[House Report 112-43]
[From the U.S. Government Publishing Office]


112th Congress  }                                       {  Rept. 112-43
  1st Session   }         HOUSE OF REPRESENTATIVES      {        Part 1
=======================================================================
 
                REDUCING REGULATORY BURDENS ACT OF 2011 

                                _______
                                

 March 29, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Mica, from the Committee on Transportation and Infrastructure, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 872]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 872) to amend the Federal 
Insecticide, Fungicide, and Rodenticide Act and the Federal 
Water Pollution Control Act to clarify Congressional intent 
regarding the regulation of the use of pesticides in or near 
navigable waters, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose of the Legislation and Summary...........................     2
Background and Need for the Legislation..........................     2
Legislative History..............................................     7
Hearings.........................................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................    10
Cost of Legislation..............................................    10
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Performance Goals and Objectives.................................    11
Advisory of Earmarks.............................................    11
Federal Mandates Statement.......................................    11
Preemption Clarification.........................................    11
Advisory Committee Statement.....................................    12
Applicability to the Legislative Branch..........................    12
Section-by-Section Analysis of the Legislation...................    12
Changes in Existing Law Made by the Bill, as Reported............    15

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Reducing Regulatory Burdens Act of 
2011''.

SEC. 2. USE OF REGISTERED PESTICIDES.

  Section 3(f) of the Federal Insecticide, Fungicide, and Rodenticide 
Act (7 U.S.C. 136a(f)) is amended by adding at the end the following:
         ``(5) Use of registered pesticides.--Except as provided in 
        section 402(s) of the Federal Water Pollution Control Act, the 
        Administrator or a State may not require a permit under such 
        Act for a discharge from a point source into navigable waters 
        of a pesticide registered under this Act, or the residue of 
        such a pesticide, resulting from the application of such 
        pesticide.''.

SEC. 3. DISCHARGES OF PESTICIDES.

  Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 
1342) is amended by adding at the end the following:
 ``(s) Discharges of Pesticides.--
         ``(1) No permit requirement.--Except as provided in paragraph 
        (2), a permit shall not be required by the Administrator or a 
        State under this Act for a discharge from a point source into 
        navigable waters of a pesticide authorized for sale, 
        distribution, or use under the Federal Insecticide, Fungicide, 
        and Rodenticide Act, or the residue of such a pesticide, 
        resulting from the application of such pesticide.
         ``(2) Exceptions.--Paragraph (1) shall not apply to the 
        following discharges containing a pesticide or pesticide 
        residue:
                 ``(A) A discharge resulting from the application of a 
                pesticide in violation of a provision of the Federal 
                Insecticide, Fungicide, and Rodenticide Act that is 
                relevant to protecting water quality, if--
                         ``(i) the discharge would not have occurred 
                        but for the violation; or
                         ``(ii) the amount of pesticide or pesticide 
                        residue contained in the discharge is greater 
                        than would have occurred without the violation.
                 ``(B) Stormwater discharges regulated under subsection 
                (p).
                 ``(C) The following discharges regulated under this 
                section:
                         ``(i) Manufacturing or industrial effluent.
                         ``(ii) Treatment works effluent.
                         ``(iii) Discharges incidental to the normal 
                        operation of a vessel, including a discharge 
                        resulting from ballasting operations or vessel 
                        biofouling prevention.''.

                 Purpose of the Legislation and Summary

    The Reducing Regulatory Burdens Act of 2011, H.R. 872, 
amends the Federal Insecticide, Fungicide, and Rodenticide Act 
and the Federal Water Pollution Control Act to clarify 
Congressional intent regarding the regulation of the use of 
pesticides in or near navigable waters.

                Background and Need for the Legislation


The Federal Insecticide, Fungicide, and Rodenticide Act

    The Federal Insecticide, Fungicide, and Rodenticide Act 
(``FIFRA'') is a regulatory statute that governs the sale and 
use of pesticides in the United States through the registration 
and labeling of such products. Its objective is to protect 
human health and the environment from unreasonable adverse 
effects of pesticides, taking into account the costs and 
benefits of various product uses. Pesticides regulated under 
FIFRA include insecticides, herbicides, fungicides, 
rodenticides, and other designated substances. The 
Environmental Protection Agency (``EPA'') reviews scientific 
data submitted by chemical manufacturers on toxicity and 
behavior in the environment to evaluate risks and exposure 
associated with a product's use.
    FIFRA prohibits the sale of any pesticide unless it is 
registered and labeled indicating approved uses and 
restrictions. It is a violation of Federal law to use such a 
chemical in a manner that is inconsistent with the label 
instructions. If a registration is granted, EPA makes a finding 
that the chemical ``when used in accordance with widespread and 
commonly recognized practice it will not generally cause 
unreasonable adverse effects on the environment.'' (7 U.S.C. 
136a(c)(5)(D)) EPA then specifies the approved uses and 
conditions of use of the pesticide, and this is required to be 
explained on the product label.

The Clean Water Act

    The objective of the Federal Water Pollution Control Act 
(commonly known as the ``Clean Water Act'' or the ``CWA'') is 
to restore and maintain the chemical, physical, and biological 
integrity of the nation's waters. The primary mechanism for 
achieving this objective is the CWA's prohibition on the 
discharge of any pollutant without a National Pollutant 
Discharge Elimination System (``NPDES'') permit. EPA has the 
authority to regulate the discharge of pollutants either 
through general permits or through individual permits. NPDES 
permits specify limits on what pollutants may be discharged 
from point sources and in what amounts. Under the CWA, 47 
states and territories have been authorized to implement NPDES 
permits and enforce permits. EPA manages the Clean Water Act 
program in the remaining states and territories.
    NPDES permits are the basic regulatory tool of the CWA. EPA 
or an authorized state may issue compliance orders, or file 
civil suits against those who violate the terms of a permit. In 
addition, in the absence of Federal or state action, 
individuals may bring a citizen suit in United States district 
court against those who violate the terms of an NPDES permit, 
or against those who discharge without a valid permit.

Litigation

    In over 30 years of administering the CWA, EPA had never 
required an NPDES permit for the application of a pesticide, 
when the pesticide is applied in a manner consistent with FIFRA 
and its regulations. While the CWA contains a provision 
granting citizen suits against those who violate permit 
conditions or those who discharge without an NPDES permit, 
FIFRA has no citizen suit provision. As a result, beginning in 
the late 1990s, a series of citizen lawsuits were filed by 
parties, contending that an NPDES permit is necessary when 
applying a FIFRA-regulated product over, into, or near 
waterbodies. These cases generated several Court of Appeals 
decisions that created confusion and concern among pesticide 
users regarding the applicability of the CWA with regard to 
pesticide use.
    As the litigation continued, concern and confusion grew 
among farmers, forest landowners, and public health officials, 
prompting EPA to issue interim, and later final, interpretive 
guidance in August 2003 and January 2005, and then to undertake 
a rulemaking to clarify and formalize the Agency's 
interpretation of the CWA as it applied to pesticide use. The 
EPA rule was finalized in November 2006 (71 Fed. Reg. 68483 
(Nov. 27, 2006)), and was the culmination of a three year 
participatory rulemaking process that began with the interim 
interpretive statement in 2003 and involved two rounds of 
public comment.
    The 2006 EPA rule codified EPA's long-standing 
interpretation that the application of chemical and biological 
pesticides for their intended purpose and in compliance with 
pesticide label restrictions is not a discharge of a 
``pollutant'' under the CWA, and therefore, that an NPDES 
permit is not required. The rule clearly defined specific 
circumstances in which the use of pesticides in accordance with 
all relevant requirements under FIFRA is not a CWA ``discharge 
of a pollutant,'' explaining in detail the rationale for the 
Agency's interpretation.
    When the rule was finalized, environmental groups, as well 
as farm and pesticide industry groups, filed petitions for 
review of the rule in several Federal Circuit Courts of Appeal. 
The petitions were consolidated in the Sixth Circuit. The Sixth 
Circuit ultimately vacated the rule on January 7, 2009 in 
National Cotton Council v. EPA (553 F.3d 927; hereinafter, 
National Cotton Council), concluding that the final rule was 
not a reasonable interpretation of the CWA's permitting 
requirements. The court rejected EPA's contention that, when 
pesticides are applied over, into, or near waterbodies to 
control pests, they are not considered pollutants as long as 
they comply with FIFRA, and held that NPDES permits are 
required for all pesticide applications that may leave a 
residue in water.
    EPA estimated that the ruling would affect approximately 
365,000 pesticide applicators that perform some 5.6 million 
pesticide applications annually. The court's decision, which 
would apply nationally, was to be effective seven days after 
the deadline for rehearing expires or seven days after a denial 
of any petition for rehearing. Parties had until April 9, 2009 
to seek rehearing.
    On April 9, 2009, the government chose not to seek 
rehearing in the National Cotton Council case. The government 
instead filed a motion to stay issuance of the court's mandate 
for two years to provide EPA time to develop an entirely new 
NPDES permitting process to cover pesticide use. As part of 
this, EPA needed to propose and issue a final NPDES general 
permit for pesticide applications, for states to develop 
permits, and for EPA to provide outreach and education to the 
regulated community. Industry groups filed a petition seeking 
en banc review, asking the full Sixth Circuit to reconsider the 
decision from the three-judge panel.
    On June 8, 2009, the Sixth Circuit granted EPA a two-year 
stay of the court's mandate, in response to their earlier 
request. The Sixth Circuit denied the industry groups' petition 
for rehearing in August 2009. The court-ordered deadline for 
EPA to promulgate a new permitting process for pesticides under 
the Clean Water Act is April 9, 2011. On March 3, 2011, EPA 
filed another request for an extension with the court. On March 
28, 2011, the Sixth Circuit granted an extension through 
October 31, 2011. The court order to vacate the rule remains in 
place. The Court's extension only temporarily postpones the 
need for an NPDES permit for pesticide use, and does not 
obviate the need for this legislation.
    Two petitions were filed with the U.S. Supreme Court in 
December 2009 by representatives of the agriculture community 
and the pesticide industry, requesting that the U.S. Supreme 
Court review the National Cotton Council case. A number of 
parties, including numerous Members of Congress, filed amicus 
briefs with the U.S. Supreme Court, in support of or opposition 
to the petitions. On February 22, 2010, the U.S. Supreme Court 
denied the petitioners' request without comment.

EPA development of a new permitting process to cover pesticide use

    With a two-year stay of the Sixth Circuit's mandate in 
place, EPA continues to move ahead with developing a new NPDES 
permitting process to cover pesticide use. The permit covers 
four pesticide uses: (1) mosquito and other flying insect pest 
control; (2) aquatic weed and algae control; (3) aquatic 
nuisance animal control; and (4) forest canopy pest control. It 
does not cover terrestrial applications to control pests on 
agricultural crops or forest floors, and does not cover 
activities exempt from permitting under the CWA (irrigation 
return flow, agricultural stormwater runoff) and discharges 
that will require coverage under an individual permit, such as 
discharges of pesticides to waterbodies that are considered 
impaired under CWA Sec. 303(d) for that discharged pesticide.

Implications

    The Committee has received testimony and other information 
on the implications of the Sixth Circuit's holding in the 
National Cotton Council case, and the new permitting process 
that EPA has to develop under the CWA as a result of that 
holding, on state and local agencies, mosquito control 
districts, water districts, pesticide applicators, agriculture, 
forest managers, and other stakeholders. On February 16, 2011, 
the Subcommittee on Water Resources and Environment of the 
House Committee on Transportation and Infrastructure held a 
joint hearing with the Nutrition and Horticulture Subcommittee 
of the House Committee on Agriculture to consider means for 
reducing the regulatory burdens posed by the case, National 
Cotton Council v. EPA (6th Cir. 2009), and to consider related 
draft legislation.
    Despite being limited to four categories of pesticide uses, 
EPA's new general permit for covered pesticides stands to be 
the single greatest expansion of the permitting process in the 
history of the NPDES program. EPA has estimated that it can 
expect approximately 5.6 million covered pesticide applications 
per year by approximately 365,000 applicators--virtually 
doubling the number of entities currently subject to NPDES 
permitting. (U.S. EPA, Fact Sheet for 2010 Public Notice of: 
Draft National Pollutant Discharge Elimination System (NPDES) 
Pesticides General Permit (PGP) for Discharges from the 
Application of Pesticides to or over, including near Waters of 
the U.S., at 14, available at http://www.epa.gov/npdes/pubs/
proposed_pgp_fs.pdf.)
    With this unprecedented expansion comes real and tangible 
burdens, for EPA, the states that will have to issue the 
permits, those whose livelihoods depend on the use of 
pesticides, and even everyday citizens going about their daily 
lives.
    EPA has said that it will be able to conform its current 
process to meet the Sixth Circuit's mandate. Even so, much of 
the responsibility of developing and issuing general permits 
falls on the states. Forty-five states (and the Virgin Islands) 
will face increased financial and administrative burdens in 
order to comply with the new permitting process. In a time when 
too many states are being forced to make difficult budgetary 
cuts, the nation cannot afford to impose more financial 
burdens.
    The expanded permitting process also imposes enormous 
burdens on pesticide users who encompass a wide range of 
individuals from state agencies, city and county 
municipalities, mosquito control districts, water districts, 
pesticide applicators, farmers, ranchers, forest managers, 
scientists and others. The new and duplicative permitting 
process will increase both the administrative difficulty and 
costs for pesticide applicators to come into compliance with 
the law. Compliance will no longer mean simply following 
instructions on a pesticide label. Instead, applicators will 
have to navigate a complex process of identifying the relevant 
permit, filing with the regulatory authority a valid notice of 
intent to comply with the permit and having a familiarity with 
all of the permit's conditions and restrictions. Along with 
increased administrative burdens comes an increased monetary 
burden. Estimates are that the cost associated with the EPA 
permit scheme to small businesses could be as high as $50,000 
per business annually.
    In addition to the costs of coming into compliance, 
pesticide users will be subject to an increased risk of 
litigation and exorbitant fines. Applicators not in compliance 
face fines of up to $37,500 per day per violation, not 
including attorney's fees. Given the fact that a large number 
of applicators have never been subject to NPDES and its 
permitting process, even a good faith effort to be in 
compliance could fall short. Moreover, the CWA allows for 
private actions against individuals who may or may not have 
committed a violation. Thus, while EPA may exercise its 
judgment and refrain from prosecuting certain applicators, they 
remain vulnerable to citizen suits. Unless Congress acts, 
hundreds of thousands of farmers, foresters, and public health 
pesticide users will go into the next season under threat of 
lawsuits once the Sixth Circuit's April 9, 2011 deadline 
passes.
    It is not only pesticide regulators and applicators who 
will be affected by new permitting requirements. Rather, the 
Sixth Circuit's decision will affect everyday citizens, who 
rely on the benefits provided by pesticides and their 
responsible application. Pesticide use is an essential part of 
agriculture. Imposing a burdensome and duplicative permitting 
process on our nation's farmers threatens their ability to 
continue to provide the country with a safe and reliable food 
supply. Many family farmers and small applicators lack the 
resources to ensure compliance with a cumbersome and detailed 
permit scheme. Moreover, for those farmers who are able to 
comply, delays that are inherent in permitting schemes are ill-
suited for prompt pest control actions necessary in 
agriculture. Failure to apply a pesticide soon after a pest is 
first detected could result in recurring and greater pest 
damage in subsequent years if a prolific insect were to become 
established in plant hosts. The Secretary of Agriculture, Hon. 
Thomas J. Vilsack, has said that a permitting system under the 
CWA for pesticide use ``is ill-suited to the demands of 
agricultural production.'' (Letter, Hon. Thomas J. Vilsack, 
Secretary of Agriculture, to Hon. Lisa P. Jackson, 
Administrator, U.S. Environmental Protection Agency, Subject: 
The National Cotton Council of America, et al., v. United 
States Environmental Protection Agency (Mar. 6, 2009)).
    Forest landowners also will suffer under the new permit 
scheme. EPA's permit scheme will result in a reduction in the 
use of forest pest control as a forest management tool, 
resulting in the acceleration of tree mortality and general 
decline in overall forest health. It will also erect barriers 
for the control of pests, such as Gypsy Moth and Forest Tent 
Caterpillar. This may result in a higher incidence of 
preventable tree kills and defoliated landscapes.
    Finally, the Sixth Circuit's holding could have significant 
implications for public health. The National Centers for 
Disease Control officially recognizes the following as a 
partial list of mosquito-borne diseases--Eastern Equine 
Encephalitis, Japanese Encephalitis, La Crosse Encephalitis, 
St. Louis Encephalitis, West Nile Virus, Western Equine 
Encephalitis, Dengue Fever, Malaria, Rift Valley Fever, and 
Yellow Fever. (Centers for Disease Control and Prevention, 
http://www.cdc.gov/ncidod/diseases/list_mosquitoborne.htm.) 
EPA's permit program poses the possibility of critical delays 
in emergency responses to insect and disease outbreaks and will 
divert resources from controlling environmental pests to 
litigation and administrative burdens.

Development of legislation in response to the Sixth Circuit decision

    As a result of concerns raised by Federal, state, local, 
and private stakeholders regarding the interrelationship 
between FIFRA and the CWA and the concerns posed by the new and 
duplicative permitting process under the CWA, the House 
Committee on Transportation and Infrastructure and House 
Committee on Agriculture sought technical assistance from EPA 
to draft very narrow legislation targeted only at responding to 
the Sixth Circuit's holding in National Cotton Council and 
return the state of pesticide regulation to the status quo--
before the courts got involved. H.R. 872 is based on the 
technical assistance that EPA provided to the Committees, and 
is intended to be consistent with EPA's final rule from 
November 2006. The bill amends FIFRA and the CWA to eliminate 
the requirement of an NPDES permit for applications of 
pesticides authorized for sale, distribution, or use under 
FIFRA.

                          Legislative History

    On March 2, 2011, Subcommittee on Water Resources and 
Environment Chairman Bob Gibbs introduced H.R. 872, the 
``Reducing Regulatory Burdens Act of 2011.'' On March 16, 2011, 
the Committee on Transportation and Infrastructure met in open 
session to consider H.R. 872, and ordered the bill reported 
favorably to the House by roll call vote with a quorum present. 
The vote was 46 yeas to 8 nays. An amendment in the nature of a 
substitute was offered in Committee by Mrs. Schmidt, which was 
adopted by voice vote. The amendment made two technical and 
clarifying changes to the bill: to clarify that any pesticide 
authorized for sale, distribution, or use under FIFRA is 
covered by the permitting exemption provided by the bill; and 
to clarify the scope of an exception to the exemption. Mr. 
Bishop also offered and withdrew an amendment that would have 
ended, after five years, the permitting exemption provided by 
the bill.

                                Hearings

    On February 16, 2011, the Subcommittee on Water Resources 
and Environment held a joint hearing with the Nutrition and 
Horticulture Subcommittee of the House Agriculture Committee to 
consider means for reducing the regulatory burdens posed by the 
case, National Cotton Council v. EPA (6th Cir. 2009), and to 
consider related draft legislation. Representatives of the 
Environmental Protection Agency, state water quality agencies, 
a State agricultural agency, the irrigation community, and the 
mosquito control community testified on the economic and 
regulatory impacts of the Sixth Circuit decision in National 
Cotton Council and on a discussion draft of the bill.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires each committee report to include the 
total number of votes cast for and against on each record vote 
on a motion to report and on any amendment offered to the 
measure or matter, and the names of those members voting for 
and against. During consideration of H.R. 872, a total of one 
vote was taken, which was on a final vote ordering the bill 
reported as amended. The bill, as amended, was reported to the 
House with a favorable recommendation after a record vote which 
was disposed of as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee on Transportation and 
Infrastructure's oversight findings and recommendations are 
reflected in this report.

                          Cost of Legislation

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives does not apply where a cost estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974 has been timely submitted prior to the filing of the 
report and is included in the report. Such a cost estimate is 
included in this report.

               New Budget Authority and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974, included below.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for H.R. 872 from the 
Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 18, 2011.
Hon. John L. Mica,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 872, the Reducing 
Regulatory Burdens Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

H.R. 872--Reducing Regulatory Burdens Act of 2011

    HR. 872 would prohibit the Environmental Protection Agency 
(EPA) and states authorized to issue National Pollutant 
Discharge Elimination System (NPDES) permits from requiring a 
permit for some discharges of pesticides authorized for use 
under the Federal Insecticide, Fungicide, Rodenticide Act 
(FIFRA). Under the bill, public and private entities would no 
longer need to obtain an NPDES permit for certain discharges of 
pesticides except in cases where the application of the 
pesticide would not fall under FIFRA, or in cases where the 
discharge is regulated as a stormwater, municipal, or 
industrial discharge under the Clean Water Act. Under a recent 
court ruling, the requirement to obtain an NPDES permit will 
become effective on April 9, 2011; at that time, pesticide 
applications not covered by an NPDES permit will be subject to 
a fine.
    Based on information from EPA, CBO estimates that enacting 
this legislation would have no significant impact on the 
federal budget. Any administrative savings to EPA that might 
result from issuing fewer permits would be negligible because 
EPA has delegated the authority to issue most NPDES permits to 
states.
    Pay-as-you-go procedures do not apply to H.R. 872 because 
the bill would not affect direct spending or revenues.
    H.R. 872 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On March 11, 2011, CBO transmitted a cost estimate for H.R. 
872, the Reducing Regulatory Burdens Act of 2011, as ordered 
reported by the House Committee on Agriculture on March 9, 
2011. The two versions of the legislation are similar, and the 
CBO cost estimates are the same.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goals and objectives of this legislation are to 
reduce regulatory burdens caused by duplicative regulatory 
requirements associated with the use of pesticides in or near 
navigable waters by amending the Federal Insecticide, 
Fungicide, and Rodenticide Act and the Clean Water Act.

                          Advisory of Earmarks

    In compliance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 872 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act (Public Law 104-4).

                        Preemption Clarification

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any Committee on a bill or joint 
resolution to include a statement on the extent to which the 
bill or joint resolution is intended to preempt state, local, 
or tribal law. The Committee states that H.R. 872 does not 
preempt any state, local, or tribal law.

                      Advisory Committee Statement

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                Applicability to the Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Public Law 
104-1).

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    Section 1 of the bill designates the title of the bill as 
the ``Reducing Regulatory Burdens Act of 2011.''

Section 2. Use of registered pesticides

    Section 2 of the bill amends section 3(f) of FIFRA (7 
U.S.C. 136a(f)) by adding at the end a new paragraph (5). 
Paragraph (5) provides that, except as provided in section 
402(s) of the Federal Water Pollution Control Act (the CWA), 
the Administrator or a State may not require a permit under the 
CWA for a discharge from a point source into navigable waters 
of a pesticide registered under FIFRA, or the residue of such a 
pesticide, resulting from the application of such pesticide. 
The exceptions provided in section 402(s) of the CWA are 
provided in new subsection (s)(2), discussed further below.
    The net effect of this provision is to exempt, from the 
CWA's NPDES permitting process, a discharge from a point source 
into navigable waters of a pesticide registered under FIFRA, or 
the residue of such a pesticide, resulting from the application 
of the pesticide, where the pesticide is used for its intended 
purpose and the use is in compliance with pesticide label 
requirements.
    The Committee has received testimony on how EPA uses its 
full regulatory authority under FIFRA to ensure that pesticides 
do not cause unreasonable adverse effects on human health and 
the environment, including our nation's water resources. The 
regulatory restrictions imposed by EPA under FIFRA directly 
control the amount of pesticide available for transport to 
navigable waters, either by reducing the absolute amount of 
pesticide applied, or by changing application conditions to 
minimize transport and make transport of applied pesticide less 
likely.
    Therefore, as long as a pesticide is authorized for sale, 
distribution, or use under FIFRA, the pesticide is used for its 
intended purpose, and the use is in compliance with pesticide 
label requirements, then the Committee sees no need to require 
the user of the pesticide to apply for and obtain an NPDES 
permit for that use. The Committee believes that requiring an 
NPDES permit in such circumstances is unnecessary and would 
impose duplicative and wasteful regulatory burdens on EPA and 
state permitting agencies, and on pesticide users.

Section 3. Discharges of pesticides

    Section 3 of the bill amends section 402 of the Federal 
Water Pollution Control Act (33 U.S.C. 1342) by adding at the 
end a new subsection (s).
    New subsection (s)(1) provides that, except as provided in 
paragraph (2) of subsection (s), the Administrator or a State 
shall not require a permit under the CWA for a discharge from a 
point source into navigable waters of a pesticide authorized 
for sale, distribution, or use under FIFRA, or the residue of 
such a pesticide, resulting from the application of such 
pesticide. This provision is aimed at mirroring the provision 
added to FIFRA under Section 2 of the bill.
    This provision, like that in Section 2 of the bill, is 
intended to exempt from the CWA's NPDES permitting process, 
subject to the exceptions in paragraph (2), a discharge from a 
point source into navigable waters of a pesticide authorized 
for sale, distribution, or use under FIFRA, or the residue of 
such a pesticide, resulting from the application of the 
pesticide, where the pesticide is used for its intended purpose 
and the use is in compliance with pesticide label requirements.
    As noted earlier, as long as a pesticide is authorized for 
sale, distribution, or use under FIFRA, the pesticide is used 
for its intended purpose, and the use is in compliance with 
pesticide label requirements, then the Committee sees no need 
to require the user of the pesticide to apply for and obtain an 
NPDES permit for that use. The Committee believes that 
requiring an NPDES permit in such circumstances is unnecessary 
and would impose duplicative and wasteful regulatory burdens on 
EPA and state permitting agencies, and on pesticide users.
    The Committee adopted a technical change to the language of 
paragraph (1) in a Committee meeting held on March 16, 2011, to 
clarify that any pesticide authorized for sale, distribution, 
or use under FIFRA is covered by this exemption. This change 
was made to conform Section 3 of the bill with a change the 
House Committee on Agriculture made to Section 2 of the bill in 
a meeting of that committee on March 9, 2011.
    Paragraph (2) of new subsection (s) provides certain 
exceptions to the exemption from NPDES permitting provided in 
paragraph (1). The categories of discharges listed in 
paragraphs (2)(A) and (B) are not exempted and therefore 
require an NPDES permit if those discharges contain a pesticide 
or a residue of a pesticide as a component in those discharges. 
None of the exceptions in paragraph (2) are intended to expand 
the permitting authority of EPA or a state to require a permit 
under the CWA, or to provide a backdoor way to narrow or negate 
the exemption in paragraph (1) from the CWA's NPDES permitting 
process of a discharge from a point source into navigable 
waters of a pesticide authorized for sale, distribution, or use 
under FIFRA, or the residue of such a pesticide, resulting from 
the application of the pesticide, where the pesticide is used 
for its intended purpose and the use is in compliance with 
pesticide label requirements.
    The exception in subparagraph (A) of paragraph (2) applies 
to circumstances where there has been an application of a 
pesticide in violation of a provision of FIFRA relevant to 
protecting water quality, and as a result of that application 
of the pesticide in violation of FIFRA, there has been a 
discharge of a pesticide or residue of a pesticide that either 
would not have occurred but for the violation of FIFRA, or the 
amount of pesticide or residue of a pesticide contained in the 
discharge is greater than would have occurred without the 
violation of FIFRA. A violation of FIFRA is considered to be 
relevant to protecting water quality only if that violation 
results in the occurrence of a discharge of a pesticide or 
residue of a pesticide from an application of the pesticide, 
and that discharge either would not have occurred but for the 
violation, or the amount of pesticide or residue of a pesticide 
contained in the discharge is greater than would have occurred 
without the violation.
    Hence, a violation of FIFRA not involving or affecting a 
discharge into navigable waters of a pesticide or residue of a 
pesticide from an application of the pesticide (e.g., a 
violation of a FIFRA requirement that a person mixing a 
pesticide must wear protective clothing) does not trigger 
permitting requirements under the CWA and is not a violation of 
the CWA. Similarly, a violation of FIFRA, where a discharge of 
a pesticide or residue of a pesticide did not occur even with 
the FIFRA violation, or the amount of pesticide or residue of a 
pesticide contained in the discharge is not increased as 
compared to what would have occurred without the FIFRA 
violation, does not trigger permitting requirements under the 
CWA and is not a violation of the CWA. Enforcement under the 
CWA under the circumstances presented in paragraph (2)(A)(i) or 
(ii) would require proof of both a CWA violation and a FIFRA 
violation.
    It is the intent of the Committee that, regarding 
biological pesticides, including those produced by plants, H.R. 
872 shall not apply to plants because they are not a point 
source. The exemption requires a discharge from a point source. 
Moreover, section 402 of the CWA only requires an NPDES permit 
for a point source discharge.
    The bill is not intended to exempt from NPDES permitting 
under CWA section 402 certain discharges of waste streams 
merely because they may contain a pesticide or residue of a 
pesticide as a component in them. Therefore, the exceptions in 
subparagraphs (B) and (C) of paragraph (2) identify those types 
of discharges that remain subject to NPDES permitting under CWA 
section 402, even if those discharges may contain in them a 
pesticide or residue of a pesticide as a component. The 
categories of discharges described in subparagraphs (B) and (C) 
are intended to encompass all of the types of discharges, 
which, if they do contain as a component a pesticide or residue 
of a pesticide, would continue to require an NPDES permit.
    The exception in subparagraph (B) of paragraph (2) applies 
to stormwater discharges regulated under subsection (p) of CWA 
section 402. Discharges regulated under subsection (p) include 
stormwater discharged from certain municipal stormwater 
systems, certain areas associated with industrial activity, 
certain construction sites, and certain other impervious areas.
    The exception in subparagraph (C) of paragraph (2) applies 
to the following other discharges regulated under subsection 
(p) of CWA section 402: manufacturing or industrial effluent; 
treatment works effluent; and discharges incidental to the 
normal operation of a vessel, including a discharge resulting 
from ballasting operations or vessel biofouling prevention.
    The Committee adopted a technical change to the language of 
subparagraph (C) in a Committee meeting held on March 16, 2011, 
to clarify the scope of the exceptions in subparagraph (C).
    ``Manufacturing or industrial effluent'' under subparagraph 
(C)(i) is intended to cover point source discharges of 
wastewater from facilities with manufacturing or industrial 
processes, where those discharges contain pollutants that are 
pesticides. This may include wastewater discharges containing 
pesticides from pesticide and other agricultural chemical 
manufacturing and formulating facilities, and facilities, 
including utilities, that use biocides to prevent fouling of 
lines, mains, pipes, or cooling towers.
    ``Treatment works effluent'' under subparagraph (C)(ii) is 
intended to cover point source discharges of wastewater from 
treatment works, where those discharges contain pollutants that 
are pesticides. The term ``treatment works'' is defined in 
section 212 of the CWA.
    ``Discharges incidental to the normal operation of a 
vessel, including a discharge resulting from ballasting 
operations or vessel biofouling prevention'' under subparagraph 
(C)(iii) is intended to cover point source discharges from 
vessels that are subject to permitting under EPA's NPDES 
vessels program that regulates incidental discharges from the 
normal operation of vessels, where those discharges contain 
pollutants that are pesticides. The vessels currently subject 
to permitting under the NPDES vessels program consist of all 
non-recreational, non-military vessels of 79 feet or greater in 
length which discharge into navigable waters.
    Recreational vessels as defined in section 502(25) of the 
CWA are exempted from NPDES permitting in section 402(r) of the 
CWA. It is the Committee's intent to leave undisturbed this 
exemption from NPDES permitting for recreational vessels in 
section 402(r). In addition, vessels of the Armed Forces, as 
defined in section 312(a)(14) of the CWA, are not subject to 
permitting under the NPDES vessels program. With the exception 
of ballast water discharges, non-recreational vessels less than 
79 feet in length, and all commercial fishing vessels, 
regardless of length, currently are not subject to permitting 
under the NPDES vessels program, although they may be in the 
future when a moratorium from regulation established by Public 
Law 111-215 ends on December 18, 2013.
    The intent of the Committee is for sections 2 and 3 of the 
bill to reverse the Sixth Circuit's holding in the National 
Cotton Council case and return the state of pesticide 
regulation to the status quo, before any courts ruled on the 
applicability of the CWA to pesticide applications regulated 
under FIFRA. H.R. 872 eliminates the requirement of an NPDES 
permit for the application of pesticides authorized for sale, 
distribution, or use under FIFRA.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT

           *       *       *       *       *       *       *



SEC. 3. REGISTRATION OF PESTICIDES.

  (a) * * *

           *       *       *       *       *       *       *

  (f) Miscellaneous.--
          (1) * * *

           *       *       *       *       *       *       *

          (5) Use of registered pesticides.--Except as provided 
        in section 402(s) of the Federal Water Pollution 
        Control Act, the Administrator or a State may not 
        require a permit under such Act for a discharge from a 
        point source into navigable waters of a pesticide 
        registered under this Act, or the residue of such a 
        pesticide, resulting from the application of such 
        pesticide.

           *       *       *       *       *       *       *

                              ----------                              


FEDERAL WATER POLLUTION CONTROL ACT

           *       *       *       *       *       *       *


TITLE IV--PERMITS AND LICENSES

           *       *       *       *       *       *       *


            NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

  Sec. 402. (a) * * *

           *       *       *       *       *       *       *

  (s) Discharges of Pesticides.--
          (1) No permit requirement.--Except as provided in 
        paragraph (2), a permit shall not be required by the 
        Administrator or a State under this Act for a discharge 
        from a point source into navigable waters of a 
        pesticide authorized for sale, distribution, or use 
        under the Federal Insecticide, Fungicide, and 
        Rodenticide Act, or the residue of such a pesticide, 
        resulting from the application of such pesticide.
          (2) Exceptions.--Paragraph (1) shall not apply to the 
        following discharges containing a pesticide or 
        pesticide residue:
                  (A) A discharge resulting from the 
                application of a pesticide in violation of a 
                provision of the Federal Insecticide, 
                Fungicide, and Rodenticide Act that is relevant 
                to protecting water quality, if--
                          (i) the discharge would not have 
                        occurred but for the violation; or
                          (ii) the amount of pesticide or 
                        pesticide residue contained in the 
                        discharge is greater than would have 
                        occurred without the violation.
                  (B) Stormwater discharges regulated under 
                subsection (p).
                  (C) The following discharges regulated under 
                this section:
                          (i) Manufacturing or industrial 
                        effluent.
                          (ii) Treatment works effluent.
                          (iii) Discharges incidental to the 
                        normal operation of a vessel, including 
                        a discharge resulting from ballasting 
                        operations or vessel biofouling 
                        prevention.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    We agree, generally speaking, that duplicative Federal 
regulation should be avoided as it has the potential to impose 
financial or administrative burdens on regulated entities, with 
no readily apparent benefit. In situations where Federal 
regulations are truly duplicative, we agree that every effort 
should be taken to eliminate duplication.
    Yet, we believe that, with respect to pesticide 
application, the answer of whether the requirements of the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and 
the Federal Water Pollution Control Act, more commonly known as 
the Clean Water Act, are truly duplicative is unknown at this 
time. Unfortunately, our efforts to answer this and other basic 
questions about whether permanently exempting pesticide 
applications from the Clean Water Act is warranted and 
advisable, have been rebuffed by the Republican majority at 
every turn, including its refusal to even allow one witness 
called by the Minority members of the Subcommittee on Water 
Resources and Environment to testify before a joint 
Subcommittee hearing on this subject, held in conjunction with 
the House Agriculture Subcommittee on Nutrition and 
Horticulture.
    This, combined with the fact that pesticides are currently 
being detected in surface and ground waters at levels 
sufficient to cause significant impacts to the fish and 
wildlife that rely on such waters, and at levels that have 
exceeded the human health benchmark for pesticides in drinking 
water, have led us to question whether this legislation is the 
best way to protect human health and the environment. More 
specifically, if the status quo regulatory framework in which 
pesticide applications are regulated under FIFRA but not the 
Clean Water Act (which this legislation seeks to maintain) is 
sufficiently protective of human health and the environment as 
the advocates of this legislation have argued, then why are 
pesticides currently detected in 97 percent of streams in both 
agricultural and urban areas.
    For these reasons, we continue to have reservations with or 
are opposed to H.R. 872 in its current form, and recommend that 
Congress delay further action on this legislation until it has 
the critical information necessary to answer how best to 
protect human health and the environment from the adverse 
impacts of pesticides.

                    Issues Related to Pesticide Use

    According to the U.S. Geological Survey (USGS), about 1 
billion pounds of conventional pesticides are used each year to 
control weeds, insects, and other pests, resulting in a range 
of benefits, including increased food production and the 
prevention of insect-borne disease.
    While pest control and fire suppression provide important 
health and economic benefits, the relationship between the 
legal use of chemical and biological pesticides and their 
impacts on water quality--both in-stream and drinking water--
remains of concern. As noted in a 2006 report of the USGS,\1\ 
even properly applied pesticides can cause water quality 
impairment once in the water. In certain situations, pesticides 
can harm the aquatic ecosystem and diminish the value of the 
water body as a drinking water source. Where that is the case, 
other steps must be taken to protect the resource, additional 
costs are incurred in removing chemicals from drinking water, 
and public health can be compromised.
---------------------------------------------------------------------------
    \1\See Pesticides in the Nation's Streams and Ground Water, 1992-
2001. (http://water.usgs.gov/nawqa/pnsp/)
---------------------------------------------------------------------------
Pesticides in the Nation's Streams and Groundwater
    In 2006, the National Water-Quality Assessment (NAQWA) 
program of USGS released its decadal assessment on pesticide 
occurrence and concentrations in streams and groundwater, based 
on the results from studies completed by USGS during the period 
from 1992 to 2001. According to this report, at least one 
pesticide was detected in water from all streams tested 
throughout the nation, and pesticide compounds were detected 
throughout most of the year from streams with agriculture (97 
percent of samples), urban (97 percent of samples), and mixed-
land-use watersheds (94 percent of samples). In addition, 
certain classes of pesticides (such as DDT), which have been 
banned in the United States for decades, were found in the fish 
tissue and bed-sediment samples from most streams in 
agricultural, urban, and mixed-land-use watersheds. According 
to USGS, the frequency of pesticide detections, especially 
those that have not been used in the United States for decades, 
suggests the persistence of pesticide impacts to the natural 
environment.
    State water pollution control agencies have similarly 
identified a number of waterbodies that are currently 
contaminated by pesticides. For example, in the Environmental 
Protection Agency's (EPA) 2010 National Summary of State 
Information,\2\ States have reported that approximately 16,599 
miles of rivers and streams, 1,380 square miles of bays and 
estuaries, and 372,020 acres of lakes are currently impaired or 
threatened by pesticides--meaning that the particular waterbody 
fails to meet (or is threatened on) a particular use, such as a 
source of drinking water, fish, shellfish, and wildlife 
propagation, or recreation. In the State of California, alone, 
pesticides are listed as the number one source of water quality 
impairment in the state, with 312 specific waterbodies being 
impaired for 31 different categories of pesticides. EPA has 
also suggested that the number of State waterbodies currently 
impaired by pesticides may not reflect the actual number of 
impaired waters because states' do not test or regularly 
monitor for a significant number of common pesticides.
---------------------------------------------------------------------------
    \2\See http://iaspub.epa.gov/waters10/attains_nation_cy.control.
---------------------------------------------------------------------------
    Pesticide detections in ground water are also common. 
According to USGS, pesticides and pesticide compounds were 
detected in the shallow ground water of agricultural areas (61 
percent of samples), urban areas (55 percent of samples), and 
mixed-land-use areas (33 percent of samples). While the data 
suggests that surface waters are more vulnerable to pesticide 
contamination, USGS suggested that ground water contamination 
is also a concern because shallow ground water sources often 
are used as a source of drinking water (typically in rural or 
suburban areas) where such water is not treated before 
consumption, and because ground water contamination is 
difficult to reverse once it occurs.
    According to USGS, other predictive factors for the 
presence of pesticides in surface and ground waters are the 
frequency of use of the pesticide and the relationship between 
land and pesticide use. According to the report, the most 
frequently detected herbicides used mainly for agriculture 
during the study period--atrazine, metolachlor, cyanazine, 
alachlor, and acetochlor--generally were detected most often 
and at the highest concentrations in water samples from streams 
in agricultural areas with their greatest use, particularly in 
the Corn Belt of the United States. Five herbicides commonly 
used in urban areas--simazine, prometon, tebuthiuron, 2,4-D, 
and diuron--and three commonly used insecticides--diazinon, 
chlorpyrifos, and carbaryl--were most frequently detected in 
urban streams throughout the Nation. Similarly, USGS samples 
also suggested a connection between seasonal use of pesticides, 
such as spring use of herbicides in the Corn Belt and fall/
winter use of diazinon during the dormant period for San 
Joaquin Valley almond growers, and the occurrence of pesticide 
concentrations in stream water.
Pesticides in Sources of Drinking Water
    According to EPA, the potential human health impacts of 
pesticide exposure depend on the type of pesticide, and the 
pathway, concentration, and duration of the exposure. According 
to the Agency, the potential human health implications can 
range from irritation of the skin and eyes, to impacts to the 
nervous system, to impacts during the gestation and adolescent 
development of children, to disruption of the hormone or 
endocrine system, to their potential as a human carcinogen.
    One potentially significant source of human exposure to 
pesticides comes from consuming pesticide--contaminated 
drinking water. As noted earlier, USGS has frequently detected 
the presence of pesticides in streams and ground water 
throughout the nation. In a separate study, USGS found 
pesticides (and other man-made compounds) in the surface water 
sources for nine community water systems in nine separate 
States throughout the nation, serving communities ranging from 
3,000 people to 2 million people.\3\ Finally, according to the 
U.S. Department of Agriculture's Pesticide Data Program, 
pesticides were detected in 44 percent of all potable 
groundwater samples taken by the agency, as well as a number of 
public drinking water reservoirs and treated water supply.''\4\
---------------------------------------------------------------------------
    \3\See Man-Made Organic Compounds in Source Water of Nine Community 
Water Systems that Withdraw from Streams, 2002-05. (http://
pubs.usgs.gov/fs2008-3094.pdf)
    \4\See U.S. Department of Agriculture, Pesticide Data Program--
Progress Report 2008-2010.(http://www.ams.uda.gov/AMSv1.0/
getfile?dDocName=STELDEV3002094)
---------------------------------------------------------------------------
    While, in the majority of these cases, pesticide detection 
levels were below the currently-assessed human health 
benchmarks for those detected pesticides that have 
standards,\5\ USGS has found a number of incidents where 
pesticide detection levels were above such benchmarks--where 
the greatest potential impact is to communities with the least 
resources to address these contaminants. Similarly, while the 
pesticide detection levels were often below the current human 
health benchmark, this does not address the equally troubling 
question of what are the potential human health implications of 
long-term, low-level exposure to pesticides, especially to the 
health of children, pregnant women, and the elderly.
---------------------------------------------------------------------------
    \5\According to the 2006 USGS report, only 47 of the 83 pesticides 
and degradates analyzed by USGS had drinking water standards (under the 
Safe Drinking Water Act) or human health guidelines developed by EPA's 
Office of Water. EPA does not have an appropriate human health standard 
for a significant number of pesticides (and degradates) that are 
currently present in the nation's surface and ground waters.
---------------------------------------------------------------------------
    In addition, USGS found widespread occurrences of pesticide 
``mixtures,'' typically in streams, that may increase the 
toxicity of individual pesticides. According to the agency, the 
frequent detection of pesticide mixtures complicates questions 
on the potential risks to human health and the environment from 
exposure to pesticides (either individually or in combination) 
because little is known about them.
    Additional studies have demonstrated that concentrations of 
pesticides (and other man-made compounds) are generally not 
affected by drinking water treatment facilities. According to 
USGS and EPA, drinking water treatment facilities are typically 
not designed to remove pesticides (and similar compounds) from 
drinking water. As a result, if pesticides are present in 
surface and ground waters that serve as a source of drinking 
water, it is likely that these pesticides will be detected in 
treated waters in the distribution system.
    In our view, the combination of these factors--the 
frequency of pesticide detections in surface and ground waters, 
the fact that some detections exceed human health benchmarks 
(where there are appropriate benchmarks), the frequency and 
uncertainty created by pesticide ``mixtures'', and the fact 
that modern drinking water treatment technologies are not 
designed to remove pesticides--compel us to move cautiously on 
any legislative proposal that would reduce options for 
minimizing the amount of pesticides being released into our 
nation's waters.

          Fundamental Differences Between the Clean Water Act 
                               and FIFRA

    Over the past few years, there has been significant 
interest in the statutory and regulatory relationship between 
the Clean Water Act and FIFRA. Affected stakeholders, including 
the agricultural, silvicultural, fire-suppression, and pest-
control communities, have expressed concern about how to 
reconcile the requirements of both FIFRA and the Clean Water 
Act when applying chemicals and pesticides directly onto or 
near waters of the United States.
    The goal of the Clean Water Act is to restore and maintain 
the chemical, physical, and biological integrity of the 
Nation's waters. To that end, the Act provides that, except in 
compliance with a permit, the discharge of any pollutant from a 
point source into the waters of the United States, which 
includes wetlands, is unlawful. Under section 402 of the Act, 
EPA\6\ or approved state agencies may issue permits that allow 
the discharge of pollutants into the waters of the United 
States\7\ Under section 402(k) of the Act, any person who 
discharges a pollutant in compliance with a permit issued under 
the Act (including EPA's proposed pesticide general permit) is 
deemed in compliance with the Act, and is not subject to 
Federal enforcement action (under section 309) nor a citizen 
suit brought by a third party (under section 505).
---------------------------------------------------------------------------
    \6\For purposes of the draft Pesticide General Permit, EPA would be 
the regulatory authority in six states (AK, ID, MA, NH, NM, and OK). 
The remaining 44 states would implement their own regulatory authority; 
however, expectations are that most of these states would use the PGP 
as the model for State authority.
    \7\The Clean Water Act provides the Administrator of EPA with the 
authority to issue general permits for certain discharges, such as the 
application of pesticides, provided that the discharges will have only 
a minimal adverse impact on the environment. In its proposed Pesticide 
General Permit (PGP), EPA has proposed using its general permit 
authority for the majority of applications of pesticides.
---------------------------------------------------------------------------
    For the past thirty years, however, pesticide use has been 
regulated under FIFRA, which was enacted to ensure that 
pesticides are safe, effective, and meet risk-benefit tests 
established by EPA to prevent unreasonable adverse effects on 
human health and the environment through their intended and 
approved use. Under FIFRA, EPA regulates the sale and use of 
pesticides through registration and labeling of the estimated 
21,000 pesticide products currently in use. FIFRA prohibits the 
sale of any pesticide in the U.S. unless it is registered and 
labeled to indicate approved uses and restrictions. It is a 
violation of the law to use a pesticide in a manner that is 
inconsistent with the label instructions.
    These two statutes, although complementary in certain 
respects, are not substitutes for one another or duplicative as 
some have argued. FIFRA and the Clean Water Act were enacted to 
achieve different objectives. Whereas the Clean Water Act was 
enacted to restore and maintain the integrity of U.S. waters, 
with a primary focus on the protection of water quality, FIFRA 
is primarily focused on ensuring that pesticides are regulated 
and uniformly labeled indicating approved uses and 
restrictions.
    In protecting water quality, the Clean Water Act focuses on 
the characteristics of specific water bodies, addressing site-
specific water quality impairments with individual plans 
tailored to meet particular use goals. In contrast, FIFRA 
focuses on uniform, national standards for pesticide 
registration and labeling, and does not take (and, based on 
information from EPA, traditionally has not taken) into 
consideration the potential localized impact from the discharge 
of chemicals into individual water bodies. In approving the use 
of pesticides under FIFRA, EPA is directed only to consider 
that the overall national economic benefits of allowing the use 
of the product outweigh adverse environmental effects. Under 
current FIFRA regulations, EPA does not warrant that compliance 
with a FIFRA label satisfies all other Federal laws, nor that 
the use of a particular product is appropriate in every 
situation.
    The fundamental distinction between the ability of these 
two Federal statutes to protect local water quality conditions 
was reiterated by the Ninth Circuit Court of Appeals, in the 
Headwaters, Inc. v. Talent Irrigation District\8\ decision, 
which noted that the ``label's general rules for applying [a 
pesticide] must be observed under FIFRA, but where the 
[pesticide] will enter waters of the United States, FIFRA 
provides no method for analyzing the local impact,'' nor does 
FIFRA provide for any ``local monitoring'' of potential 
impacts.
---------------------------------------------------------------------------
    \8\243 F.3d 526, 529 (9th Cir. 2001).
---------------------------------------------------------------------------
    At the February 16, 2011 joint hearing on this issue, 
several witnesses alluded to the EPA's risk assessment process 
undertaken during a pesticide registration process as evidence 
of FIFRA's ability to protect human health, the environment, 
and water quality from the potential adverse impacts of 
pesticides. However, we continue to have questions about the 
adequacy of this risk assessment process to provide this 
protection based on several concerns.
    First, as stated above, we are concerned that, despite the 
decades-long implementation of FIFRA pesticides continue to be 
detected in surface and ground waters throughout the nation. It 
would seem difficult to suggest that the thousands of miles of 
streams and hundreds of thousands of lake acres that are 
currently impaired by pesticides is proof that FIFRA is 
protective of water quality. Similarly, it is difficult to 
suggest that frequent detection of pesticides in the drinking 
water sources of millions of Americans is proof that FIFRA is 
protective of human health. However, that is the status quo 
success rate of FIFRA that H.R. 872 seeks to maintain.
    Second, we recognize that EPA, in developing a draft 
pesticide general permit under the Clean Water Act, 
distinguished between the discharge of pesticides, generally, 
and the discharge of pesticides into a waterbody already 
impaired by pesticides. According to the Agency's pesticide 
general permit, additional precautions and impacts-analysis is 
warranted where the intended discharge of a pesticide is into a 
pesticide-impaired waterbody. We are concerned, however, that 
under H.R. 872, no additional analysis or action would be 
required for the discharge of pesticides into a pesticide 
impaired waterbody, likely worsening water quality in a 
waterbody that already is experiencing degraded conditions or 
impacts to fish, shellfish, or wildlife.
    Finally, we are concerned that the current FIFRA labeling 
process only subjects ``active ingredients'' to ecological risk 
assessment testing protocols. However, many registered 
pesticides are comprised of both ``active'' and ``inert'' 
ingredients; yet, the current FIFRA registration process does 
not subject a pesticide's inert ingredients to the same risk 
assessment process as active ingredients. According to EPA's 
published list of ``Inert Ingredients Permitted for Use in 
Nonfood Use Pesticide Products,'' the list of ``inert'' 
ingredients includes chemicals, including benzene,\9\ 
ethylbenzene,\10\ styrene,\11\ toluene,\12\ and vinyl 
chloride.\13\
---------------------------------------------------------------------------
    \9\According to EPA's National Primary Drinking Water Regulations, 
the potential health effects from long term exposure to benzene (above 
the maximum contaminant level (MCL)) include anemia, a decrease in 
blood platelets, and an increased risk of cancer. EPA has established a 
public health goal of zero for the presence of benzene in drinking 
water.
    \10\According to EPA's National Primary Drinking Water Regulations, 
the potential health effects from long term exposure to ethylbenzene 
(above the maximum contaminant level (MCL)) include liver, kidney, or 
circulatory system problems. EPA has established a public health goal 
of 0.7 mg/L\2\ for the presence of ethylbenzene in drinking water.
    \11\According to EPA's National Primary Drinking Water Regulations, 
the potential health effects from long term exposure to styrene (above 
the maximum contaminant level (MCL)) include liver, kidney, or 
circulatory system problems. EPA has established a public health goal 
of 0.1 mg/L\2\ for the presence of styrene in drinking water.
    \12\According to EPA's National Primary Drinking Water Regulations, 
the potential health effects from long term exposure to toluene (above 
the maximum contaminant level (MCL)) include nervous system, liver or 
kidney problems. EPA has established a public health goal of 1.0 mg/
L\2\ for the presence of toluene in drinking water.
    \13\According to EPA's National Primary Drinking Water Regulations, 
the potential health effects from long term exposure to vinyl chloride 
(above the maximum contaminant level (MCL)) include an increased risk 
of cancer. EPA has established a public health goal of zero for the 
presence of vinyl chloride in drinking water.
---------------------------------------------------------------------------
    As EPA notes, a chemical's characterization as ``inert'' 
does not mean ``non-toxic.'' In fact, many of the chemicals 
currently listed on EPA's list of ``inert'' ingredients are 
also identified on the Clean Water Act's ``priority toxic 
pollutants'' list, established by section 307 of the Act, as 
well as the list of ``hazardous substances'', established under 
the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA). Considering the potential public health 
and environmental implications from low-level exposure to these 
chemicals, we are concerned with the implications of subjecting 
the discharge of these chemicals, which are not subject to 
ecological risk assessment testing protocols in the pesticide 
registration process, into the nation's waters with less 
scrutiny, as is proposed by H.R. 872.

                   EPA Draft Pesticide General Permit

    In the more than 30 years that EPA has administered the 
Clean Water Act, the Agency has never issued a National 
Pollutant Discharge Elimination System (NPDES) permit for the 
application of a pesticide to target a pest that is present in 
or over, including near, the water where such application 
results in a discharge to waters of the United States. Instead, 
as mentioned above, for decades, EPA has been regulating these 
types of applications through FIFRA.
    However, starting in 2001, several courts have held that 
the Clean Water Act requires the issuance of a permit for the 
application of pesticides to U.S. waters. In response to these 
cases, the Bush Administration issued a rule (``the 2006 
Rule'') that excluded certain pesticide applications from Clean 
Water Act coverage. They were: (1) the application of 
pesticides directly to water to control pests; and (2) the 
application of pesticides to control pests that are present 
over, including near, water where a portion of the pesticides 
will unavoidably be deposited to the water to target the pests, 
and in both instances provided that the application is 
consistent with relevant FIFRA requirements.
    In 2009, the 6th Circuit Court of Appeals in National 
Cotton Council v. EPA, vacated EPA's 2006 Rule, and directed 
the Agency to require a NPDES permit for discharges of 
pesticides to U.S. waters related to their application. In its 
ruling, the Court held that the Clean Water Act unambiguously 
prohibits the discharge of any pollutant (the definition of 
which includes ``chemical wastes'' and ``biological 
materials'') into U.S. waters without a permit. The Court noted 
that, because pesticides are often comprised of biological 
materials or produce residual chemical wastes, they clearly 
fall within the Act's definition of a pollutant, and therefore 
require a permit before they may be applied to U.S. waters.
    In response to the National Cotton decision, EPA was 
compelled to develop a Clean Water Act permit for the discharge 
of pesticides to U.S. waters, and, in June 2010, proposed a 
draft NPDES Pesticide General Permit (PGP). Generally speaking, 
the draft PGP would provide Clean Water Act coverage to the 
majority of pesticide applicators for mosquito and other flying 
insect pest control; weed and algae pest control; animal pest 
control; and forest canopy pest control, provided that 
pesticide applications complied with the labeling requirements 
of FIFRA, and that certain high-volume pesticide applicators 
implemented ``integrated pest management'' techniques 
(IPM).\14\ For a significant number of pesticide applicators, 
permit coverage under the draft PGP would be automatic, with 
only those applicators that exceed EPA's use thresholds, being 
required to provide an additional ``notice of intent'' to 
obtain coverage under the permit. As noted earlier, any 
pesticide applicator who complies with the terms of the draft 
PGP (i.e., complies with the FIFRA labeling requirements, and 
implements, where applicable, the integrated pest management 
techniques) would be immune from Federal, State, or private 
lawsuit under the Clean Water Act.
---------------------------------------------------------------------------
    \14\FIFRA defines IPM as a ``sustainable approach to managing pests 
by combining biological, cultural, physical, and chemical tools in a 
way that minimizes economic, health, and environmental risks,'' such as 
requiring all operators to minimize pesticide discharges by using the 
lowest effective amount of pesticide; performing regular equipment 
maintenance; calibrating, cleaning, and repairing equipment; and 
monitoring and reporting any adverse incidents. See 7 U.S.C. 136r-1. 
USDA estimates that some level of IPM had been implemented on about 70 
percent of the nation's crop acreage by the end of crop year 2000. See 
Agricultural Pesticides: Management Improvements Needed to Further 
Promote Integrated Pest Management (GAO-01-815 (2001)).
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    EPA expects to release its final PGP in April 2011. 
However, on March 3, 2011, EPA requested an extension from the 
6th Circuit Court of Appeals to allow more time for pesticide 
operators to obtain permits for pesticide discharges into U.S. 
waters. EPA requested that the deadline be extended from April 
9, 2011 to October 31, 2011, and during this period, permits 
for pesticide applicators would not be required under the Clean 
Water Act. The EPA's request for a stay was granted by the 
court, providing Congress with additional time to discuss the 
potential impacts of H.R. 872.

Failure To Follow the Rules of the House and the Committee on Minority 
                               Witnesses

    Our concern with this legislation have been amplified by a 
legislative process that has, to date, failed to provide the 
opportunity for a balanced debate on this issue and on the 
potential impacts of H.R. 872 to the protection of public 
health, the environment, and the water quality of the nation.
    For example, at the February 16th joint hearing, the 
Ranking Member of the Subcommittee, Representative Timothy H. 
Bishop, requested two additional witnesses to discuss the 
potential implications of a draft bill similar to H.R. 872. The 
first was the lead author of the 2006 USGS report describing 
the presence of pesticides in surface and ground waters. The 
second was the lead plaintiff in the National Cotton Council 
decision. Both witnesses would have provided the Members of the 
Subcommittees with critical information on the levels of 
pesticides in the current water-related environment, as well as 
on the benefits and drawbacks of addressing pesticide 
application under both FIFRA and the Clean Water Act. 
Unfortunately, neither was invited to testify.
    By tradition of our Committee, the rule protecting the 
right of the minority to call witnesses has been honored by 
accommodating these witnesses on the same day as the majority 
witnesses. However, neither the tradition nor the letter and 
spirit of the rules were honored in this instance.
    Unfortunately, the lack of opposing views on the witness 
panel has further hindered our ability to answer fundamental 
questions on this complicated issue that Members are struggling 
to understand--the potential benefits and drawbacks from 
regulating the discharge of pesticides into U.S. waters under 
either the FIFRA or the Clean Water Act.

                               Conclusion

    We remain concerned with the potential adverse human health 
and environmental impacts caused by the presence of pesticides 
in our nation's surface waters, ground water, and drinking 
water sources. In our view, it is difficult to suggest that the 
continuing presence of pesticides, pesticide degradates, and 
pesticide mixtures in the nation's waters is evidence that the 
status quo regulatory structure is protective of human health 
and the environment.
    In addition, although we share the concerns of the 
regulated community on the need to reduce needless regulatory 
duplication, at this time, it is not clear that the primary 
objectives of the Clean Water Act and FIFRA are duplicative. 
With respect to the specific issue of how to address localized 
adverse impacts of pesticides on water quality, the track-
record of FIFRA implementation (and case law) suggest an 
inability to address localized impacts. Whether this requires 
additional authority under FIFRA or under the Clean Water Act 
is a valid point for debate; however, that is not the subject 
of the legislation before us today. All that is contemplated 
under H.R. 872 is to remove the one tool from the regulatory 
tool box; and not to augment the protection of surface waters, 
ground water, and drinking water sources under either statute.
    For these reasons, we continue to have reservations with or 
are opposed to H.R. 872 in its current form. We recommend that 
Congress delay further action on this legislation until it has 
the critical information necessary to address how best to 
protect human health and the environment from the adverse 
impacts of pesticides.

                                   Tim Bishop.
                                   Michael Capuano.
                                   Bob Filner.
                                   Jerrold Nadler.
                                   Donna Edwards.
                                   Russ Carnahan.
                                   Elijah Cummings.
                                   Grace Napolitano.
                                   Daniel Lipinski.
                                   Mazie Hirono.
                                   Peter DeFazio.
                                   Eleanor Holmes Norton.

                                  
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