House Report 112-43, Part 2 - 112th Congress (2011-2012)
March 29, 2011, As Reported by the Agriculture Committee

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House Report 112-43 - REDUCING REGULATORY BURDENS ACT OF 2011




[House Report 112-43]
[From the U.S. Government Printing Office]


112th Congress  }                                       {  Rept. 112-43
  1st Session   }        HOUSE OF REPRESENTATIVES       {        Part 2
=======================================================================
 
                REDUCING REGULATORY BURDENS ACT OF 2011 

                                _______
                                

 March 29, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

             Mr. Lucas, from the Committee on Agriculture, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 872]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Agriculture, to whom was referred the bill 
(H.R. 872) to amend the Federal Insecticide, Fungicide, and 
Rodenticide Act and the Federal Water Pollution Control Act to 
clarify Congressional intent regarding the regulation of the 
use of pesticides in or near navigable waters, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill as amended do 
pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Reducing Regulatory Burdens Act of 
2011''.

SEC. 2. USE OF AUTHORIZED PESTICIDES.

  Section 3(f) of the Federal Insecticide, Fungicide, and Rodenticide 
Act (7 U.S.C. 136a(f)) is amended by adding at the end the following:
          ``(5) Use of authorized pesticides.--Except as provided in 
        section 402(s) of the Federal Water Pollution Control Act, the 
        Administrator or a State may not require a permit under such 
        Act for a discharge from a point source into navigable waters 
        of a pesticide authorized for sale, distribution, or use under 
        this Act, or the residue of such a pesticide, resulting from 
        the application of such pesticide.''.

SEC. 3. DISCHARGES OF PESTICIDES.

  Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 
1342) is amended by adding at the end the following:
  ``(s) Discharges of Pesticides.--
          ``(1) No permit requirement.--Except as provided in paragraph 
        (2), a permit shall not be required by the Administrator or a 
        State under this Act for a discharge from a point source into 
        navigable waters of a pesticide registered under the Federal 
        Insecticide, Fungicide, and Rodenticide Act, or the residue of 
        such a pesticide, resulting from the application of such 
        pesticide.
          ``(2) Exceptions.--Paragraph (1) shall not apply to the 
        following discharges containing a pesticide or pesticide 
        residue:
                  ``(A) A discharge resulting from the application of a 
                pesticide in violation of a provision of the Federal 
                Insecticide, Fungicide, and Rodenticide Act that is 
                relevant to protecting water quality, if--
                          ``(i) the discharge would not have occurred 
                        but for the violation; or
                          ``(ii) the amount of pesticide or pesticide 
                        residue contained in the discharge is greater 
                        than would have occurred without the violation.
                  ``(B) Stormwater discharges regulated under 
                subsection (p).
                  ``(C) Municipal or industrial discharges regulated 
                under this section, including--
                          ``(i) manufacturing or industrial effluent;
                          ``(ii) treatment works effluent; and
                          ``(iii) discharges incidental to the normal 
                        operation of a vessel, including a discharge 
                        resulting from ballasting operations or vessel 
                        biofouling prevention.''.

                           Brief Explanation

    The Reducing Regulatory Burdens Act of 2011, H.R. 872, 
amends the Federal Insecticide, Fungicide, and Rodenticide Act 
and the Federal Water Pollution Control Act to clarify 
Congressional intent regarding the regulation of application of 
pesticides or residue of pesticides in or near navigable 
waters.

                    Purpose and Need for Legislation


The Federal Insecticide, Fungicide, and Rodenticide Act

    The Federal Insecticide, Fungicide, and Rodenticide Act 
(``FIFRA'') is a regulatory statute that governs the sale and 
use of pesticides in the United States through the registration 
and labeling of such products. Its objective is to protect 
human health and the environment from unreasonable adverse 
effects of pesticides, taking into account the costs and 
benefits of various product uses. Pesticides regulated under 
FIFRA include insecticides, herbicides, fungicides, 
rodenticides, and other designated substances. The 
Environmental Protection Agency (``EPA'') reviews scientific 
data submitted by chemical manufacturers on toxicity and 
behavior in the environment to evaluate risks and exposure 
associated with a product's use.
    FIFRA prohibits the sale of any pesticide unless it is 
registered and labeled indicating approved uses and 
restrictions. It is a violation of Federal law to use such a 
chemical in a manner that is inconsistent with the label 
instructions. If a registration is granted, EPA makes a finding 
that the chemical ``when used in accordance with widespread and 
commonly recognized practice it will not generally cause 
unreasonable adverse effects on the environment.'' (7 
U.S.C.136a(c)(5)(D).) EPA then specifies the approved uses and 
conditions of use of the pesticide, and this is required to be 
explained on the product label.

The Clean Water Act

    The objective of the Federal Water Pollution Control Act 
(commonly known as the ``Clean Water Act'' or the ``CWA'') is 
to restore and maintain the chemical, physical, and biological 
integrity of the nation's waters. The primary mechanism for 
achieving this objective is the CWA's prohibition on the 
discharge of any pollutant without a National Pollutant 
Discharge Elimination System (``NPDES'') permit. EPA has the 
authority to regulate the discharge of pollutants either 
through general permits or through individual permits. NPDES 
permits specify limits on what pollutants may be discharged 
from point sources and in what amounts. Under the CWA, 47 
states and territories have been authorized to implement NPDES 
permits and enforce permits. EPA manages the Clean Water Act 
program in the remaining states and territories.
    NPDES permits are the basic regulatory tool of the CWA. EPA 
or an authorized state may issue compliance orders, or file 
civil suits against those who violate the terms of a permit. In 
addition, in the absence of Federal or state action, 
individuals may bring a citizen suit in United States district 
court against those who violate the terms of an NPDES permit, 
or against those who discharge without a valid permit.

Litigation

    In over 30 years of administering the CWA, EPA had never 
required an NPDES permit for the application of a pesticide, 
when the pesticide is applied in a manner consistent with FIFRA 
and its regulations. While the CWA contains a provision 
granting citizen suits against those who violate permit 
conditions or those who discharge without an NPDES permit, 
FIFRA has no citizen suit provision. As a result, beginning in 
the late 1990s, a series of citizen lawsuits were filed by 
parties, contending that an NPDES permit is necessary when 
applying a FIFRA-regulated product over, into, or near 
waterbodies. These cases generated several Court of Appeals 
decisions that created confusion and concern among pesticide 
users regarding the applicability of the CWA with regard to 
pesticide use.
    As the litigation continued, concern and confusion grew 
among farmers, forest landowners, and public health officials, 
prompting EPA to issue interim, and later final, interpretive 
guidance in August 2003 and January 2005, and then to undertake 
a rulemaking to clarify and formalize the Agency's 
interpretation of the CWA as it applied to pesticide use. The 
EPA rule was finalized in November 2006 (71 Fed. Reg. 68483 
(Nov. 27, 2006)), and was the culmination of a three year 
participatory rulemaking process that began with the interim 
interpretive statement in 2003 and involved two rounds of 
public comment.
    The 2006 EPA rule codified EPA's long-standing 
interpretation that the application of chemical and biological 
pesticides for their intended purpose and in compliance with 
pesticide label restrictions is not a discharge of a 
``pollutant'' under the CWA, and therefore, that an NPDES 
permit is not required. The rule clearly defined specific 
circumstances in which the use of pesticides in accordance with 
all relevant requirements under FIFRA is not a CWA ``discharge 
of a pollutant,'' explaining in detail the rationale for the 
Agency's interpretation.
    When the rule was finalized, environmental groups, as well 
as farm and pesticide industry groups, filed petitions for 
review of the rule in several Federal Circuit Courts of Appeal. 
The petitions were consolidated in the Sixth Circuit. The Sixth 
Circuit ultimately vacated the rule on January 7, 2009 in 
National Cotton Council v. EPA (553 F.3d 927; hereinafter, 
National Cotton Council), concluding that the final rule was 
not a reasonable interpretation of the CWA's permitting 
requirements. The court rejected EPA's contention that, when 
pesticides are applied over, into, or near waterbodies to 
control pests, they are not considered pollutants as long as 
they comply with FIFRA, and held that NPDES permits are 
required for all pesticide applications that may leave a 
residue in water.
    EPA estimated that the ruling would affect approximately 
365,000 pesticide applicators that perform some 5.6 million 
pesticide applications annually. The court's decision, which 
would apply nationally, was to be effective seven days after 
the deadline for rehearing expired or seven days after a denial 
of any petition for rehearing. Parties had until April 9, 2009 
to seek rehearing.
    On April 9, 2009, the government chose not to seek 
rehearing in the National Cotton Council case. The government 
instead filed a motion to stay issuance of the court's mandate 
for two years to provide EPA time to develop an entirely new 
NPDES permitting process to cover pesticide use. As part of 
this, EPA needed to propose and issue a final NPDES general 
permit for pesticide applications, for states to develop 
permits, and for EPA to provide outreach and education to the 
regulated community. Industry groups filed a petition seeking 
en banc review, asking the full Sixth Circuit to reconsider the 
decision from the three-judge panel.
    On June 8, 2009, the Sixth Circuit granted EPA a two-year 
stay of the court's mandate, in response to their earlier 
request. The Sixth Circuit denied the industry groups' petition 
for rehearing in August 2009. The court-ordered deadline for 
EPA to promulgate a new permitting process for pesticides under 
the Clean Water Act was April 9, 2011. On March 3, 2011, EPA 
filed another request for an extension with the court. On March 
28, 2011, the Sixth Circuit granted an extension through 
October 31, 2011. The Court's extension only temporarily 
postpones the need for an NPDES permit for pesticide use, and 
does not obviate the need for this legislation.
    Two petitions were filed with the U.S. Supreme Court in 
December 2009 by representatives of the agriculture community 
and the pesticide industry, requesting that the U.S. Supreme 
Court review the National Cotton Council case. A number of 
parties, including numerous Members of Congress, filed amicus 
briefs with the U.S. Supreme Court, in support of or opposition 
to the petitions. On February 22, 2010, the U.S. Supreme Court 
denied the petitioners' request without comment.

EPA development of a new permitting process to cover pesticide use

    EPA continues to move ahead with developing a new NPDES 
permitting process to cover pesticide use. The permit covers 
four pesticide uses: (1) mosquito and other flying insect pest 
control; (2) aquatic weed and algae control; (3) aquatic 
nuisance animal control; and (4) forest canopy pest control. It 
does not cover terrestrial applications to control pests on 
agricultural crops or forest floors, and does not cover 
activities exempt from permitting under the CWA (irrigation 
return flow, agricultural stormwater runoff) and discharges 
that will require coverage under an individual permit, such as 
discharges of pesticides to waterbodies that are considered 
impaired under CWA Sec. 303(d) for that discharged pesticide.

Implications

    The Committee has received testimony and other information 
on the implications of the Sixth Circuit's holding in the 
National Cotton Council case, and the new permitting process 
that EPA has to develop under the CWA as a result of that 
holding, on state and local agencies, mosquito control 
districts, water districts, pesticide applicators, agriculture, 
forest managers, and other stakeholders. On February 16, 2011, 
the Subcommittee on Water Resources and Environment of the 
House Committee on Transportation and Infrastructure held a 
joint hearing with the Nutrition and Horticulture Subcommittee 
of the House Committee on Agriculture to consider means for 
reducing the regulatory burdens posed by the case, National 
Cotton Council v. EPA (6th Cir. 2009), and to consider related 
draft legislation.
    Despite being limited to four categories of pesticide uses, 
EPA's new general permit for covered pesticides stands to be 
the single greatest expansion of the permitting process in the 
history of the NPDES program. EPA has estimated that it can 
expect approximately 5.6 million covered pesticide applications 
per year by approximately 365,000 applicators--virtually 
doubling the number of entities currently subject to NPDES 
permitting. (U.S. EPA, Fact Sheet for 2010 Public Notice of: 
Draft National Pollutant Discharge Elimination System (NPDES) 
Pesticides General Permit (PGP) for Discharges from the 
Application of Pesticides to or over, including near Waters of 
the U.S., at 14, available at http://www.epa.gov/npdes/pubs/
proposed_pgp_fs.pdf.)
    With this unprecedented expansion comes real and tangible 
burdens for EPA and the states that will have to issue the 
permits, those whose livelihoods depend on the use of 
pesticides, and even everyday citizens going about their daily 
lives.
    EPA has said that it will be able to conform its current 
process to meet the Sixth Circuit's mandate. Even so, much of 
the responsibility of developing and issuing general permits 
falls on the states. Forty-five states (and the Virgin Islands) 
will face increased financial and administrative burdens in 
order to comply with the new permitting process. In a time when 
too many states are being forced to make difficult budgetary 
cuts, the nation cannot afford to impose more financial 
burdens.
    The expanded permitting process also imposes enormous 
burdens on pesticide users who encompass a wide range of 
individuals from state agencies, city and county 
municipalities, mosquito control districts, water districts, 
pesticide applicators, farmers, ranchers, forest managers, 
scientists and others. The new and duplicative permitting 
process will increase both the administrative difficulty and 
costs for pesticide applicators to come into compliance with 
the law. Compliance will no longer mean simply following 
instructions on a pesticide label. Instead, applicators will 
have to navigate a complex process of identifying the relevant 
permit, filing with the regulatory authority a valid notice of 
intent to comply with the permit and having a familiarity with 
all of the permit's conditions and restrictions. Along with 
increased administrative burdens comes an increased monetary 
burden. Estimates are that the cost associated with the EPA 
permit scheme to small businesses could be as high as $50,000 
per business, annually.
    In addition to the costs of coming into compliance, 
pesticide users will be subject to an increased risk of 
litigation and exorbitant fines. Applicators not in compliance 
face fines of up to $37,500 per day per violation, not 
including attorney's fees. Given the fact that a large number 
of applicators have never been subject to NPDES and its 
permitting process, even a good faith effort to be in 
compliance could fall short. Moreover, the CWA allows for 
private actions against individuals who may or may not have 
committed a violation. Thus, while EPA may exercise its 
judgment and refrain from prosecuting certain applicators, they 
remain vulnerable to citizen suits. Unless Congress acts, 
hundreds of thousands of farmers, foresters, and public health 
pesticide users will go into the next season under threat of 
lawsuits once the Sixth Circuit's April 9, 2011 deadline 
passes.
    It is not only pesticide regulators and applicators who 
will be affected by new permitting requirements. Rather, the 
Sixth Circuit's decision will affect everyday citizens, who 
rely on the benefits provided by pesticides and their 
responsible application. Pesticide use is an essential part of 
agriculture. Imposing a burdensome and duplicative permitting 
process on our nation's farmers threatens their ability to 
continue to provide the country with a safe and reliable food 
supply. Many family farmers and small applicators lack the 
resources to ensure compliance with a cumbersome and detailed 
permit scheme. Moreover, for those farmers who are able to 
comply, delays that are inherent in permitting schemes are ill-
suited for prompt pest control actions necessary in 
agriculture. Failure to apply a pesticide soon after a pest is 
first detected could result in recurring and greater pest 
damage in subsequent years if a prolific insect were to become 
established in plant hosts. The Secretary of Agriculture, Hon. 
Thomas J. Vilsack, has said that a permitting system under the 
CWA for pesticide use ``is ill-suited to the demands of 
agricultural production.'' (Letter, Hon. Thomas J. Vilsack, 
Secretary of Agriculture, to Hon. Lisa P. Jackson, 
Administrator, U.S. Environmental Protection Agency, Subject: 
The National Cotton Council of America, et al., v. United 
States Environmental Protection Agency (Mar. 6, 2009)).
    Forest landowners also will suffer under the new permit 
scheme. EPA's permit scheme will result in a reduction in the 
use of forest pest control as a forest management tool, 
resulting in the acceleration of tree mortality and general 
decline in overall forest health. It will also erect barriers 
for the control of pests, such as Gypsy Moth and Forest Tent 
Caterpillar. This may result in a higher incidence of 
preventable tree kills and defoliated landscapes.
    Finally, the Sixth Circuit's holding could have significant 
implications for public health. The National Centers for 
Disease Control officially recognizes the following as a 
partial list of mosquito-borne diseases--Eastern Equine 
Encephalitis, Japanese Encephalitis, La Crosse Encephalitis, 
St. Louis Encephalitis, West Nile Virus, Western Equine 
Encephalitis, Dengue Fever, Malaria, Rift Valley Fever, and 
Yellow Fever. (Centers for Disease Control and Prevention, 
http://www.cdc.gov/ncidod/diseases/list_mosquitoborne.htm.) 
EPA's permit program poses the possibility of critical delays 
in emergency responses to insect and disease outbreaks and will 
divert resources from controlling environmental pests to 
litigation and administrative burdens.

Development of legislation in response to the Sixth Circuit decision

    As a result of concerns raised by Federal, state, local, 
and private stakeholders regarding the interrelationship 
between FIFRA and the CWA and the concerns posed by the new and 
duplicative permitting process under the CWA, the House 
Committee on Transportation and Infrastructure and House 
Committee on Agriculture sought technical assistance from EPA 
to draft very narrow legislation targeted only at addressing 
the Sixth Circuit's holding in National Cotton Council and 
return the state of pesticide regulation to the status quo--
before the courts got involved. H.R. 872 is based on the 
technical assistance that EPA provided to the Committees, and 
is intended to be consistent with EPA's final rule from 
November 2006. The bill amends FIFRA and the CWA to eliminate 
the requirement of an NPDES permit for applications of 
pesticides authorized for sale, distribution, or use under 
FIFRA.

                       Summary of the Legislation


Section 1. Short title

    Section 1 of the bill designates the title of the bill as 
the ``Reducing Regulatory Burdens Act of 2011.''

Section 2. Use of registered pesticides

    Section 2 of the bill amends section 3(f) of FIFRA (7 
U.S.C. 136a(f)) by adding at the end a new paragraph (5). 
Paragraph (5) provides that, except as provided in section 
402(s) of the Federal Water Pollution Control Act (the CWA), 
the Administrator or a state may not require a permit under the 
CWA for a discharge from a point source into navigable waters 
of a pesticide registered under FIFRA, or the residue of such a 
pesticide, resulting from the application of such pesticide. 
The exceptions provided in section 402(s) of the CWA are 
provided in new subsection (s)(2), discussed further below.
    The net effect of this provision is to exempt, from the 
CWA's NPDES permitting process, a discharge from a point source 
into navigable waters of a pesticide registered under FIFRA, or 
the residue of such a pesticide, resulting from the application 
of the pesticide, where the pesticide is used for its intended 
purpose and the use is in compliance with pesticide label 
requirements.
    The Committee has received testimony on how EPA uses its 
full regulatory authority under FIFRA to ensure that pesticides 
do not cause unreasonable adverse effects on human health and 
the environment, including our nation's water resources. The 
regulatory restrictions imposed by EPA under FIFRA directly 
control the amount of pesticide available for transport to 
navigable waters, either by reducing the absolute amount of 
pesticide applied, or by changing application conditions to 
minimize transport and make transport of applied pesticide less 
likely.
    As long as a pesticide is authorized for sale, 
distribution, or use under FIFRA, the pesticide is used for its 
intended purpose, and the use is in compliance with pesticide 
label requirements, there is no need to require the user of the 
pesticide to apply for and obtain an NPDES permit for that use. 
The Committee believes that requiring an NPDES permit in such 
circumstances is unnecessary and would impose duplicative and 
wasteful regulatory burdens on EPA and state permitting 
agencies, and on pesticide users.
    It is the intent of the Committee that, regarding 
biological pesticides including those produced by plants, H.R. 
872 shall not apply to plants because they are not a point 
source. The exemption under FIFRA requires a discharge from a 
point source.

Section 3. Discharges of pesticides

    Section 3 of the bill amends section 402 of the Federal 
Water Pollution Control Act (33 U.S.C. 1342) by adding at the 
end a new subsection (s).
    New subsection (s)(1) provides that, except as provided in 
paragraph (2) of subsection (s), the Administrator or a state 
shall not require a permit under the CWA for a discharge from a 
point source into navigable waters of a pesticide authorized 
for sale, distribution, or use under FIFRA, or the residue of 
such a pesticide, resulting from the application of such 
pesticide. This provision is aimed at mirroring the provision 
added to FIFRA under section 2 of the bill.
    This provision, like that in section 2 of the bill, is 
intended to exempt from the CWA's NPDES permitting process, 
subject to the exceptions in paragraph (2), a discharge from a 
point source into navigable waters of a pesticide authorized 
for sale, distribution, or use under FIFRA, or the residue of 
such a pesticide, resulting from the application of the 
pesticide, where the pesticide is used for its intended purpose 
and the use is in compliance with pesticide label requirements.
    As noted earlier, as long as a pesticide is authorized for 
sale, distribution, or use under FIFRA, the pesticide is used 
for its intended purpose, and the use is in compliance with 
pesticide label requirements, then the Committee sees no need 
to require the user of the pesticide to apply for and obtain an 
NPDES permit for that use. The Committee believes that 
requiring an NPDES permit in such circumstances is unnecessary 
and would impose duplicative and wasteful regulatory burdens on 
EPA and state permitting agencies, and on pesticide users.
    The Committee adopted a technical change to the language of 
paragraph (1) in a Committee meeting held on March 9, 2011, to 
clarify that any pesticide authorized for sale, distribution, 
or use under FIFRA is covered by this exemption.
    Paragraph (2) of new subsection (s) provides certain 
exceptions to the exemption from NPDES permitting provided in 
paragraph (1). The categories of discharges listed in 
paragraphs (2)(A) and (B) are not exempted and therefore 
require an NPDES permit if those discharges contain a pesticide 
or residue of a pesticide. None of the exceptions in paragraph 
(2) are intended to expand the permitting authority of EPA or a 
state to require a permit under the CWA or to narrow or negate 
the exemption in paragraph (1) from the CWA's NPDES permitting 
process of a discharge from a point source into navigable 
waters of a pesticide authorized for sale, distribution, or use 
under FIFRA, or the residue of such a pesticide resulting from 
the application of the pesticide, where the pesticide is used 
for its intended purpose and the use is in compliance with 
pesticide label requirements.
    The exception in subparagraph (A) of paragraph (2) applies 
to circumstances where there has been an application of a 
pesticide in violation of a provision of FIFRA relevant to 
protecting water quality, and as a result of that application 
of the pesticide in violation of FIFRA, there has been a 
discharge of a pesticide or residue of a pesticide that either 
would not have occurred but for the violation of FIFRA, or the 
amount of pesticide or residue of a pesticide contained in the 
discharge is greater than would have occurred without the 
violation of FIFRA. A violation of FIFRA is considered to be 
relevant to protecting water quality only if that violation 
results in the occurrence of a discharge of a pesticide or 
residue of a pesticide from an application of the pesticide, 
and that discharge either would not have occurred but for the 
violation, or the amount of pesticide or residue of a pesticide 
contained in the discharge is greater than would have occurred 
without the violation.
    Hence, a violation of FIFRA not involving or affecting a 
discharge into navigable waters of a pesticide or residue of a 
pesticide from an application of the pesticide (e.g., a 
violation of a FIFRA requirement that a person mixing a 
pesticide must wear protective clothing) does not trigger 
permitting requirements under the CWA and is not a violation of 
the CWA. Similarly, a violation of FIFRA, where a discharge of 
a pesticide or residue of a pesticide did not occur even with 
the FIFRA violation, or the amount of pesticide or residue of a 
pesticide contained in the discharge is not increased as 
compared to what would have occurred without the FIFRA 
violation, does not trigger permitting requirements under the 
CWA and is not a violation of the CWA. Enforcement under the 
CWA under the circumstances presented in paragraph (2)(A)(i) or 
(ii) would require proof of both a CWA violation and a FIFRA 
violation.
    It is the intent of the Committee that, regarding 
biological pesticides including those produced by plants, H.R. 
872 shall not apply to plants because they are not a point 
source. The exemption requires a discharge from a point source. 
Moreover, section 402 of the CWA only requires an NPDES permit 
for a point source discharge.
    The bill is not intended to exempt from NPDES permitting 
under CWA section 402 certain discharges of waste streams 
merely because they may contain a pesticide or residue of a 
pesticide as a component in them. Therefore, the exceptions in 
subparagraphs (B) and (C) of paragraph (2) identify those types 
of discharges that remain subject to NPDES permitting under CWA 
section 402, even if those discharges may contain in them a 
pesticide or residue of a pesticide as a component. The 
categories of discharges described in subparagraphs (B) and (C) 
are intended to encompass all of the types of discharges, 
which, if they do contain as a component a pesticide or residue 
of a pesticide, would continue to require an NPDES permit.
    The exception in subparagraph (B) of paragraph (2) applies 
to stormwater discharges regulated under subsection (p) of CWA 
section 402. Discharges regulated under subsection (p) include 
stormwater discharged from certain municipal storm-water 
systems, certain areas associated with industrial activity, 
certain construction sites, and certain other impervious areas.
    The exception in subparagraph (C) of paragraph (2) applies 
to the following other discharges regulated under subsection 
(p) of CWA section 402: manufacturing or industrial effluent; 
treatment works effluent; and discharges incidental to the 
normal operation of a vessel, including a discharge resulting 
from ballasting operations or vessel biofouling prevention.
    ``Manufacturing or industrial effluent'' under subparagraph 
(C)(i) is intended to cover point source discharges of 
wastewater from facilities with manufacturing or industrial 
processes, where those discharges contain pollutants that are 
pesticides. This may include wastewater discharges containing 
pesticides from pesticide and other agricultural chemical 
manufacturing and formulating facilities, and facilities, 
including utilities that use biocides to prevent fouling of 
lines, mains, pipes, or cooling towers.
    ``Treatment works effluent'' under subparagraph (C)(ii) is 
intended to cover point source discharges of wastewater from 
treatment works, where those discharges contain pollutants that 
are pesticides. The term ``treatment works'' is defined in 
section 212 of the CWA.
    ``Discharges incidental to the normal operation of a 
vessel, including a discharge resulting from ballasting 
operations or vessel biofouling prevention'' under subparagraph 
(C)(iii) is intended to cover point source discharges from 
vessels that are subject to permitting under EPA's NPDES 
vessels program that regulates incidental discharges from the 
normal operation of vessels, where those discharges contain 
pollutants that are pesticides. The vessels currently subject 
to permitting under the NPDES vessels program consist of all 
non-recreational, non-military vessels of 79 feet or greater in 
length which discharge into navigable waters.
    Recreational vessels as defined in section 502(25) of the 
CWA are exempted from NPDES permitting in section 402(r) of the 
CWA. It is the Committee's intent to leave undisturbed this 
exemption from NPDES permitting for recreational vessels in 
section 402(r). In addition, vessels of the Armed Forces, as 
defined in section 312(a)(14) of the CWA, are not subject to 
permitting under the NPDES vessels program. With the exception 
of ballast water discharges, non-recreational vessels less than 
79 feet in length, and all commercial fishing vessels, 
regardless of length, currently are not subject to permitting 
under the NPDES vessels program, although they may be in the 
future when a moratorium from regulation established by Public 
Law 111-215 ends on December 18, 2013.
    The intent of the Committee is for sections 2 and 3 of the 
bill to address the Sixth Circuit's holding in the National 
Cotton Council case and return the state of pesticide 
regulation to the status quo, before any courts ruled on the 
applicability of the CWA to pesticide applications regulated 
under FIFRA. The bill H.R. 872 eliminates the requirement of an 
NPDES permit for the application of pesticides authorized for 
sale, distribution, or use under FIFRA.

                        Committee Consideration


                              I. HEARINGS

    The Subcommittee on Nutrition and Horticulture of the 
Committee on Agriculture and the Subcommittee on Water 
Resources and Environment of the Committee on Transportation 
and Infrastructure held a public joint hearing on February 16, 
2011 to consider reducing the regulatory burdens posed by the 
case National Cotton Council v. EPA (6th Cir. 2009) and to 
review related draft legislation.
    Members of the Subcommittees heard testimony and considered 
draft legislation targeted at addressing the 6th Circuit Court 
ruling under which, pesticide users would have to obtain a 
duplicate permit under the Clean Water Act for the use of 
pesticides. Pesticides are used by farmers, ranchers, forest 
managers, mosquito control districts, and water districts. 
Pesticide applications are highly regulated under the Federal 
Insecticide, Fungicide, Rodenticide Act. The order of the court 
would require pesticide applications that are not covered by a 
National Pollutant Discharge Elimination System (NPDES) permit 
to be subject to a fine of up to $37,500 per day per violation. 
In addition to the costs of compliance, pesticide users will be 
subject to an increased risk of litigation under the citizen 
suit provision of the CWA. During the hearing, testimony was 
heard from six witnesses on two panels.

                           II. FULL COMMITTEE

    The Committee on Agriculture met, pursuant to notice, with 
a quorum present, on March 9, 2011, to consider H.R. 872, the 
Reducing Regulatory Burdens Act of 2011. Mr. Lucas offered an 
opening statement, as did Ranking Member Peterson, Mrs. 
Schmidt, Mr. Baca, and Mr. Gibbs.
    The bill, H.R. 872 was placed before the Committee for 
consideration and without objection a first reading of the bill 
was waived and it was opened for amendment at any point. The 
Chairman offered an Amendment in the Nature of a Substitute to 
the bill, H.R. 872 and counsel provided a brief explanation of 
that amendment.
    There being no further amendments, the Peterson motion to 
approve the Amendment in the Nature of a Substitute to H.R. 
872, was adopted by a voice vote.
    By a voice vote, the Peterson motion to report the bill 
H.R. 872, as amended favorably to the House with the 
recommendation that it do pass was adopted.
    Chairman Lucas then advised Members that pursuant to the 
rules of the House of Representatives that Members have 2 
calendar days to file such views with the Committee. No Members 
came forth with intent to file additional views.
    Without objection, staff was given permission to make any 
necessary clerical, technical or conforming changes to reflect 
the intent of the Committee.
    Chairman Lucas thanked all the Members and adjourned the 
meeting subject to the call of the chair.

                   Reporting the Bill--Rollcall Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, H.R. 872 was reported by voice 
vote with a majority quorum present. There was no request for a 
recorded vote.

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee on Agriculture's 
oversight findings and recommendations are reflected in the 
body of this report.

           Budget Act Compliance (Sections 308, 402, and 423)

    The provisions of clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives and section 308(a)(1) of the 
Congressional Budget Act of 1974 (relating to estimates of new 
budget authority, new spending authority, new credit authority, 
or increased or decreased revenues or tax expenditures) are not 
considered applicable. The estimate and comparison required to 
be prepared by the Director of the Congressional Budget Office 
under clause 3(c)(3) of rule XIII of the Rules of the House of 
Representatives and sections 402 and 423 of the Congressional 
Budget Act of 1974 submitted to the Committee prior to the 
filing of this report are as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 11, 2011.
Hon. Frank D. Lucas, 
Chairman, Committee on Agriculture,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 872, the Reducing 
Regulatory Burdens Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

H.R. 872--Reducing Regulatory Burdens Act of 2011

    H.R. 872 would prohibit the Environmental Protection Agency 
(EPA) and states authorized to issue National Pollutant 
Discharge Elimination System (NPDES) permits from requiring a 
permit for some discharges of pesticides authorized for use 
under the Federal Insecticide, Fungicide, Rodenticide Act 
(FIFRA). Under the bill, public and private entities would no 
longer need to obtain an NPDES permit for discharges of 
pesticides from point sources except in cases where the 
application of the pesticide would not fall under FIFRA, or in 
cases where the discharge is regulated as a stormwater, 
municipal, or industrial discharge under the Clean Water Act. 
Under a recent court ruling, the requirement to obtain an NPDES 
permit will become effective on April 9, 2011; at that time, 
pesticide applications not covered by an NPDES permit will be 
subject to a fine.
    Based on information from EPA, CBO estimates that enacting 
this legislation would have no significant impact on the 
federal budget. Any administrative savings to EPA that might 
result from issuing fewer permits would be negligible because 
EPA has delegated the authority to issue most NPDES permits to 
states.
    Pay-as-you-go procedures do not apply to H.R. 872 because 
the bill would not affect direct spending or revenues.
    H.R. 872 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goals and objectives of this legislation are to 
amend the Federal Insecticide, Fungicide, and Rodenticide Act 
and the Federal Water Pollution Control Act to clarify 
Congressional intent regarding the regulation of the use of 
pesticides in or near navigable waters, and for other purposes.

                   Constitutional Authority Statement

    The Committee finds the Constitutional authority for this 
legislation in Article I, section 8, clause 18, that grants 
Congress the power to make all laws necessary and proper for 
carrying out the powers vested by Congress in the Constitution 
of the United States or in any department or officer thereof.

                        Committee Cost Estimate

    Pursuant to clause 3(d)(2) of rule XIII of the Rules of the 
House of Representatives, the Committee report incorporates the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to sections 402 and 423 of the 
Congressional Budget Act of 1974.

                      Advisory Committee Statement

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                Applicability to the Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Public Law 
104-1).

                       Federal Mandates Statement

    The Committee adopted as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act (Public Law 104-4).

  Earmark Statement Required by Clause 9 of Rule XXI of the Rules of 
                        House of Representatives

    H.R. 872 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(e), 9(f), or 9(g) of rule XXI of the Rules of the 
House of Representatives.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT

           *       *       *       *       *       *       *



SEC. 3. REGISTRATION OF PESTICIDES.

  (a) * * *

           *       *       *       *       *       *       *

  (f) Miscellaneous.--
          (1) * * *

           *       *       *       *       *       *       *

          (5) Use of authorized pesticides.--Except as provided 
        in section 402(s) of the Federal Water Pollution 
        Control Act, the Administrator or a State may not 
        require a permit under such Act for a discharge from a 
        point source into navigable waters of a pesticide 
        authorized for sale, distribution, or use under this 
        Act, or the residue of such a pesticide, resulting from 
        the application of such pesticide.

           *       *       *       *       *       *       *

                              ----------                              


FEDERAL WATER POLLUTION CONTROL ACT

           *       *       *       *       *       *       *


TITLE IV--PERMITS AND LICENSES

           *       *       *       *       *       *       *


            NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

  Sec. 402. (a) * * *

           *       *       *       *       *       *       *

  (s) Discharges of Pesticides.--
          (1) No permit requirement.--Except as provided in 
        paragraph (2), a permit shall not be required by the 
        Administrator or a State under this Act for a discharge 
        from a point source into navigable waters of a 
        pesticide registered under the Federal Insecticide, 
        Fungicide, and Rodenticide Act, or the residue of such 
        a pesticide, resulting from the application of such 
        pesticide.
          (2) Exceptions.--Paragraph (1) shall not apply to the 
        following discharges containing a pesticide or 
        pesticide residue:
                  (A) A discharge resulting from the 
                application of a pesticide in violation of a 
                provision of the Federal Insecticide, 
                Fungicide, and Rodenticide Act that is relevant 
                to protecting water quality, if--
                          (i) the discharge would not have 
                        occurred but for the violation; or
                          (ii) the amount of pesticide or 
                        pesticide residue contained in the 
                        discharge is greater than would have 
                        occurred without the violation.
                  (B) Stormwater discharges regulated under 
                subsection (p).
                  (C) Municipal or industrial discharges 
                regulated under this section, including--
                          (i) manufacturing or industrial 
                        effluent;
                          (ii) treatment works effluent; and
                          (iii) discharges incidental to the 
                        normal operation of a vessel, including 
                        a discharge resulting from ballasting 
                        operations or vessel biofouling 
                        prevention.

           *       *       *       *       *       *       *