USA moves to restrict EPA actions on pesticides

With a 219-196 vote, the House has approved legislation, H.R. 2354, that would restrict EPA's ability to act in several key areas, including pesticide suspensions and cancellations related to endangered species protections, pesticide product brand names and Clean Water Act (CWA) permits for pesticide use on or near water.

The restrictions were included in the FY12 Interior and Environment Appropriations bill, which funds EPA, among other agencies.

The bill includes language that would amend the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) and the CWA to exempt FIFRA-compliant pesticides from requiring a National Pollutant Discharge Elimination System (NPDES) permit under the CWA.

Pesticide stakeholders see the permit as a large and unnecessary time and cost burden, given the protections already afforded by FIFRA, and have been seeking a legislative fix.

The appropriations bill language is essentially the same as that contained in stand-alone legislation (H.R. 872) approved by the House. That bill is now in the Senate where Sens. Boxer (D-Calif.) and Cardin (D-Md.) have placed a hold on it.

The committee report accompanying the appropriations bill says that requiring NPDES permits for pesticide use "would have far-reaching implications and move beyond the intended application of the Clean Water Act."

An amendment offered by Rep. Calvert (R-Calif.) and adopted by voice vote, also addresses a significant concern for pesticide stakeholders — restrictions on pesticide use to protect endangered and threatened species.

EPA has been consulting with federal wildlife agencies regarding the impacts of a number of pesticides on endangered and threatened species. In one case, dealing with Pacific salmon and steelhead, the National Marine Fisheries Service (NMFS) is examining the impacts of 37 pesticides on 28 species. So far, it has issued four biological opinions (BiOps) covering 24 of the pesticides.

NMFS has found that some of the pesticides jeopardize the continued existence of one or more species and/or their critical habitat. In the BiOps, it recommends a number of steps to address that jeopardy.

For the first BiOp, covering chlorpyrifos, diazinon and malathion, in April 2010, EPA asked the affected registrants — Dow AgroSciences, Cheminova and Makhteshim Agan of North America — to voluntarily accept certain restrictions on the use of their products, including buffer zones. They refused and are challenging the validity of the BiOp in federal court.

More than a year later, EPA still has not decided how it will respond to the lack of voluntary compliance, but has indicated that cancelling the pesticides in question is an option.

However, Rep. Calvert's amendment would preclude that option. It states: "None of the funds made available by this Act may be used to modify, cancel, or suspend the registration of a pesticide registered or reregistered under section 3 or 4 of (FIFRA) in response to a final biological opinion or other written statement issued under section 7(b) of the Endangered Species Act of 1973."