[House Report 113-467]
[From the U.S. Government Publishing Office]


113th Congress                                            Rept. 113-467
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
                REDUCING REGULATORY BURDENS ACT OF 2013

                                _______
                                

  June 2, 2014.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 935]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 935) 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 without amendment and recommend 
that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose of Legislation...........................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     7
Legislative History and Consideration............................     7
Committee Votes..................................................     8
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Performance Goals and Objectives.................................     9
Advisory of Earmarks.............................................     9
Duplication of Federal Programs..................................     9
Disclosure of Directed Rule Makings..............................    10
Federal Mandate Statement........................................    10
Preemption Clarification.........................................    10
Advisory Committee Statement.....................................    10
Applicability of Legislative Branch..............................    10
Section-by-Section Analysis of Legislation.......................    10
Changes in Existing Law Made by the Bill, as Reported............    13

                         Purpose of Legislation

    The Reducing Regulatory Burdens Act of 2013, H.R. 935, 
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 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, 46 
states have been authorized to implement NPDES permits and 
enforce permits. EPA manages the Clean Water Act program in the 
remaining states.
    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 did not 
require the issuance of an NPDES permit for the application of 
pesticides, when the pesticide is applied in a manner 
consistent with FIFRA and its regulations. However, beginning 
in the late 1990s, a number 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 uncertainty among pesticide users 
regarding the applicability of the CWA with regard to pesticide 
use.
    As the litigation continued, uncertainty grew among 
stakeholders, 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)).
    The 2006 EPA rule exempted, from CWA permitting 
requirements, the application of pesticides in compliance with 
FIFRA. 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 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.
    As a result of the Court's decision, EPA was required to 
develop a new NPDES permitting process under the CWA to cover 
pesticide use. EPA estimated that the ruling would affect 
approximately 365,000 pesticide applicators that perform some 
5.6 million pesticide applications annually. (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; hereinafter, EPA Fact Sheet.) This would 
represent a large increase in the number of entities subject to 
NPDES permitting.
    The court's decision, which would apply nationally, was to 
be effective seven days after the deadline for rehearing 
expired 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 federal 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 CWA was 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.
    Two petitions were filed with the Supreme Court in December 
2009 by representatives of the agriculture community and the 
pesticide industry, requesting that the Supreme Court review 
the National Cotton Council case. A number of parties, 
including numerous Members of Congress, filed amicus briefs 
with the Supreme Court, in support of the petitions. Other 
parties filed amicus briefs in opposition to the petitions. On 
February 22, 2010, the Supreme Court denied the petitioners' 
request without comment.

   EPA DEVELOPMENT OF A NEW PERMITTING PROCESS TO COVER PESTICIDE USE

    Following the court decision, EPA moved 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 section 303(d) for that 
discharged pesticide. The permitting process imposes 
administrative requirements on prospective pesticide users, 
including filing a notice of intent, other reporting and 
recordkeeping requirements, and in some cases monitoring and 
other requirements.

                              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 had 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 (hereinafter, the ``2011 Joint Hearing'').
    EPA's general permit for covered pesticides has resulted in 
expanded coverage under the NPDES program. As already noted, 
EPA has estimated that approximately 5.6 million covered 
pesticide applications per year by approximately 365,000 
applicators are affected by the Court's ruling (EPA Fact 
Sheet.)
    EPA has had to establish a new permitting process to 
conform its NPDES permit program to meet the Sixth Circuit's 
mandate. Even so, much of the responsibility of developing and 
issuing general permits has fallen on the states. Forty-six 
states face increased financial and administrative 
responsibilities to comply with the new permitting process. 
According to a state witness at the 2011 Joint Hearing, the 
implications on state resources associated with adding 
pesticide applications to the NPDES program are far reaching, 
in that states must not only develop permits, but must ensure 
compliance with general and individual permits, which requires 
inspections, monitoring, reporting, compliance assistance, 
outreach, training, and more. (See, e.g., Testimony of Dr. 
Andrew Fisk, on behalf of the Association of State and 
Interstate Water Pollution Control Administrators (presented at 
the 2011 Joint Hearing).) Some states have estimated that 
creating a new NPDES permitting scheme for pesticide use in 
their state has cost their state hundreds of thousands of 
dollars.
    The expanded permitting process also has added increased 
resource demands on pesticide users who encompass a wide range 
of individuals, from state, city, and county agencies, mosquito 
control districts, water districts, pesticide applicators, 
farmers, ranchers, forest managers, scientists, and others. Now 
that the permitting requirements are in effect, federal, state, 
and local agencies are expending resources to initiate and 
maintain NPDES programs governing mosquito control, 
silvicultural, and other pesticide applications. (See, e.g., 
Testimony of the Honorable John Salazar, Commissioner, Colorado 
Department of Agriculture, on behalf of the National 
Association of State Departments of Agriculture, Norman 
Semanko, on behalf of the Idaho Water Users Association and the 
National Water Resources Association, and Dominick Ninivaggi, 
on behalf of the American Mosquito Control Association 
(presented at the 2011 Joint Hearing).)
    The new permitting process has increased both the 
administrative difficulty and costs for pesticide applicators 
to come into compliance with the law. Compliance no longer 
means simply following instructions on a pesticide label. 
Instead, applicators have to identify the relevant permit, file 
with the regulatory authority a valid notice of intent to 
comply with the permit, and have a familiarity with all of the 
permit's conditions and restrictions. Some pesticide 
applicators also face significant monitoring, reporting, and 
recordkeeping costs imposed by their permits.
    In addition to the costs of coming into compliance, 
pesticide users are subject to an increased risk of litigation 
and fines. Pesticide applicators not in compliance could face 
fines of up to $37,500 per day per violation, not including 
attorney's fees. Even though EPA's pesticide general permit 
provides specific size thresholds and application types in or 
near water to be regulated by the permit, nothing in the CWA or 
the permit protects many other FIFRA-compliant pesticide 
applications from CWA citizen suits. This creates an uncertain 
liability for users applying pesticides to, for example, golf 
courses and public utility rights of way, as well as private 
homes and businesses, which are not covered by the general 
permit. (See, e.g., Testimony of Dr. Andrew Fisk, on behalf of 
the Association of State and Interstate Water Pollution Control 
Administrators, the Honorable John Salazar, Commissioner, 
Colorado Department of Agriculture, on behalf of the National 
Association of State Departments of Agriculture, and Norman 
Semanko, on behalf of the Idaho Water Users Association and the 
National Water Resources Association (presented at the 2011 
Joint Hearing).) Thus, while EPA may exercise its judgment and 
refrain from prosecuting certain applicators, the applicators 
remain vulnerable to citizen suits. Unless Congress acts, 
hundreds of thousands of farmers, foresters, and public health 
pesticide users will continue to operate under threat of 
lawsuits.
    The Sixth Circuit's decision also affects agriculture and 
its ability to continue to provide the country with a safe and 
reliable food supply. Pesticide use is an essential part of 
agriculture. 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, 
Environmental Protection Agency, Subject: The National Cotton 
Council of America, et al., v. United States Environmental 
Protection Agency (Mar. 6, 2009)).
    Forest landowners also are affected under the new permit 
scheme. The permitting requirements apply to the use of forest 
pest control as a forest management tool. A concern is whether 
states and private land owners have the flexibility and 
resources to properly manage forest pests, such as gypsy moth, 
mountain pine beetles, and forest tent caterpillar, under the 
permit program. (See, e.g., Testimony of the Honorable John 
Salazar, Commissioner, Colorado Department of Agriculture, on 
behalf of the National Association of State Departments of 
Agriculture (presented at the 2011 Joint Hearing).)
    Moreover, the Sixth Circuit's holding has 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.) The 
permit program could result in delays in emergency responses to 
insect and disease outbreaks and is diverting resources from 
controlling environmental pests to administrative tasks, 
monitoring, and potentially litigation. (See, e.g., Testimony 
of the Honorable John Salazar, Commissioner, Colorado 
Department of Agriculture, on behalf of the National 
Association of State Departments of Agriculture, and Dominick 
Ninivaggi, on behalf of the American Mosquito Control 
Association (presented at the 2011 Joint Hearing).)
    Mosquito control districts have reported that NPDES 
compliance costs are resulting in mosquito control programs to 
redirect control resources to comply with the regulatory 
requirements. Many districts have reduced operations because of 
administrative and monitoring costs and fears of increased 
liability and potential litigation under the CWA associated 
with complying with the permit requirements. In some states, 
preventive mosquito control strategies such as comprehensive 
larviciding are being curtailed in order to redirect resources 
toward increased administrative and water monitoring costs. 
Commercial applicators historically serving rural communities 
and small municipalities are increasingly opting to cancel 
their programs out of concern for increased exposure to 
liability under the CWA. These reduced mosquito control 
operations have resulted in an increased risk of vector-borne 
disease such as West Nile Virus.

  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 
permitting process under the CWA, the sponsors of H.R. 935 
introduced legislation to respond 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. 935 is based on technical assistance provided by 
EPA's Office of General Counsel (without formal endorsement), 
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.

                                Hearings

    No hearings were held on H.R. 935.
    In the 112th Congress, 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 bill.

                 Legislative History and Consideration

    On March 4, 2013, Subcommittee on Water Resources and 
Environment Chairman Bob Gibbs introduced H.R. 935, the 
``Reducing Regulatory Burdens Act of 2013.''
    On October 29, 2013, the Committee on Transportation and 
Infrastructure met in open session to consider H.R. 935, and 
ordered the bill reported favorably to the House by voice vote 
with a quorum present.
    In the 112th Congress, the Committee on Transportation and 
Infrastructure ordered a virtually identical bill (H.R. 872) 
reported favorably to the House by roll call vote with a quorum 
present. H.R. 872 passed the House of Representatives under 
suspension of the rules by recorded vote.

                            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. There were no record votes taken in connection 
with consideration of H.R. 935, or ordering the bill reported. 
A motion to order H.R. 935 reported favorably to the House was 
agreed to by voice vote with a quorum present.

                      Committee Oversight Findings

    With respect to the requirements of clause 3(c)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee's oversight findings and recommendations are 
reflected 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. 935 from the 
Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, November 4, 2013.
Hon. Bill Shuster,
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. 935, the Reducing 
Regulatory Burdens Act of 2013.
    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.
    Enclosure.

H.R. 935--Reducing Regulatory Burdens Act of 2013

    H.R. 935 would prohibit the Environmental Protection Agency 
(EPA) and states authorized to issue a permit under the 
National Pollutant Discharge Elimination System (NPDES) 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.
    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. 935 because 
enacting the bill would not affect direct spending or revenues.
    H.R. 935 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.
    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

    Pursuant to clause 9 of rule XXI of the Rules of the House 
of Representatives, the Committee is required to include a list 
of congressional earmarks, limited tax benefits, or limited 
tariff benefits as defined in clause 9(e), 9(f), and 9(g) of 
rule XXI of the Rules of the House of Representatives. No 
provision in the bill includes an earmark, limited tax benefit, 
or limited tariff benefit under clause 9(e), 9(f), or 9(g) of 
rule XXI.

                    Duplication of Federal Programs

    Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013), 
the Committee finds that no provision of H.R. 935 establishes 
or reauthorizes a program of the federal government known to be 
duplicative of another federal program, a program that was 
included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most 
recent Catalog of Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013), 
the Committee estimates that enacting H.R. 935 does not 
specifically direct the completion of any specific rule makings 
within the meaning of section 551 of title 5, United States 
Code.

                       Federal Mandate 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. 935 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 of 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 Legislation


Section 1. Short Title.

    Section 1 of the bill designates the title of the bill as 
the ``Reducing Regulatory Burdens Act of 2013.''

Section 2. Use of Authorized 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 (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.
    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 there is no need for a user of the 
pesticide to apply for and obtain an NPDES permit for that use.

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 there is no need for a user 
of the pesticide to apply for and obtain an NPDES permit for 
that use.
    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. 
935 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 of a pollutant.
    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.
    ``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 112-213 ends on December 18, 2014.
    The intent of the sponsors of the bill is to respond to 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. 935 
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 authorized 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 
        authorized for sale, distribution, or use 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 of 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 in the discharge is 
                        greater than would have occurred 
                        without the violation.
                  (B) Stormwater discharges subject to 
                regulation under subsection (p).
                  (C) The following discharges subject to 
                regulation 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.

           *       *       *       *       *       *       *


                            DISSENTING 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 with respect to pesticide application, we disagree that 
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 
duplicative with respect to protecting the quality of the 
nation's waters, or protecting human health and the health of 
the environment that is directly related to uses of these 
waters.
    Supporters of H.R. 935 suggest that application of a 
pesticide in accordance with its FIFRA-approved label, alone, 
should be sufficient to protect the nation's waters from 
pesticide contamination. Yet, despite decades of regulating 
pesticide use solely under FIFRA, pesticides continue to be 
widely 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. Moreover, it is likely that an even greater percentage 
of waters may be contaminated by pesticides, as neither EPA nor 
the States regularly sample waters for the presence of 
commonly-used pesticides.
    If the regulatory framework in which pesticide applications 
were regulated under FIFRA but not the Clean Water Act (which 
this legislation seeks to restore) was sufficiently protective 
for the nation's waters, then why are pesticides currently 
detected in 97 percent of streams in both agricultural and 
urban areas?
    Similarly, supporters of H.R. 935 have argued that 
application of Clean Water Act to pesticide-use is excessively 
burdensome, will cause significant delays in pesticide use 
(including a corresponding impact on the nation's food supply 
or public health), or will be used as a tool to ban the overall 
use of pesticides. Yet, despite repeated requests for 
information, we are unaware of any specific example where 
application of the Clean Water Act requirements (over the past 
two years) has prevented a pesticide applicator from performing 
their valuable services. Similarly, we are unaware of any 
instance where the Clean Water Act has been used to ban the use 
of pesticides.
    We believe that the Clean Water Act provides sensible and 
complimentary benefits to the nation's efforts to protect water 
quality by ensuring that an appropriate amount of pesticides 
are being applied at appropriate times, and by providing a 
mechanism to monitor any localized adverse impacts of 
pesticides in a particular watershed.
    We also believe that the Environmental Protection Agency 
(EPA) and the States have done an admirable job of 
consolidating the requirements of FIFRA and the Clean Water Act 
in a way that, during the last two years of implementation, has 
imposed no known impediment to pesticide applicators from 
providing their services to both agricultural and public health 
communities.
    And, finally, we believe that Federal and State data make 
it clear that application of pesticides in compliance with 
FIFRA, alone, was insufficient to protect waterbodies from 
being contaminated by pesticides; so, if we care about water 
quality, returning to that regulatory structure (as would occur 
with passage of H.R. 935) would seem unadvisable.
    For these reasons, we oppose H.R. 935.

                    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 (NAWQA) 
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) most recent National Summary of State 
Information,\2\ States report that approximately 16,819 miles 
of rivers and streams, 1,766 square miles of bays and 
estuaries, and 260,342 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 two source of water quality 
impairment in the state, with 437 specific waterbodies being 
impaired for 40 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://www.epa.gov/waters/ir/index.html.
---------------------------------------------------------------------------
    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, in 2011, pesticides were 
detected in 73 percent of all potable groundwater samples taken 
by the agency, including 76 percent of samples taken from 
schools and daycare facilities (pesticides detected in 281 of 
372 samples), 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/fs/2008/3094/pdf/fs2008-3094.pdf)
    \4\See U.S. Department of Agriculture, Pesticide Data Program--
Annual Summary, Calendar Year 2011. (http://www.ams.usda.gov/)
---------------------------------------------------------------------------
    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 manmade 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 continue be 
detected in treated waters in the distribution system, as is 
demonstrated in the data collected by the U.S. Department of 
Agriculture's Pesticide Data Program.
    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 modem 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 Pesticide General Permit, EPA would be the 
regulatory authority in 4 states (ID, MA, and NH), the District of 
Columbia, and all U.S. Territories (except the U.S. Virgin Islands). 
The remaining 46 states would implement their own regulatory authority; 
however, expectations are that many 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 local 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, or that 
the use of a particular product is appropriate in every 
situation.
    It is simply incorrect to say that applying a FIFRA-
approved pesticide in accordance with its labeling requirement 
is a surrogate for protecting water quality--as the application 
of a FIFRA-approved pesticide, generally, does not take into 
consideration the localized impact on water quality. This 
fundamental distinction was highlighted 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).
---------------------------------------------------------------------------
    While no hearings were held on H.R. 935 in the 113th 
Congress, at a previous hearing\9\ 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 question the adequacy of 
this risk assessment process and its current ability to provide 
this protection based on several concerns.
---------------------------------------------------------------------------
    \9\See Joint Hearing before the Subcommittee on Nutrition and 
Horticulture, Committee on Agriculture and the Subcommittee on Water 
Resources and Environment, Committee on Transportation and 
Infrastructure, entitled Hearing to Consider Reducing the Regulatory 
Burdens Posed by the Case, National Cotton Council v. EPA (6th Cir. 
2009) and to Review Related Draft Legislation, First Session, Serial 
No. 112-10 (February 16, 2011).
---------------------------------------------------------------------------
    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 which 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 success rate 
of FIFRA which H.R. 935 seeks to reinstate.
    Second, we recognize that EPA, in developing its 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 are warranted where the 
intended discharge of a pesticide is into a pesticide-impaired 
waterbody. We are concerned, however, that under H.R. 935, 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.
    In addition, we are concerned that industry-sponsored 
claims that all registered pesticides have been thoroughly 
assessed through EPA's-risk-assessment process are unfounded, 
and that EPA has allowed pesticides to enter the marketplace 
that have not undertaken a full risk-assessment through its 
conditional registration process.
    Under the conditional registration process, EPA can 
authorize the use of new active ingredient pesticides for an 
unspecified period of time during which the pesticide 
registrant can test the pesticide and generate the data 
necessary for full FIFRA registration. While the intent of this 
provision was to provide authority to the agency to allow the 
use of new pesticides to address special situations, such as 
public health emergencies, when this authority improperly used 
or tracked,\10\ untested (or under-tested) pesticides can 
become widely used without a full understanding of the 
implications of these pesticides to human health or the 
environment. According to one outside survey of this program, 
approximately 65 percent of more than 16,000 pesticides 
currently in use were first approved using conditional 
approvals. Some of these pesticides remain in use, years after 
their initial conditional approval, without ever having 
undergone a complete FIFRA registration and risk-assessment.
---------------------------------------------------------------------------
    \10\In March 2013, the Natural Resources Defense Council issued a 
report, entitled Superficial Safeguards: Most Pesticides are Approved 
by Flawed EPA Process, which expressed concern with EPA's use and 
management of its conditional registration program. In this report, the 
authors highlight specific examples where pesticides were allowed to 
enter the marketplace, despite a lack of detailed information about 
their impact to human health and the environment, and these products 
continue to remain in the marketplace, years later, without requiring 
full registration of these pesticides. (www.nrdc.org/health/pesticides/
files/flawed-epa-approval-process-IB.pdf)
---------------------------------------------------------------------------
    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,\11\ 
ethylbenzene,\12\ styrene,\13\ toluene,\14\ and vinyl 
chloride.\15\
---------------------------------------------------------------------------
    \11\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.
    \12\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 or kidney 
problems. EPA has established a public health goal of 0.7 mg/
L2 for the presence of ethylbenzene in drinking water.
    \13\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/L2 for the presence of styrene in drinking water.
    \14\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/
L2 for the presence of toluene in drinking water.
    \15\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.
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    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. 935.

                      EPA 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 which attempted to minimize the 
impacts of the permit to existing pesticide operators, while at 
the same time, attempted to minimize the adverse impacts of 
pesticides on U.S. waters,
    In June 2010, EPA proposed a draft NPDES Pesticide General 
Permit, and accepted public comment and held three public 
hearings on the draft permit. On October 31, 2011, the agency 
issued its final Pesticide General Permit (PGP), which took 
effect immediately upon publication.
    Generally speaking, the PGP is designed to improve water 
quality by minimizing discharges of pesticides to waters of the 
United States. The PGP provides Clean Water Act protections for 
the discharge of pesticides (biological pesticides and chemical 
pesticides that leave a residue) under the following use 
activities: (1) mosquito and other flying insect pest control; 
(2) weed and algae pest control; (3) animal pest control; and 
(4) forest canopy pest control. Consistent with FIFRA, the PGP 
also requires that pesticides be applied consistent with their 
FIFRA labeling requirements to be covered by the Clean Water 
Act permit protections.
    In accordance with the Clean Water Act, no permit is 
required for the discharge of pesticides that do not reach the 
waters of the United States (e.g. typical household use of 
pesticides, or land application of pesticides that do not reach 
jurisdictional waters), nor for agricultural stormwater and 
irrigation return flows.
    For those pesticide applications that are covered by the 
Clean Water Act, the PGP does provide additional protective 
measures beyond the FIFRA labeling requirements, again, with 
the goal of minimizing the release of pesticides into U.S. 
waters.
    First, the PGP requires permittees to minimize pesticide 
discharges through the use of pest management measures and 
monitor for and report any adverse impacts of pesticide use. 
For certain high-volume pesticide applicators, the PGP also 
requires the use of ``integrated pest management'' techniques 
(IPM),\16\ which should reduce the amount of pesticides being 
discharged into U.S. waters.
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    \16\FIFRA defines IPM as a ``sustainable approach to managing pests 
by combining biological, cultural, physical, and chemical tools is 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 (GA0-01-815 (2001)).
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    The PGP also requires certain permittees to maintain 
records on their use of pesticides, and to provide an annual 
report to EPA that generally describes the amount, location, 
and use of pesticides during the previous calendar year.
    For a significant number of pesticide applicators, permit 
coverage under the PGP is obtained by filing an electronic 
``notice of intent'' with the agency.
    As noted earlier, any pesticide applicator who complies 
with the terms of the 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.

        TWO-YEAR IMPLEMENTATION OF THE PESTICIDE GENERAL PERMIT

    Prior to the implementation of the Pesticide General 
Permit, several organizations and Congressional witnesses\17\ 
suggested that application of the Clean Water Act to pesticide 
application would result in serious public health and economic 
hardships. Claims ranged from the inability of agricultural and 
forestry management operators to apply necessary pesticides, to 
threatening local mosquito spraying operations that control 
various mosquito-borne illnesses (e.g. West Nile Virus), to job 
losses associated with complying with the terms of the PGP, to 
an outbreak of frivolous lawsuits associated with pesticide 
applications.
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    \17\See Joint Hearing before the Subcommittee on Nutrition and 
Horticulture, Committee on Agriculture and the Subcommittee on Water 
Resources and Environment, Committee on Transportation and 
Infrastructure, entitled Hearing to Consider Reducing the Regulatory 
Burdens Posed by the Case, National Cotton Council v. EPA (6th Cir. 
2009) and to Review Related Draft Legislation, First Session, Serial 
No. 112-10 (February 16, 2011).
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    Yet, in the two year period where the PGP has been in 
place, we are unaware, despite repeated requests to both EPA 
and the States, where any of these claims have materialized. 
Moreover, we are not aware of any specific instance where the 
application of the Clean Water Act to pesticide application has 
prevented a pesticide applicator from performing their 
services, nor are we aware of any effort by outside groups to 
use the PGP as a tool to ban the use of pesticides.
    In short, the sky has not fallen, as some were claiming 
would occur. In the intervening two years, farmers and forestry 
operators have successfully managed two growing seasons under 
the PGP, including the most recent 2013 season for which USDA 
has forecast a record crop yield for corn, and a significant 
increase in production for soybeans. In addition, public health 
officials throughout the country were able to address outbreaks 
from mosquito-borne illnesses, while at the same time, 
complying with the sensible requirements of both the Clean 
Water Act and FIFRA.
    Yet, if H.R. 935 were to be enacted, many of the water 
quality and public health benefits provided by the Clean Water 
Act would be lost.
    For example, it is the Clean Water Act, and not FIFRA, that 
directs pesticide applicators to minimize the amount of 
pesticides that are being applied to or near U.S. waters 
through the use of pesticide management plans and integrated 
pest management techniques.
    It is also the Clean Water Act, and not FIFRA, that is 
requiring pesticide applicators to monitor for and report any 
adverse impacts that result from pesticide spraying or use.
    It is also the Clean Water Act, and not FIFRA, that 
requires pesticide applicators to keep records on where and how 
many pesticides are being applied at or near U.S. waters. In 
our view, this will be critical information for determining why 
so many U.S. waters remain impaired by pesticides, and what can 
be done to minimize or eliminate this ongoing contamination of 
our nation's waters.
    Again, if H.R. 935 were to be enacted, we would return to a 
regulatory structure that has resulted in widespread 
contamination of our rivers, streams, groundwater, and drinking 
water sources by pesticides.

                               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. While some have 
suggested that FIFRA provides adequate legal authority to 
address these impacts, the fact remains that, to date, it has 
not. Yet, all that is contemplated under H.R. 935 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 are opposed to H.R. 935.

                                   Timothy H. Bishop.
                                   Grace F. Napolitano.
                                   Jerrold Nadler.
                                   Donna F. Edwards.
                                   Eddie Bernice Johnson.
                                   Elizabeth H. Esty.

                                  
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