Bergeson & Campbell, P.C. serves small, medium, and large pesticide product registrants and other stakeholders in the agricultural and biocidal sectors, in virtually every aspect of pesticide law, policy, science, and regulation.

By Susan M. Kirsch

On May 24, 2017, the U.S. House of Representatives passed H.R. 953, the Reducing Regulatory Burdens Act of 2017, by 256-165 vote.  H.R. 953, which is similar to bills introduced in the past three congresses, would overturn a 2009 U.S. Court of Appeals for the Sixth Circuit decision requiring Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits for pesticide spraying activities into, over, or near waters.  The legislation would eliminate NPDES permitting for pesticide spraying that complies with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Proponents of the legislation assert that the addition of CWA regulation is duplicative, burdensome, and costly for industry without resulting in any additional environmental benefits.  Opponents argue that the bill would strip clean water protections for waters already listed as impaired for pesticides.  Championed by Representative Bob Gibbs (R-OH), the recent vote received significant bipartisan support, with twenty-five Democrats voting in support of the bill.  Senators Claire McCaskill (D-MO) and Mike Crapo (R-ID) introduced companion legislation in the Senate (S. 340), which currently awaits action by the Committee on Environment and Public Works.  The prospects for a Senate vote are mixed in light of the number of confirmations in the queue for political appointees, as well as big ticket legislative priorities, such as health care and tax reform.  If legislation is enacted, it would only apply to the four states (Idaho, New Hampshire, New Mexico, and Massachusetts), tribal lands, and other federally managed areas that are governed by the federal NPDES permit.  Forty-six states administer state versions of pesticide permits.  Mmany states would be expected to phase out permitting if the federal requirement is eliminated, however.

More information regarding CWA NPDES issues is available on our blog under key word NPDES.


 

By Susan M. Kirsch and Lisa M. Campbell

On February 21, 2017, the Northwest Environmental Advocates (NWEA) filed a Clean Water Act (CWA) lawsuit in the U.S. District Court for the Western District that involves a number of pesticide active ingredients in addition to other chemicals.  The lawsuit seeks to compel the U.S. Environmental Protection Agency’s (EPA) response to NWEA’s 2013 Petition for Rulemaking to Update the Water Quality Criteria for Toxics in the State of the Washington (NWEA v. EPA, No.: 2:17-cv-00263).  NWEA asserts that Washington’s aquatic life water quality criteria (ALC) and human health water quality criteria (HHC) for many chemicals that are classified as “toxic pollutants” are outdated and inadequate.  The chemicals at issue include the pesticide active ingredients acrolein, carbaryl, copper, diazinon, demeton, malathion, and methoxychlor.  NWEA alleges that Washington’s continued use of outdated criteria violates the CWA and poses a risk to species listed as threatened or endangered under the Endangered Species Act (Act), specifically Chinook Salmon and Southern Resident orca whales.

Under the CWA, states develop and adopt water quality criteria and are required on a triennial basis to review and revise or develop new criteria if appropriate to protect designated uses (e.g., recreation, wildlife protection).  As part of this triennial review process, states are required to consider any recommended new or revised quality criteria published by EPA.  States may adopt the criteria that EPA publishes, modify EPA’s criteria to reflect site-specific conditions, or adopt different criteria based on other scientifically-defensible methods.  Criteria are a component of water quality standards that inform the development of total maximum daily load (TMDL) calculations, discharge limits in permits, and management of nonpoint sources of pollution, including agricultural run-off.  If state criteria are inadequate for the protection of designated uses, EPA may step-in to issue updated criteria, and can be compelled to promulgate criteria by citizen suit action. 

NWEA alleges that Washington has failed to adopt HHC or ALC for several toxic pollutants since 1992.  In November 2016, EPA published a final rule updating Washington’s HHC for toxics.  81 Fed. Reg. 85417.  NWEA asserts that the revised HHC do not address the full spectrum of HHC, as updates for arsenic, dioxin, and thallium were not included.  NWEA also argues that updated HHC do not alleviate the ongoing risk to aquatic life from Washington’s inadequate ALC.  EPA has not responded to NWEA’s complaint.

It is unclear how EPA will respond to NWEA’s suit.  Often a state will work simultaneously to develop its own criteria that will meet EPA approval.  Registrants associated with the pesticides at issue should prepare for potentially forthcoming proposals of more stringent criteria.  The proposal and promulgation of new criteria is a lengthy process and requires public notice and comment.  It may well be at least two years before either EPA or Washington issues proposed updates for ALC.  A compilation of the latest EPA recommended ALC is accessible here.  The criteria values in the table provide some indication of the direction that may be taken in future updates.  


 

By Susan M. Kirsch

President Trump’s February 28, 2017, Executive Order (E.O.) directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to rescind and replace the Clean Water Rule (CWR) is the latest development in the attempt to resolve the long-standing question of which surface waters and wetlands may be federally regulated and subjected to permitting under the Clean Water Act (CWA).  Critics of the CWR assert that it would have drastically expanded the reach of the CWA and created regulatory uncertainty around land features and water features that were not previously considered WOTUS, such as dry creek beds, ditches, and isolated wetlands.  Since 2011, pesticide applications into, over, or near WOTUS are permitted under the CWA National Pollutant Discharge Elimination System (NPDES) Program due to a 2009 U.S. Court of Appeals for the Sixth Circuit ruling.  Agricultural producers and pesticide applicators have opposed the permitting largely on the grounds that it is duplicative and unnecessary to regulate pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Although the CWR would have arguably expanded the scope of the waters requiring pesticide permitting, the replacement or elimination of the CWR will not end NPDES requirements for pesticides.  Opponents continue to push for legislation that would eliminate all CWA permitting for FIFRA-compliant pesticide applications.  More details on the NPDES permit for pesticides is available in our blog item EPA Issues Final 2016 NPDES Pesticide General Permit.

Additional information on the anticipated fate of WOTUS, as well as a summary and comparison of some of the key concepts and provisions within the CWR are available in our memorandum What’s Next for “Waters of the U.S.” (WOTUS)?