemicals. Its
objective is to protect human health and the environment from unreasonable adverse effects of
pesticides. To that end, it establishes a nationally uniform pesticide labeling system requiring the
registration of all pesticides and herbicides sold in the United States, and requiring users to
comply with conditions of use included on the national label. A FIFRA label encompasses the
terms on which a chemical is registered, and its requirements become part of FIFRA’s regulatory
scheme. In registering the chemical, EPA makes a finding that the chemical “when used in
accordance with widespread and commonly recognized practice ... will not generally cause
unreasonable adverse effects on the environment” (7 U.S.C. §136a(c)(5)(D)).
EPA reviews scientific data submitted by pesticide manufacturers on toxicity and behavior in the
environment to evaluate risks and exposure associated with the pesticide product’s use and takes
into account the costs and benefits of various pesticide uses. If a registration is granted, the
agency specifies the approved uses and conditions of use, which the registrant must explain on
the product label. EPA may classify and register a pesticide product for general use or for
restricted use (those judged to be more dangerous to the applicator or to the environment which
can only be applied by or under the direct supervision of a person who has been trained and
certified). FIFRA preempts state, local, and tribal regulations stricter than or different from EPA
rules with respect to labeling requirements, but allows states and localities to adopt more
restrictive conditions with regard to sale and use.
Use of a pesticide product in a manner not consistent with its label is prohibited, and the law
provides civil and criminal penalties for violations. Under FIFRA, EPA generally enforces the
law’s requirements. However, the law also gives states with adequate enforcement procedures,
laws, and regulations primary authority for enforcing FIFRA provisions related to pesticide use.
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The objective of the CWA is to “restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” To that end, it creates a comprehensive regulatory scheme to
control the discharge of waste and pollutants; the discharge of pollutants into waters of the United
States without a permit violates the act. The permit requirement is at the heart of the act’s
compliance and enforcement strategy. Several aspects of these core requirements in the law are
important to evaluating whether the CWA applies to specific activities, including whether there is
a discharge from a point source (a discrete conveyance such as a pipe, ditch, container, vessel, or
other floating craft), whether the discharge is made into waters of the United States, and whether
the material discharged is a pollutant; all of these terms are defined in the act. Especially key in
the current context is whether pesticides are pollutants under the act. This issue has been central
to much of the judicial and regulatory debate over whether the two laws, CWA and FIFRA, are
complementary or in conflict. CWA Section 502(6) (33 U.S.C. §1362(6)) defines pollutant thus:
The term “pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage,
sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.
Section 402 of the act establishes the National Pollutant Discharge Elimination System (NPDES)
permitting requirement, which regulates the lawful discharge of pollutants. The act defines
“discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any
point source” (CWA §502(12); 33 U.S.C. §1362(12)). Discharges are permitted if they are
authorized under a NPDES permit that meets CWA requirements, including protecting the
receiving waters. NPDES permits specify limits on what pollutants may be discharged and in
what amounts. They also include monitoring and reporting requirements. They are either
individual case-by-case permits or general permits applicable to similar categories of activities
and similar waste discharges. Under the CWA, qualified states issue NPDES permits to regulated
sources and enforce permits, and the law allows states to adopt water quality requirements more
stringent than federal rules. As of 2015, 46 states have been delegated authority to administer the
permit program; EPA issues discharge permits in the remaining states.
The NPDES permit is the act’s principal enforcement tool. EPA may issue a compliance order or
bring a civil suit in U.S. district court against persons who violate the terms of a permit, and
stiffer penalties are authorized for criminal violations of the act. As a practical matter, the
majority of actions taken to enforce the law are undertaken by states, both because states issue the
majority of permits to dischargers and because the federal government lacks the resources for
day-to-day monitoring and enforcement. In addition, individuals may bring a citizen suit in U.S.
district court against persons who violate the terms of a CWA-authorized permit or who discharge
without a valid permit. FIFRA does not authorize citizen suits.
Throughout the United States, pesticides often are applied in, onto, or near waterbodies to control
weeds and insects. Whether those pesticides are adversely affecting water quality has not been a
disputed issue until recently. EPA’s long-standing practice and interpretation of the laws was that
a CWA permit is not required when pesticide application is done in a manner consistent with
FIFRA and its regulations. But that interpretation was challenged in several lawsuits brought
since the late 1990s that have been decided since 2001.
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The Litigation
Five federal court cases testing the relationship between FIFRA and the CWA have drawn the
most attention, three in the U.S. Court of Appeals for the Ninth Circuit in the West, concerning
pesticide applications by agricultural and natural resource managers, and two in the Second
Circuit Court of Appeals in the East, involving the use of pesticides by government and public
health authorities for mosquito control. These cases have been brought principally under the
citizen suit provisions of the CWA. Two of the Ninth Circuit decisions have held that CWA
permits are required for at least some activity involving the point source discharge of FIFRA-
regulated pesticides over or into waters of the United States, and the third held that a permit was
not required because the specific pesticide was not a chemical waste. The Second Circuit ruled in
two cases; most recently, it ruled that trucks and helicopters that discharge pesticides are point
sources, but it deferred requiring permits until EPA issues a CWA general permit, which is
discussed below.
The Ninth Circuit Cases
The first of the major cases on these issues involved application of herbicides in irrigation
ditches. In the case, a major issue was whether the application of pesticides constitutes the
discharge of a pollutant. Environmental groups challenged application of an aquatic herbicide
called Magnicide H to kill weeds and algae and sought to require that the applicator, a municipal
corporation that operates a system of irrigation canals in Oregon, obtain an NPDES permit.
The Ninth Circuit Court of Appeals endorsed the lower court’s ruling that the pesticide was a
pollutant under the CWA, and that the irrigation canals into which the pesticide was being
sprayed are “waters of the United States.”6 But it rejected the lower court’s holding that a CWA
permit was not required because the pesticide was properly regulated by FIFRA and had an EPA-
approved FIFRA label. The appeals court ruled that FIFRA and CWA have different purposes and
that, as such, neither could be controlling on the application of the other. The court said that
FIFRA creates a comprehensive regulatory scheme for the labeling of pesticides, requiring that all
insecticides and herbicides sold in the United States be registered with the EPA. It and the CWA
have different, although complementary, purposes, the court said, and using a pesticide with a
FIFRA-approved label does not obviate the need to obtain a CWA permit. The FIFRA label is the
same nationwide. The CWA permit considers local environmental conditions, which the FIFRA
label does not. Thus, a nationwide label on a FIFRA-regulated chemical could not be controlling
on whether a CWA permit is required, because it does not account for location-specific
requirements. The court reversed the district court’s grant of summary judgment in favor of the
defendants.7
Several of the states within the Ninth Circuit subsequently took actions to respond to this ruling.
California and Washington amended their water quality program rules to require NPDES permits
6 In view of the Supreme Court’s June 2006 decision in Rapanos v. United States (547 U.S. 715, 2006), coverage of
irrigation canals as “waters of the United States” may depend on case-specific circumstances, because the Court’s
plurality opinion in this case made specific reference to Headwaters, Inc. v. Talent Irrigation District. For additional
information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond,
by Robert Meltz and Claudia Copeland.
7 Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001).
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for pesticide applicators. Oregon did not mandate permits, but suggested that pesticide applicators
obtain state-issued permits to protect against lawsuits. Other states outside of the Ninth Circuit
have continued their long-standing practice of not issuing permits to persons who apply pesticides
to waters of the United States.
The second major case in the West involved an annual U.S. Forest Service (USFS) aerial spray
program over national forest lands in Oregon and Washington. Environmental groups filed a
lawsuit challenging the spraying program, saying that the environmental impact statement (EIS)
prepared by the USFS was inadequate and that the Forest Service had failed to obtain a CWA
permit, which they argued is required for this type of aerial spraying. The appeals court reversed
the district court’s grant of summary judgment for the Forest Service and instructed the lower
court to enter an injunction prohibiting the federal agency from further spraying until it acquires
an NPDES permit and completes a revised EIS.8 The court disagreed with the argument of the
Forest Service that the spraying is nonpoint source water pollution, which does not require an
NPDES permit. The court held that the insecticides meet the CWA definition of “pollutant” and
that the application came from an aircraft equipped with spraying apparatus, thus meeting all of
the elements of the CWA’s definition of point source pollution.
In September 2003, the EPA General Counsel issued a legal memorandum to officials in states
located in the Ninth Circuit responding to the Forsgren case. The memorandum said that EPA
disagreed with the court’s holding in the case and that outside the Ninth Circuit, EPA would
continue its long-standing interpretation of FIFRA and the CWA. Within the Ninth Circuit, the
memo said, EPA would not acquiesce to the ruling in the case of materials other than pesticides
(such as those used for fire control), or in circumstances where pesticides are not applied directly
over and into waters of the United States.9
The third Ninth Circuit case involved an effort by the Montana Department of Fish, Wildlife and
Parks to intentionally apply the pesticide antimycin to a river in order to remove non-native trout
species and thus to allow re-introducing a threatened fish species into the river. The director of
the department was sued under the citizen suit provision of the CWA by a citizen who sought to
require the department to obtain an NPDES permit before applying the pesticide.
The court held in this instance that no NPDES permit was required, because the facts of the case
demonstrated that, following application as intended, the antimycin dissipated rapidly, leaving no
excess portions or residual chemical that should be characterized as chemical waste, and thus is
not a pollutant under the act.10 Intentionally applied and properly performing pesticides are not
pollutants, the court said.
The court distinguished this case from its ruling in Headwaters, saying that the factual scenarios
differ, because “in that case the ‘chemical waste’ for which a NPDES permit was required was not
a pesticide serving a beneficial purpose and intentionally applied to water, but was a chemical
that remained in the water after the Magnicide H performed its intended, beneficial function.”11
8 League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002).
9 Robert Fabricant, EPA General Counsel, “Interpretive Statement and Guidance Addressing Effect of Ninth Circuit
Decision in League of Wilderness Defenders v. Forsgren on Application of Pesticides and Fire Retardants,”
memorandum, September 3, 2003, 7 pp.
10 Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005).
11 Ibid. at 1150.
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Further, the court stated that its analysis accords with EPA’s construction of the CWA’s definition
of “chemical waste” in the context of intentionally applied pesticides, and that the agency’s 2003
Interim Statement and Guidance addressing the issue (discussed below) is entitled to some
deference. EPA’s interpretation as presented in that Interim Statement is reasonable and not in
conflict with the expressed intent of Congress, the court said.
The Second Circuit Cases
Two cases in the Second Circuit involved the use of pesticides for mosquito control. In the first
case, several residents of the Town of Amherst, NY, sought to halt aerial application of pesticides
without a CWA permit. The district court initially dismissed the case, stating that spray drift is not
chemical waste under the CWA and that the pesticide use was best regulated under FIFRA. But
the appeals court remanded the case to the district court for further development of the record.12
Although this ruling may not be cited as precedent, it is notable in that, while EPA had filed an
amicus curiae brief providing its views on this particular case, the court invited EPA to offer its
views broadly on the policy and legal questions. The court stated:
Until the EPA articulates a clear interpretation of current law—among other things, whether
properly used pesticides released into or over waters of the United States can trigger the
requirement for NPDES permits ...—the question of whether properly used pesticides can
become pollutants that violate the CWA will remain open. Participation by the EPA in this
litigation in any way that permits articulation of the EPA’s interpretation of the law in this
situation would be of great assistance to the courts.13
The second pertinent case in the Second Circuit also involved the use of pesticides for control of
mosquitoes. Plaintiffs in the case, a citizens group, sought an injunction to halt the aerial and
ground spraying, arguing that although the pesticides were properly regulated under FIFRA, the
spraying program involved the discharge of a pollutant without a CWA permit, and thus was a
violation of that law. A federal district court held that FIFRA-compliant spraying activity did not
amount to the discharge of a pollutant into navigable waters from a point source, and thus did not
violate the CWA. In March 2010, the Second Circuit Court of Appeals disagreed with the district
court’s finding that trucks and helicopters were not “point source,” which are required to have
CWA permits in order to discharge lawfully, but this court held that no permits would be required
for the challenged activities until EPA issues a general permit, as it did in 2011 (see discussion
below, “Options for EPA”).14
Other Litigation
Other lawsuits have followed these cases. For example, private citizens who operate an organic
fruit farm in Gem County, Idaho, brought suit against the local mosquito abatement district there,
seeking to require a CWA permit for pesticide spraying. Finding itself in the proverbial spot
“between a rock and a hard place,” the mosquito abatement district applied for a permit from
EPA, which the agency declined to issue, based on its long-standing policy and legal
interpretation. Thereafter, the mosquito abatement district filed a lawsuit against EPA in an
12 Altman v. Town of Amherst, N.Y., 47 Fed. Appx. 62 (2d Cir. 2002).
13 47 Fed. Appx. at 67.
14 Peconic Baykeeper Inc. v. Suffolk County, 2d Cir., No. 09-97-cv, March 30, 2010.
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attempt to obtain a declaration that a CWA permit is not needed and to avoid the citizen suit
litigation, which is pending in federal court in Idaho. The mosquito abatement district asked the
federal court either for a judgment saying that no permit is required or, if the court were to
determine otherwise, an order directing EPA to process its CWA permit application. In January
2005, the federal district court in the District of Columbia dismissed the case because the
mosquito abatement district and EPA were in agreement that no CWA permit is required for
pesticide applications that are consistent with FIFRA.15
In other locations, citizen groups have given notice, as required by the CWA, of possible lawsuits
to expand the precedent from the Ninth Circuit cases to other types of operations. For example,
two actions were threatened against Maine blueberry farmers for failing to obtain a CWA permit
for spraying pesticides that may drift off-target from land into waterbodies. In response to the
litigation pressure, however, both farmers subsequently announced plans to cease aerial spraying
and instead rely on ground spraying, until such time as government or the courts clarify the law.
EPA’s Regulatory Responses: 2003-2006
The rulings by the Ninth Circuit in the Talent and Forsgren cases and possible endorsement by
other courts greatly alarmed a range of stakeholders in the regulated community, including
forestry, agriculture, and pesticide applicators, as well as municipal and public health officials
concerned with the need to control mosquitoes and other vectors associated with diseases such as
West Nile virus and malaria. They feared that CWA permit requirements would be extended to
agricultural and other activities that have not traditionally been regulated under the CWA. They
argue that if permits tailored to particular circumstances are deemed necessary, such requirements
would present significant costs, operational difficulties, and delays to applicators. They also
would put pressure on limited federal and state CWA permitting resources. In their view,
requiring permits will not be environmentally helpful, but the expense and long delays of
permitting proceedings will hamper programs that are needed for controlling pests that threaten
public health and crops. In response, EPA issued two interpretive guidance documents (in 2003
and 2005) and in 2005 proposed a rulemaking to formalize its long-standing position on CWA-
FIFRA issues. A final rule was promulgated in November 2006 but was vacated by a federal court
in 2009, as discussed below.
EPA Guidance
After the Altman v. Town of Amherst ruling in 2002, industry, states, and others, including some in
Congress, pressed EPA to clarify the emerging conflicts over the two laws. EPA responded with a
guidance document in 2005.16 The agency’s consistent position, expressed in the guidance, was
that pesticides applied in a manner consistent with FIFRA do not constitute either chemical
wastes or biological materials under the definition of pollutant in Section 502(6) of the CWA. The
rationale for this position was that it is consistent with over 30 years of CWA administration. At
the same time, EPA said that pesticide applications in violation of FIFRA, that is, when not used
15 Gem County Mosquito Abatement District v. EPA, 398 F. Supp. 2d 1 (D.D.C. 2005)
16 U.S. Environmental Protection Agency, “Application of Pesticides to Waters of the United States in Compliance
With FIFRA, proposed rulemaking and notice of interpretive statement,” 70 Federal Register 5093, February 1, 2005.
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or applied according to applicable labeling requirements, would be subject to all relevant statutes,
including the Clean Water Act.
Environmental activists strongly objected to EPA’s position in the guidance, which they viewed as
contrary to the judicial rulings. These groups reiterated points made by the Ninth Circuit court in
the Headwaters and Forsgren rulings, namely that chemical and biological pesticides are
pollutants within the meaning of the CWA, because the law defines pollutants broadly and
includes, among other substances, chemical wastes, biological materials, and agricultural wastes.
As that court has declared, environmentalists said, FIFRA does not override the CWA, and the
two statutes must work in tandem to prevent injury to aquatic life. They also argued that EPA was
wrongly deciding that materials with beneficial uses should not be construed as pollutants under
the CWA.
Environmentalists’ objections also went to the policy problems of relying on FIFRA to protect
water quality from pesticide applications, as that would be the result of EPA’s position. That
position, critics said, turns on whether the pesticide application conforms procedurally with
FIFRA requirements, not what is the water quality impact of that pesticide. Other concerns raised
by critics included the fact that while the FIFRA registration process calls for ecological risk
assessment that may be adequate for producing nationally applicable labels, it does not ensure
that local water quality standards are maintained and does not account for additive or synergistic
effects of multiple pollutants discharged to a particular waterbody. Environmentalists argued that
the CWA provides the means to determine whether, and under what conditions, it is safe to
discharge a particular pesticide into a particular body of water, and that FIFRA’s nationally
uniform labeling system cannot do that. FIFRA is not specifically charged with ensuring the
chemical, physical, and biological integrity of U.S. waterways, and satisfaction of a pesticide’s
FIFRA labeling criteria does not automatically satisfy water quality concerns, as the NPDES
permit process is intended to do. They also maintained that FIFRA fails to consider the lasting
effects that pesticide residues have on a local ecosystem and that localized analysis of the
environmental impact of pollutant discharges under the CWA is necessary, due to the toxic
residues that remain after pesticide application, which FIFRA does not address.
Industry welcomed the thrust of the EPA guidance but also urged that it be broadened.
Agricultural groups requested that EPA include other classes of applications under the guidance,
such as aquaculture and crop production. Beyond the types of uses described in the guidance,
some argued that EPA should additionally clarify that CWA permits are not required in the case of
pesticides that are applied over land and then inadvertently impact waterbodies through drift and
migration. Many requested that EPA address the issues definitively in a rulemaking, rather than in
non-binding guidance. In their view, without clear regulatory language supporting EPA’s
interpretation, pesticide applicators would still face the prospect of citizen lawsuits and NPDES
permit requirements.
Many states and local governments, including agriculture agencies, irrigation districts, and
mosquito abatement districts, strongly endorsed EPA’s proposed clarification of its interpretation
of the two laws. However, a few—especially states located in the jurisdiction of the federal Ninth
Circuit—expressed a different view. The Oregon Department of Environmental Quality and
California State Water Resources Control Board commented that the Interim Statement conflicted
with legal precedent in the Headwaters case. They urged EPA, if it wishes to create an exemption
for pesticide applications conducted in compliance with FIFRA, to ask Congress to amend the
Clean Water Act and FIFRA accordingly.
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Regulatory Proposal
At the same time that it issued the 2005 guidance, EPA proposed a rulemaking to codify the
substance of the guidance in CWA regulations, which it promulgated in November 2006.17 The
rule added two specific circumstances that would be excluded from NPDES permit requirements,
when the application complies with relevant requirements of FIFRA:
• the application of pesticides directly to waters of the United States in order to
control pests (e.g., to control mosquito larvae or aquatic weeds); and
• the application of pesticides to control pests that are present over waters of the
United States, including near such waters, where a portion of the pesticides will
unavoidably be deposited to waters of the United States in order to target the
pests effectively.
In the rule, EPA provided a lengthy discussion of its rationale that pesticides, when applied
pursuant to FIFRA, are not chemical wastes or biological materials and thus are not what the
CWA defines as “pollutants” (see discussion, page 3). However, EPA also acknowledged that
application of pesticides may leave residual materials in U.S. waters after the product has served
its beneficial purpose and that these residual materials may be “pollutants” under the act at that
later time. Nonetheless, even in such cases, EPA said, the initial application of the pesticide does
not require an NPDES permit because EPA does not consider it to be a pollutant at the time of its
discharge into water.18 The agency also responded to some public comments that had criticized
the adequacy of FIFRA’s registration process for consideration of water quality, local conditions,
etc. EPA said that the “regulatory and non-regulatory tools under FIFRA provide means of
addressing water quality problems arising from the use of pesticides,” particularly the registration
and re-registration processes, which consider both human health and aquatic resource impacts.19
Judicial Challenge to the EPA Rule
The 2006 rule prompted multiple lawsuits by industry and environmental groups in almost every
judicial circuit nationwide. The litigation was consolidated in the Sixth Circuit Court of Appeals.
Industry’s challenge argued that the rule was arbitrary and capricious because it treated pesticides
applied in violation of FIFRA as pollutants, while treating the same pesticides used in compliance
with FIFRA as non-pollutants. It also sought to expand the rule to apply to all pesticides and all
agricultural applications of pesticides, including applications to land that drift over or into water.
Environmentalists’ challenge claimed that, by exempting FIFRA-compliant applications of
pesticides from CWA requirements, EPA ignored its duties under the Clean Water Act.
The court’s ruling was issued January 7, 2009.20 EPA had argued that at the time of discharge, a
pesticide is a non-pollutant. Excess pesticide or pesticide residues do not exist until after the
discharge is complete, EPA said, and therefore should be treated as nonpoint source pollutants
that do not require CWA permits. The court rejected EPA’s attempt to “inject[] a temporal
17 U.S. Environmental Protection Agency, “Application of Pesticides to Waters of the United States in Compliance
With FIFRA,” Final Rule, 71 Federal Register 68483, November 27, 2006.
18 Id. at 68487.
19 Id. at 68488-68489.
20 National Cotton Council of America v. U.S. Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009).
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requirement to the ‘discharge of a pollutant,’” and it said that such an interpretation is
unsupported by the CWA, and is also contrary to the purpose of the permitting program. The
court said, “If the EPA’s interpretation were allowed to stand, discharges that are innocuous at the
time they are made but extremely harmful at a later point would not be subject to the permitting
program.” It concluded that “there is no room for the EPA’s argument that residual and excess
pesticides do not require an NPDES permit,” and the court thus vacated the rule. The vacatur was
scheduled to take effect April 9, 2009, but subsequently the Sixth Circuit granted the
government’s request to delay the effective date of the ruling for two years, so that EPA could
develop a regulatory response, as discussed below. In the meantime, the rule remains in effect.21
In February 2010, the Supreme Court declined to review the Sixth Circuit’s ruling.
Initial Congressional Interest and Options
Congressional interest in these issues became apparent after the first federal appeals court ruling
in the 2001 Headwaters v. Talent ruling. Two congressional hearings focused on implications of
the cases for pesticide use generally and for local governments’ efforts to control mosquito-borne
illnesses such as West Nile Virus. Also, a hearing also was held on legislation introduced in the
109th Congress to clarify the scope of the CWA regarding the use of FIFRA-approved pesticides,
fire retardants, and biological control organisms.
The first of these hearings was in October 2002, when a House Transportation and Infrastructure
subcommittee held a fact-finding hearing on the issues.22 The subcommittee’s particular concern
derived in part from the fact that one of the key practices used to manage stormwater runoff,
which is regulated under the Clean Water Act, is to collect and hold it in retention ponds, basins,
drainage ditches, etc. Such practices can be at odds with the public health objective of controlling
insect-breeding habitat by eliminating or draining sources of standing water. Stormwater
management practices typically allow collected water to drain slowly, while public health efforts
would prefer that it be removed quickly. Another way to address the public health concerns is to
spray pesticides on stormwater management structures and other areas of standing waters. The
question for this subcommittee was the uncertainty raised by the litigation over the CWA-FIFRA
issues for communities, industries, and others needing to maintain stormwater control systems.
An EPA official, while acknowledging that the issue of CWA jurisdiction over pesticide spraying
is “new territory” for the agency, said that EPA believed there is no inherent conflict between
protecting water quality and preventing mosquito-borne disease. At the hearing, some Members
and witnesses urged EPA to provide guidance to resolve uncertainties raised by the court rulings.
The second congressional hearing, held by a House Government Reform subcommittee in
October 2004, examined challenges to controlling West Nile Virus.23 The hearing was an
21 On June 27, 2013, EPA promulgated a rule to remove the NPDES permit exemption, vacated by the Sixth Circuit in
2009, from CWA regulations. U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination
system Regulation Revision: Removal of the Pesticide Discharge Permitting Exemption in Response to Sixth Circuit
Court of Appeals Decision, Final Rule,” 78 Federal Register 38591-38594, June 27, 2013.
22 U.S. Congress, House, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and
Environment, “West Nile Virus: The Clean Water Act and Mosquito Control,” Hearing, October 10, 2002, 107th Cong.,
2nd sess., unpublished.
23 U.S. Congress, House, Committee on Government Reform, Subcommittee on Energy Policy, Natural Resources and
Regulatory Affairs, “Current Challenges in Controlling the West Nile Virus,” Hearing, October 6, 2004, 108th Cong.,
(continued...)
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opportunity for some Members and witnesses to express the view that EPA’s July 2003 interim
guidance, while helpful in clarifying EPA’s position, failed to resolve all legal uncertainty, since it
would not bind non-federal entities or bar citizen lawsuits. Witnesses said that EPA’s guidance is
a nonbinding legal document that would not deter filing of citizen lawsuits seeking to impose a
permit requirement. Supporters of this view urged EPA to settle the legal questions through a
formal rulemaking to revise CWA rules. An EPA official said that even if EPA were to promulgate
a rule (as it subsequently did), states will still have the discretion to continue to require non-
NPDES permits, and a formal rule would not preclude citizen lawsuits from seeking to force
localities to file for permits. EPA acknowledged these same points in the 2005 guidance. Others at
this hearing agreed on the need for a formal rulemaking, but recommended that in doing so, EPA
should reverse the interpretation detailed in the guidance, not codify it.
In the 108th Congress, Senate appropriators included language in their report on EPA’s FY2005
funding bill calling on EPA to finalize the interim guidance by December 2004 and to clarify the
long-standing distinction between agriculture and silviculture activities that do and do not require
CWA permits.24
In 2003, a number of House and Senate Members urged the Bush Administration to support
Supreme Court review of the Forsgren case, but ultimately the Administration did not endorse
industry’s request for a review, and the Court did not grant certiorari. Some Members of Congress
also submitted comments in support of the July 2003 interim guidance document and the January
2005 regulatory proposal.
Options for EPA
As described above, in January 2009, the U.S. Sixth Circuit Court of Appeals rejected EPA’s
rationale for its 2006 rule that attempted to specify circumstances in which pesticides applied to
waters of the United States do not require NPDES permits. The court appeared to leave little
room for EPA to fashion a new rule consistent with the agency’s long-standing view that FIFRA-
compliant applications do not require CWA permits. Agriculture industry groups were fearful that
the court’s ruling would lead to permit requirements for each pesticide application, placing
significant burdens on industry and EPA. Accordingly, several industry groups (the American
Farm Bureau Federation, American Forest and Paper Association, and CropLife America, the
trade organization for agriculture and pest management) petitioned for a rehearing of the case by
the full Sixth Circuit court, but the rehearing request was rejected.
The federal government did not seek a rehearing of the case. Instead, the government petitioned
the court for a two-year stay of the order vacating the exemption, to give EPA time to work with
states and the regulated community to develop a general permit for pesticide applications covered
by the decision. State water pollution agencies supported the government’s request for the two-
year delay, which the court granted.
(...continued)
2nd sess. (Serial No. 108-274), 182 p.
24 U.S. Senate, Committee on Appropriations, “Departments of Veterans Affairs and Housing and Urban Development,
and Independent Agencies Appropriations Bill, 2005,” report to accompany S. 2825, 108th Cong., 2nd sess., pp. 110-
111.
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EPA’s Pesticide General Permit
The two basic types of NPDES permits are individual permits that are specifically tailored for an
individual discharger, and general permits that cover categories of point sources having common
elements and that discharge the same types of wastes. General permits allow the permitting
authority to allocate resources efficiently, especially when there is potentially a large number of
permittees, and to provide timely permit coverage. Both individual and general permits are
enforceable by the permitting authority and by private citizens (in federal court).
EPA uses its authority to issue NPDES general permits frequently, such as a general permit to
cover discharges incidental to the normal operation of vessels (Vessel General Permit, or VGP)
that applies to approximately 69,000 vessels.25 Typically, dischargers seeking coverage under a
general permit are required to submit a notice of intent to be covered by the permit, but this can
be modified. For example, in the VGP, EPA provided automatic coverage for about 20,000 of the
covered vessels. Still, even with general permits, development and implementation issues arise,
including how EPA specifies applicable discharge limits based on technology available to treat
pollutant constituents found in the discharge (i.e., effluent limits), and limits that are protective of
the designated uses of the impacted water (i.e., water quality-based effluent limits), as required by
the CWA.
EPA issued the pesticide general permit on October 31, 2011, as required by the federal court.26
EPA estimates that the universe of activities affected by the court’s ruling is approximately 5.6
million applications annually, which are performed by 365,000 applicators, including mosquito
and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal
control, and forest canopy pest control. The permit covers about 500 different pesticide active
ingredients that are contained in approximately 3,700 product labels.
The permit applies to a variety of entities, including agricultural interests involved in crop and
timber tract production, forest nurseries, and operating irrigation systems; pesticide and
agricultural chemical manufacturing; mosquito or other vector control districts and commercial
applicators that service them; utilities (e.g., electric power, natural gas, water supply and
wastewater); and government agencies and departments engaged in air and water resource
management and conservation. It requires all operators to minimize pesticide discharges to waters
by practices such as using the lowest effect amount of pesticide product that is optimal for
controlling the target pest. It also requires operators to prepare pesticide discharge management
plans to document their pest management practices. Permittees must monitor for observable
adverse effects in the treatment area and where the pesticides are discharged to U.S. waters.
The permit does not cover agricultural stormwater runoff or irrigation return flow, as these
discharges are statutorily exempt from CWA permitting, and it also does not cover terrestrial
application to control pests on agricultural crops or forest floors (i.e., it would not apply to
pesticide applications that do not result in a discharge to U.S. waters). The EPA general permit
25 For information on this general permit, see CRS Report R42142, EPA’s Vessel General Permits: Background and
Issues, by Claudia Copeland.
26 U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) Pesticide
General Permit for Point Source Discharges From the Application of Pesticides; Notice of final permit,” 76 Federal
Register 68750-68756, November 7, 2011.
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applies in states and areas where EPA is the NPDES permitting authority, but it is being used as a
model for other states to develop their own general permits.27
Issuance of the final permit was delayed several times and for several reasons: time needed to
complete consultations with federal resource agencies under the Endangered Species Act (ESA);
time needed for non-federal permitting authorities to review the final permit; and time needed by
EPA to develop an electronic system on the Internet to accommodate permit applications.
In response to a number of commenters, EPA made certain changes in the final permit from the
June 2010 proposal. While it covers the same pesticide use patterns as in the draft (mosquitoes
and other flying insects, weed and algae control, animal pest control, and forest canopy pest
control), the final permit increases the acreage threshold for requirements to submit a NOI to a
permitting authority. For example, the draft stated that pesticides used to control mosquitoes or
other flying insect pests would be subject to the NOI requirement if applied to 640 acres or more
annually. Under the final permit, that threshold was increased to 6,400 acres per calendar year.
The final permit includes Endangered Species Act (ESA) provisions, following consultation with
the National Oceanic and Atmospheric Administration (NOAA) Fisheries Service. As a result,
coverage under the permit is available only for discharges not likely to adversely affect species
that are listed as endangered or threatened under the ESA.28
Other EPA Options
One issue that EPA could address separately, in addition to developing a general NPDES permit,
is pesticide drift, that is, pesticide particles and droplets that migrate from the application area,
which can affect people’s health and the environment, as well as damage nearby crops. The
Federal Register Notice accompanying the 2006 rule had noted that, at the time, EPA was
awaiting advice from a workgroup of its Pesticide Program Dialogue Committee, which could
recommend further actions. This committee was established in 1995 as a forum to provide
feedback to EPA on various pesticide regulatory, policy, and program implementation issues. It is
authorized pursuant to the Federal Advisory Committee Act (FACA), which details requirements
for the management and oversight of federal advisory committees to ensure impartial and relevant
expertise and advice to EPA and other agencies. In 2006, the committee convened a Spray Drift
Workgroup charged with studying the issue of pesticide drift across water and its accompanying
impact on water quality and wildlife. The following year, the workgroup finalized a report that
focused on issues related to product labeling, applicator training, and practices and equipment to
mitigate drift and adverse effects. In 2009, EPA proposed new pesticide labels to reduce the
drifting of spray and dust from pesticide applications. The agency also has proposed several
guidance documents addressing pesticide spray drift, including guidance for pesticide labeling
and guidance on how off-site spray drift will be evaluated for ecological, drinking water, and
human health risk assessments. In 2014, EPA announced a voluntary Drift Reduction Technology
program under which manufacturers of spraying devices may conduct studies of their products to
27 The CWA authorizes EPA to delegate NPDES permitting authority to qualified states, and EPA has done so for the
majority of states. For this permit, EPA is the permitting authority in Massachusetts, New Mexico, New Hampshire,
Oklahoma, Alaska, Idaho, and the District of Columbia; Indian lands in a number of states; and all U.S. territories
except the Virgin Islands.
28 For information, see CRS Report RL31654, The Endangered Species Act: A Primer, by M. Lynne Corn and Kristina
Alexander.
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see how much drift they prevent. EPA will then assign a rating, based on how much spray drift is
reduced by the device.
Other options for EPA relate to implementation of FIFRA and procedures used to evaluate the
risks of pesticides during the registration process. Environmentalists have argued for some time
that EPA’s risk review procedures are inadequate because they fail to account for synergistic and
additive effects, as well as sub-lethal and indirect effects of pollutants on the environment. In
2003, EPA convened a task force of officials from its pesticide and water quality offices to
explore, among other things, whether the agency’s pesticide review processes are protective
enough to meet water quality standard limits. One outcome of the task force’s review could be
changes to implementation of FIFRA in order to address some of these concerns. Subsequently,
EPA officials held a series of regional meetings with state pesticide and water quality agencies
and other stakeholders and announced plans to complete a series of white papers on how to
harmonize methods used by the agency’s Office of Water and the Office of Pesticide Programs for
ecological assessment of pesticide chemicals’ water quality risks. The white papers are intended
to address what officials acknowledge is a gap between the way the CWA and FIFRA approach
pesticide risk and to support a consistent and common set of effects characterization methods
using best available information.
Congressional Activity
Prior to the 2009 federal court ruling that vacated EPA’s rule, some environmental activists
favored legislation to clarify that NPDES permits are required, since they contended that the rule
was unlawful. However, no such legislation was introduced. Others argued during this time that
legislation is not needed because, in their view, the CWA is clear enough that permits are required
for discharge of pesticides from point sources. The federal court’s review of the EPA rule supports
that view. But, following the court’s ruling, other stakeholders came to favor legislation to
support a narrow view of the CWA’s jurisdiction on this issue. Although many acknowledge that
any such legislative effort would be controversial and could be seen as representing not
clarification but, rather, an environmental rollback, lawmakers in the House and Senate have
repeatedly attempted to pass such a bill.
Legislation intended to clarify that permits are not required for some or all pesticide spraying
activity was first introduced in the 109th Congress (H.R. 1749 and S. 1269, the Pest Management
and Fire Suppression Flexibility Act). These bills would have provided that NPDES permits are
not required for the use of FIFRA-approved pesticides; chemicals, fire retardants, or water used
for fire suppression; biological organisms used for plant pest or weed control; or silviculture
activities such as timber harvesting that are not currently regulated as point source activities.
As discussed above, EPA’s 2006 rule (although subsequently vacated by a federal court)
addressed situations in which pesticides are put directly in waters to control pests (e.g.,
controlling mosquito larvae or aquatic weeds) or cases of pesticides that are present over water
and a portion of the pesticide is deposited in the water (e.g., aerial application to a forest canopy
where waters of the United States may be present below the canopy) and excluded these
situations from requiring a CWA permit. The proposed legislation in the 109th Congress, in
addition to codifying these policies, also would have addressed other, broader circumstances that
EPA had declined to include in the rule: applications over land areas that may drift over and into
waters of the United States, broad exemption of activities for preventing or controlling plant pests
or noxious weeds, and use of fire retardants.
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In 2005, a House Transportation and Infrastructure subcommittee held a hearing on H.R. 1749.29
Witnesses representing a number of sectors that are pesticide users (state foresters, western
irrigation districts, and farmers) testified in support of the legislation, saying that it would resolve
existing legal uncertainties about permitting. An EPA witness said that the agency’s then-
proposed rulemaking was intended to reduce uncertainty about the relationship between FIFRA
and the CWA. The EPA official did not expressly endorse the legislation, but he said that EPA
appreciated congressional efforts to reduce potential confusion over these issues. There was no
further action on either H.R. 1749 or S. 1269 during the 109th Congress, and no similar bills were
introduced in the 110th Congress.
Legislation on this issue was introduced in the 111th Congress. One proposal was contained in
identical bills, S. 3735 and H.R. 6087. The intention of the these bills was similar to that of the
earlier bills—to clarify permitting requirements under other laws and, effectively, to nullify the
2009 federal court ruling—but the 111th Congress legislation differed in several respects. First, it
would have amended FIFRA, while the earlier bills would have amended the CWA. Second, the
bills would not expressly have exempted chemicals, fire retardants, water used for fire
suppression, or specified silviculture activities from permit requirements. Third, S. 3735 and H.R.
6087 were broader in their potential application. The earlier bills were limited to exempting
FIFRA-authorized activities from CWA permits, but the 111th Congress legislation would have
exempted FIFRA-authorized activities from permits required by other federal environmental laws
(including the CWA), other federal non-environmental permits or licenses, as well as state or
local laws and ordinances. Pursuant to authority in FIFRA, many state and local governments
control pesticide application within their jurisdictions by employing permitting systems to restrict
aerial application of pesticides, or by imposing notice-and-posting requirements.
Another bill in the 111th Congress was H.R. 6273. This bill also was intended to nullify the 2009
federal court ruling, but it was narrower in scope than the other two measures. It would have
amended both FIFRA and the CWA to provide that a CWA permit shall not be required by EPA,
nor shall EPA require a state to require a permit, for the application of any pesticide that is subject
to FIFRA if it is applied in conformance with that act.
112th and 113th Congresses
Attention to these issues resumed in the 112th Congress, because the PGP has remained
controversial. Critics continue to argue that requirements of CWA and FIFRA are duplicative,
although others disagree, saying that the purposes and approaches of the two laws differ greatly
(see discussion of “The Laws” above). Even as they are beginning to implement permit
requirements for pesticide discharges, water quality officials in some states have said that they see
little water quality benefit from the permit. Despite EPA’s contention that many farms are not
affected by the National Cotton Council ruling and do not need CWA permits for their pesticide
applications,30 the PGP has been particularly controversial in the agriculture community.
29 U.S. Congress, House, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and
Environment, “Hearing, ‘H.R. 1749, Pest Management and Fire Suppression Flexibility Act,’” 109th Cong., 1st sess.,
September 29, 2005 (109-33), 110 pp.
30 U.S. Environmental Protection Agency, “Information on the Pesticide General Permit for Agricultural Stakeholders,”
December 2011, http://www.epa.gov/npdes/pubs/pgp_agfactsheet.pdf.
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At a joint hearing of subcommittees of the House Agriculture and Transportation and
Infrastructure committees in February 2011, draft legislation to overturn the National Cotton
Council ruling was discussed. Subsequently introduced as H.R. 872, the bill would amend FIFRA
and the CWA to provide that neither EPA nor a state may require a CWA permit for discharge of a
pesticide whose use has been authorized pursuant to FIFRA. The bill defined specified
circumstances where a permit would be required (e.g., municipal or industrial treatment works
effluent that contains pesticide or pesticide residue). At the hearing, some Members indicated that
the bill had been drafted with EPA’s technical assistance, but the Administration’s official position
on H.R. 872 was unknown.
The House passed H.R. 872 on March 31, 2011, by a vote of 292-130. The Senate Committee on
Agriculture, Nutrition, and Forestry approved the bill without amendment in June 2011. The text
of H.R. 872 also was included as a provision of H.R. 2584, a bill providing FY2012
appropriations for EPA, which the House debated in July 2011, without taking final action.
Related bills in the 112th Congress included S. 3605 (similar to H.R. 872, with the addition of a
report to Congress on effectiveness of regulatory actions related to pesticide registration and
protecting water quality) and S. 718 (a bill to amend only FIFRA to clarify that, notwithstanding
any other law, no permit shall be required for use of a FIFRA-registered pesticide or organisms or
practices covered by the Plant Protection Act).
In July 2012, the House Agriculture Committee ordered reported the 2012 farm bill (H.R. 6083,
the Federal Agriculture Reform and Risk Management Act). A provision identical to House-
passed H.R. 872 was included in the legislation. The Senate had previously passed its version of a
2012 farm bill (S. 3240); it did not include a similar provision. The 112th Congress did not take
final action on comprehensive farm bill legislation.
Legislation to nullify the 2009 federal court ruling also was introduced in the 113th Congress
(H.R. 935, similar to H.R. 872 in the 112th Congress; S. 175, similar to S. 718 in the 112th
Congress; and S. 802, similar to S. 3605 in the 112th Congress). The House passed H.R. 935 on
July 31, by a vote of 267-161.
In addition, a provision similar to H.R. 935 was included in farm bill legislation approved by the
House in June 2013 (H.R. 2642). However, the Senate-passed version of farm bill renewal
legislation (S. 954) did not include a similar provision. The 2014 farm bill, enacted in February
2014 (the Agricultural Act of 2014, P.L. 113-79), also did not include a provision to overturn the
Sixth Circuit ruling.
114th Congress
The PGP requirements have been in place for nearly four years. In March 2015, an EPA official
stated during congressional testimony that the agency is not aware of any issues with the permit
or of any instances of individuals not being able to apply a pesticide in a timely manner. Further,
EPA is not aware of any active litigation in connection with the PGP.
Nevertheless, it remains controversial. Critics of the permit continue to argue that its CWA
requirements are duplicative of FIFRA and burdensome, while supporters of the permit respond
that the two laws are different because the CWA allows evaluation of pesticides’ impacts on
localized waterbodies, while FIFRA makes more generalized determination of impacts on human
health and environmental risk.
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In the 114th Congress, legislation similar to bills passed by the House in the 112th and 113th
Congresses to overturn requirements for the PGP has been introduced. One bill, H.R. 897, was
approved by the House Agriculture Committee on March 19. It has not yet been marked up by the
House Transportation and Infrastructure Committee. In the Senate, the Environment and Public
Works Committee approved S. 1500 on August 5. Like the House legislation, this bill would
clarify congressional intent regarding the regulation of the use of pesticides in or near U.S.
waters. The Senate bill also would require EPA to report to Congress on better coordination of
efforts by the agency’s water quality and pesticides offices in order to analyze the water quality
impacts of pesticides and the effectiveness of current pesticide registration actions at protecting
water quality.
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
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