Introduction

The USA has experienced a proliferation in the last several years not only of environmental laws, but also regulatory actions by federal agencies. In particular conflicts between the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) have become more apparent and widespread with actions stemming from new EPA regulations, as well as judicial acitivism which has given new interpretations to laws, which most had thought were well understood for decades. As a result, farmers and the chemical industry are in a period of stalemate with regard to investment and hiring decisions, waiting for the EPA to provide further regulatory direction to attempt to resolve these conflicts.

Summary of USA laws

This report provides background on the emerging conflict over interpretation and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they were enacted, there had been little apparent conflict between them. But their relationship has recently been challenged in several arenas, including the federal courts and regulatory proceedings of the Environmental Protection Agency (EPA). In this report, a brief discussion of the two laws is followed by a review of the major litigation of interest. EPA’s efforts to clarify its policy in this area are discussed, including a regulation issued in 2006 that was subsequently vacated by a federal court, as well as possible options for EPA and Congress to address the issues further.

FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. The CWA creates a comprehensive regulatory scheme to control the discharge of pollutants into the nation’s waters; the discharge of pollutants without a permit violates the act.

Several federal court cases testing the relationship between FIFRA and the CWA have drawn attention since 2001. In two cases concerning pesticide applications by agriculture and natural resources managers, the U.S. Ninth Circuit Court of Appeals held that CWA permits are required for at least some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters. It held in a third case that no permit was required for the specific pesticide in question. Most recently, the U.S. Second Circuit Court of Appeals ruled in March that a CWA discharge permit for mosquito control activities is not required before April 2011, when EPA is expected to issue a CWA general permit covering such activities.

Several of the rulings alarmed a range of stakeholders who fear that requiring CWA permits for pesticide application activities would present significant costs, operational difficulties, and delays. Pressed to clarify its long-standing principle that CWA permits are not required for using FIFRA-approved products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental activists strongly opposed EPA’s actions, arguing that FIFRA does not protect water quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders, such as pesticide applicators, endorsed the rule, although some would like to see its application broadened to include pesticide drift. The EPA rule was challenged, and in January 2009 a federal court vacated the regulation. Several industry groups petitioned for a rehearing by the full Sixth Circuit Court of Appeals, while the federal government asked the court to stay the order vacating the exemption for two years (until April 2011), to provide time for working with states to develop a general permit for pesticide applications covered by the decision. The court denied the request for rehearing and granted the government’s request for a two-year delay. EPA proposed a draft general permit in June 2010. The Supreme Court declined to review the case.

Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. Legislation intended to nullify the 2009 federal court ruling has been introduced in the 111th Congress (H.R. 6087/S. 3735 and a third bill, H.R. 6273).

Editor note

This summary was taken from the Congressional Research Service Report RL32884 by Claudia Copeland