You Say Bureaucracy, We Say Protection: Undermining The Clean Water Act

While environmental issues have taken a back seat to economy all over the country, industry groups and their defenders in Congress are using this time to advance an agenda designed to erode many successful laws, such as Clean Water Act (CWA).

Recently, Senators Blanche Lincoln (D-AR) and Saxby Chambliss (R-GA) introduced a bill in the Senate, S3735, that, according to the Senators, is aimed at decreasing bureaucracy for crop producers, timber industry and mosquito control operators.  As reported by Beyond Pesticides, Senators Lincoln and Chambliss argue that because pesticides are registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) additional regulation under the Clean Water Act (CWA) is unnecessary.  The bill, however, would nullify the regulations of the Environmental Protection Agency’s (EPA) that require that pesticide applicators apply for National Pollutant Discharge Elimination System (NPDES) permits under CWA  before applying pesticides on or near surface waters.

Shall we raise our chemical cocktail glasses and cheer to our (ahem) good health?! ¡Salud!

Maybe not.

But the Senators persist in advocating for industry interests irrespective of the harm to public health.  “Subjecting our farmers, foresters, and ranchers to an additional layer of bureaucracy under the Clean Water Act was never Congress’ intent,” said Senator Lincoln.  Actually, by law, the goal of the Clean Water Act is to achieve ‘‘water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.’’ 1  And in fact, Congress enacted the CWA ‘‘to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’’ 2 Furthermore, EPA is empowered  by the CWA to meet those goals as the agency is given the authority of “preventing, reducing, or eliminating the pollution of the navigable waters and ground waters…”3

The sponsors of the Senator bill, as well as the related bill in the House, HR6087, would rather ignore the stated purpose of the CWA in favor of those who sponsor their campaigns. Sen. Lincoln stated that “[o]ur legislation is very simple: as long as a producer is complying with FIFRA, then no Clean Water Act permit will be required.”  Chambliss was heard to proclaim that “[o]nce again the EPA has overreached its authority, causing serious consequences [sic] our agriculture sector.”  Chambliss believes that “[b]y refusing to defend current law and its own reasonable regulations, the EPA is unfortunately in the position to place unnecessary, burdensome and duplicative permit requirements…”

Industry members, unsurprisingly, commended the proposed legislation, proclaiming that pesticides have been “successfully” regulated by FIFRA and that additional permitting requirements under the CWA is unnecessary, duplicative, and burdensome for farmers.

Others, however, beg to differ and question whether regulation of pesticides under FIFRA has in fact been “successful.”

Indeed, numerous environmental and health groups strongly disagree and for good reasons.  In a letter to Senator Lincoln, the groups urged the Senator to withdraw the proposed bill.  The letter reminded the Senator that the nation’s waters are in bad shape as a result of pesticides pollution and in need of permitting under CWA.  In other words, public health is at stake and action should be taken to protect it rather than water down those protections:

For decades our nation’s waterways have been polluted with hazardous pesticides and their degradates which impact aquatic populations of animals and plants, and decrease surface and drinking water quality. Results from the U.S. Geological Survey’s National Water‐Quality Assessment Program studies show that pesticides are widespread in streams and ground water sampled within agricultural and urban areas of the nation. Many of these pesticides accumulate in fish and other organisms, making their way up the food chain, to eventually be consumed by the American public. Recent studies find that government agencies may be underestimating children’s dietary exposure to pesticides and that they are a prime cause of attention deficit hyperactivity disorder, ADHD.  Stronger regulatory action is needed to ensure that our waters, food and health are adequately protected from all industrial and agricultural pollution.

And instead of additional bureaucracy, the groups argue that permitting under CWA complements rather than duplicates the pesticide registration reviews conducted by EPA under FIFRA.  Such reviews under FIFRA, as the letter details, only sets a general national standard that does not take into account conditions and specific vulnerabilities evaluated through the NPDES process.

The introduction of S3735, and a related bill in the House, HR6087, follows EPA’s June 2010 release of a draft general permit that would bring certain pesticide applicators within CWA’s NPDES permitting program.  This EPA’s action stems from a Sixth Circuit decision in which the Court of Appeals held that the language of the CWA is clear and that pesticide discharges into water are pollutants and require permitting under CWA.4 This ruling overturned the previous Bush administration policy that exempted pesticides from regulation under CWA, and instead applied the less stringent standards of FIFRA.

With the lame duck Congress session ahead, these bills will likely see little action from the outgoing Congress. When the new session begins, however, CWA and other environmental legislation may continue to be undermined with more new members interested in cutting the budget and/or advancing industry interests and fewer members committed to environmental protection define the new Congress.

The co-sponsors of the Senate bill include: Sen. John Barrasso [R, WY], Sen. Richard Burr [R, NC], Sen. Saxby Chambliss [R, GA], Sen. Michael Crapo [R, ID], Sen. Michael Enzi [R, WY], Sen. Charles Grassley [R, IA], Sen. Orrin Hatch [R, UT], Sen. Mike Johanns [R, NE], Sen. James Risch [R, ID], Sen. Pat Roberts [R, KS].

The co-sponsors of the House bill include: Rep. Spencer Bachus, Rep. Marsha Blackburn [R, TN-7], Rep. Dennis Cardoza [D, CA-18], Rep. Howard Coble [R, NC-6], Rep. Michael Conaway [R, TX-11], Rep. Samuel Graves [R, MO-6], Rep. Walter Herger [R, CA-2], Rep. Peter Hoekstra [R, MI-2], Rep. Walter Jones [R, NC-3], Rep. Steve King [R, IA-5], Rep. John Kline [R, MN-2], Rep. Cynthia Lummis [R, WY-0], Rep. Jerry Moran [R, KS-1], Rep. Sue Myrick [R, NC-9], Rep. Phil Roe [R, TN-1], Rep. Michael Simpson [R, ID-2], Rep. Adrian Smith [R, NE-3]

The co sponsors of the Senate bill include: Sen. John Barrasso [R, WY], Sen. Richard Burr [R, NC], Sen. Saxby Chambliss [R, GA], Sen. Michael Crapo [R, ID], Sen. Michael Enzi [R, WY], Sen. Charles Grassley [R, IA], Sen. Orrin Hatch [R, UT], Sen. Mike Johanns [R, NE], Sen. James Risch [R, ID], Sen. Pat Roberts [R, KS]

The co-sponsors of the House bill include: Rep. Spencer Bachus [R, AL-6], Rep. Marsha Blackburn [R, TN-7], Rep. Dennis Cardoza [D, CA-18], Rep. Howard Coble [R, NC-6], Rep. Michael Conaway [R, TX-11], Rep. Samuel Graves [R, MO-6], Rep. Walter Herger [R, CA-2], Rep. Peter Hoekstra [R, MI-2], Rep. Walter Jones [R, NC-3], Rep. Steve King [R, IA-5], Rep. John Kline [R, MN-2], Rep. Cynthia Lummis [R, WY-0], Rep. Jerry Moran [R, KS-1], Rep. Sue Myrick [R, NC-9], Rep. Phil Roe [R, TN-1], Rep. Michael Simpson [R, ID-2], Rep. Adrian Smith [R, NE-3]

  1. See National Cotton Council et al. v. EPA., 553 F.3d 927, 930 (6th Cir. 2009) (citing 33 U.S.C. § 1251(a)(2) ).
  2. Id.
  3. 33 U.S.C. 1252(a).
  4. See National Cotton Council et al. v. EPA., 553 F.3d 927 (6th Cir. 2009).