Tamara Hinton (202) 225-0184
WASHINGTON – Today, Ranking Member Frank Lucas sent a letter to the Environmental Protection
Agency (EPA) Administrator, Lisa Jackson, and to U.S. Attorney General Eric Holder urging them to
petition the United States 6th Circuit Court of Appeals for a rehearing of a recent decision by the court. The decision vacates EPA’s 2007 rule exempting certain pesticide applications that are compliant with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the National Pollution Discharge Elimination System (NPDES) provisions of the Clean Water Act (CWA).
The court’s decision will require American farmers to obtain redundant permits for the application of all FIFRA-compliant biological pesticides whenever those pesticides might find their way into waters of the United States. FIFRA requires the EPA to register only pesticides that the agency has determined will not cause unreasonable effects on the environment.In essence, this decision is duplicative.
“If this decision stands, then it will require millions of applications for permits. The EPA is not equipped to handle that caseload, so there will not be a timely issuance of these required permits. As a result, farmers won’t be able to conduct their operations as they should. It will ultimately jeopardize their livelihoods. This decision penalizes EPA and it penalizes farmers. It’s bad for everyone,” said Ranking Member Frank Lucas.
Rep. Jean Schmidt (R-OH) co-signed the letter as Ranking Member of the Subcommittee on Horticulture and Organic Agriculture. The petition for a rehearing must be submitted before April 9, 2009.
The complete letter is included below:
March 19, 2009
The Honorable Lisa P. Jackson
U.S. Environment Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
The Honorable Eric H. Holder
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
Dear Ms. Jackson & Mr. Holder:
On January 7, 2009, the 6th Circuit Court of Appeals vacated EPA’s 2007 rule exempting certain pesticide applications that are compliant with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the National Pollution Discharge Elimination System (NPDES) provisions of the Clean Water Act (CWA). Due to the Court’s actions, farmers and the commercial applicators that serve them will enter into future growing seasons with threats of legal action unless the EPA takes appropriate legal action to appeal the decision before an en banc panel of the 6th Circuit Court of Appeals.
In the Final Rule, EPA interpreted CWA to exempt certain pesticide applications from the NPDES permit requirement. The rule stated a permit was not required for application of pesticides directly into, over, ornear waters of the U.S. (e.g., application to forest canopy), provided the application is in compliance with relevant FIFRA requirements. In these circumstances, EPA found that the pesticide application is not a discharge of "pollutant" as defined under the CWA because the pesticide is a useful product, not a "waste" when it is released from the application equipment. The CWA definition of "pollutant" includes "chemical waste" and "biological material," but does not include any other terms that might apply to pesticides. In vacating the rule, the Court held that if some pesticides enter waters of the U.S. as a result of pesticide application the application is a discharge of a "pollutant." An exception is made only for applications of aquatic chemical pesticide that "leaves no excess portions after performing its intended purpose." Further, the Court held there was an exception where pesticide residue remains following direct application of pesticides to the jurisdictional waters.
Although EPA’s rule focused on the application of pesticides into, over, or near waters, the panel extended its analysis to terrestrial applications. According to the Court, pesticide application is a discharge of a "pollutant" "from a point source" whenever pesticide enters waters and would not have entered waters "but for" the original application. In the Court’s words, "it is clear that but for the application of the pesticide, the pesticide residue and excess pesticide would not be added to the waters, therefore, the pesticide residue and excess pesticide are from a ‘point source.’”
By extending the Court’s decision to terrestrial applications, the Court has placed farmers and commercial applicators that serve them in legal jeopardy under the Clean Water Act’s citizen-action provisions. Unless EPA appeals the decision, farmers face the threat of lawsuits as EPA has no permitting system in place. Additionally, the Court’s decision can be construed to apply to non-agricultural/non-pesticide applications and emission, including spraying for mosquito control, vegetation management, and chemical deicing of roads and highways. The Court’s ruling is inconsistent with the intent of Congress and would drastically change decades of EPA regulatory practice. Due to the potentially significant ramifications of this Court decision to U.S. agriculture, I strongly urge you to file a petition for rehearing before the deadline of April 9.
Thank you for your prompt attention to this matter.
Frank D. Lucas, Jean Schmidt,
Ranking Member Ranking Member
Committee on Agriculture Subcommittee on
Horticulture & Organic Agriculture
Horticulture & Organic Agriculture