Sen. Kay Hagan introduced a bill last week to clarify that pesticide applications are regulated by Congress under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and by EPA under the Clean Water Act (CWA.) A U.S. Sixth Circuit Court of Appeals ruling in 2009 determined that applications over or near water required a CWA discharge permit even if the applicator was in compliance with product label requirements as required under FIFRA. The court effectively took the authority from Congress and gave it to EPA. It is surprising that it is taking so long for Congress to get the authority back. Sen. Hagan should receive credit for introducing legislation just like she did in the previous Congress to bring this to resolution.
Pesticides regulated under FIFRA should according to common sense not be subject to double regulation under the Clean Water Act. But that is currently the case following the Sixth Circuit’s decision. Answering a challenge by environmental groups, the courts vacated EPA’s rule from 2007 that exempted FIFRA-regulated pesticides from CWA permit requirements. The court ruled that the CWA does not preclude pesticides applications from the National Pollutant Discharge Elimination System (NPDES) permitting requirement. Sen. Hagan’s bill would restore Congress’s authority to solely regulate pesticides under FIFRA.
It has been noted by Congress and others that the scope of FIFRA and the CWA intersect and that farmers have been caught in the middle. The responsibility for clarifying the scope of both laws falls to Congress. It should be noted that clarifying the situation does not mean weakening environmental protections, but simply that a common sense solution to an issue of Congressional authority has been achieved. If Sen. Hagan’s legislation succeeds, she should receive credit for helping to resolve this controversy.