House Report 113-467, Part 2 - 113th Congress (2013-2014)
June 02, 2014, As Reported by the Agriculture Committee

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House Report 113-467 - REDUCING REGULATORY BURDENS ACT OF 2013




[House Report 113-467]
[From the U.S. Government Printing Office]


113th Congress                                            Rept. 113-467
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

======================================================================



 
                REDUCING REGULATORY BURDENS ACT OF 2013

                                _______
                                

  June 2, 2014.--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. 935]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Agriculture, to whom was referred the bill 
(H.R. 935) 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, report favorably thereon 
without amendment and recommend that the bill do pass.

                           Brief Explanation

    The Reducing Regulatory Burdens Act of 2013, H.R. 935, 
amends 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.

                            Purpose and Need


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, 46 
states have been authorized to implement NPDES permits and 
enforce permits. EPA manages the Clean Water Act program in the 
remaining states.
    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.
    In vacating the rule and requiring NPDES permits for 
pesticide applications, the Sixth Circuit substituted its own 
interpretation of how federal laws apply to the use of 
pesticides for EPA's longstanding interpretation of the laws, 
and overlaid a new permitting process that is duplicative of 
FIFRA's longstanding regulatory objectives. In the process, the 
Court undermined the traditional understanding of how the CWA 
interacts with other environmental statutes, particularly 
FIFRA, and judicially expanded the scope of CWA regulation 
further into areas and activities not originally envisioned or 
intended by Congress.
    As a result of the Court's decision, EPA was required to 
develop and implement a new and expanded NPDES permitting 
process under the CWA to cover pesticide use. EPA estimated 
that the ruling would affect approximately 365,000 pesticide 
applicators that perform some 5.6 million pesticide 
applications annually. (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; hereinafter, EPA Fact Sheet.) 
This virtually doubles the number of entities subject to NPDES 
permitting.
    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 federal 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 CWA 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.
    Two petitions were filed with the Supreme Court in December 
2009 by representatives of the agriculture community and the 
pesticide industry, requesting that the Supreme Court review 
the National Cotton Council case. A number of parties, 
including numerous Members of Congress, filed amicus briefs 
with the Supreme Court, in support of the petitions. Other 
parties filed amicus briefs in opposition to the petitions. On 
February 22, 2010, the Supreme Court denied the petitioners' 
request without comment.

EPA Development of a New Permitting Process to Cover Pesticide Use

    With a two-year stay of the Sixth Circuit's mandate in 
place, EPA moved 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 
is not intended to 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 section 303(d) for that 
discharged pesticide. The permitting process imposes 
administrative requirements on prospective pesticide users, 
including filing a notice of intent, other reporting and 
recordkeeping requirements, and in some cases monitoring and 
other requirements.

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 had 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 is the single 
greatest expansion of the permitting process in the history of 
the NPDES program. As already noted, EPA has estimated that 
approximately 5.6 million covered pesticide applications per 
year by approximately 365,000 applicators are affected by the 
Court's ruling, virtually doubling the number of entities that 
have been subject to NPDES permitting. (EPA Fact Sheet.)
    With this expansion come real and tangible requirements for 
EPA, the states that 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 had to establish a new permitting process to 
conform its NPDES permit program to meet the Sixth Circuit's 
mandate. Even so, much of the responsibility of developing and 
issuing general permits has fallen on the states. Forty-six 
states face increased financial and administrative burdens in 
order to comply with the new permitting process. Some states 
have estimated that creating a new NPDES permitting scheme for 
pesticide use in their state has cost their state hundreds of 
thousands of dollars. In a time when many states have to make 
difficult budgetary cuts, the Nation cannot afford more 
financial burdens.
    The expanded permitting process also imposes significant 
new requirements 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. Now that the permitting requirements 
are in effect, federal and state agencies are expending vital 
funds to initiate and maintain NPDES programs governing 
mosquito control, silvicultural, and other pesticide 
applications.
    The new permitting process has increased both the 
administrative difficulty and costs for pesticide applicators 
to come into compliance with the law. Compliance no longer 
means simply following instructions on a pesticide label. 
Instead, applicators 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. Some pesticide applicators also face 
significant monitoring, reporting, and recordkeeping costs 
complying with their permits.
    Along with increased administrative burdens comes an 
increased monetary burden. Estimates are that the cost 
associated with the EPA permit scheme to small businesses and 
some local governments could be as high as $50,000 each, or 
more, annually.
    In addition to the costs of coming into compliance, 
pesticide users are subject to an increased risk of litigation 
and large fines. Pesticide 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, the applicators 
remain vulnerable to citizen suits. Unless Congress acts, 
hundreds of thousands of farmers, foresters, and public health 
pesticide users will continue to operate under threat of 
lawsuits.
    It is not only pesticide regulators and applicators who are 
being affected by the new permitting requirements. Rather, the 
Sixth Circuit's decision affects every day citizens, who rely 
on the benefits provided by pesticides and their responsible 
application. Pesticide use is an essential part of agriculture. 
Imposing a duplicative and burdensome 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, Environmental Protection Agency, 
Subject: The National Cotton Council of America, et al. v. 
United States Environmental Protection Agency (Mar. 6, 2009)).
    Forest landowners also are impacted under the new permit 
scheme. The permitting requirements apply to and are an 
inhibition to the use of forest pest control as a forest 
management tool, with the result of accelerated tree mortality 
and a general decline in overall forest health. It erects 
barriers for the control of pests, such as gypsy moth and 
forest tent caterpillar. This may be resulting in a higher 
incidence of preventable tree kills and defoliated landscapes.
    Moreover, the Sixth Circuit's holding has 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 risk of critical delays in 
emergency responses to insect and disease outbreaks and is 
diverting resources from controlling environmental pests to 
administrative requirements, monitoring, and litigation.
    Mosquito control districts have reported that NPDES 
compliance costs are forcing many mosquito control programs, 
both large and small, to redirect control resources to comply 
with the regulatory requirements. Many districts have reduced 
operations because of administrative and monitoring costs and 
fears of increased liability and potentially ruinous litigation 
under the CWA associated with complying with the new, court-
mandated NPDES requirements. In some states, preventive 
mosquito control strategies such as comprehensive larviciding 
are being curtailed in order to redirect resources toward 
increased administrative and water monitoring costs. Commercial 
applicators historically serving rural communities and small 
municipalities are increasingly opting to cancel their programs 
out of fear of increased liability under the CWA. These reduced 
mosquito control operations have resulted in increased risk of 
vector-borne disease such as West Nile Virus.
    In 2012, the Centers for Disease Control and Prevention 
reported record-breaking outbreaks of mosquito-borne illnesses, 
such as West Nile Virus and Eastern Equine Encephalitis, around 
the Nation. In response to the outbreaks, numerous communities 
had to declare public health emergencies and undertook 
comprehensive mosquito spraying efforts. Some have suggested 
that the record-breaking outbreaks of mosquito-borne illnesses 
were at least in part the result of the new NPDES permit 
requirements and the resultant curtailment of preventive 
mosquito control measures. When the outbreaks occurred, 
emergency reactive control measures had to be implemented.

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 responding to 
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. 935 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.

                           Section by Section


Section 1. Short Title.

    Section 1 of the bill designates the title of the bill as 
the ``Reducing Regulatory Burdens Act of 2013.''

Section 2. Use of Authorized 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 (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 authorized for sale, distribution, or use 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 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 Committee received testimony in the 112th Congress 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 placed 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.
    Therefore, 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 imposes 
duplicative and wasteful regulatory requirements 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. 
935 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 of a pollutant.

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 imposes duplicative and wasteful regulatory requirements on 
EPA, state permitting agencies, and pesticide users.
    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 a residue of a pesticide as a component in those discharges. 
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 provide a backdoor way 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. 
935 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 of a pollutant.
    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 stormwater 
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 112-213 ends on December 18, 2014.
    The intent of the Committee is for sections 2 and 3 of the 
bill to reverse 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. H.R. 935 eliminates the requirement of an NPDES 
permit for the application of pesticides authorized for sale, 
distribution, or use under FIFRA.

                        Committee Consideration


                              I. HEARINGS

    In the 112th Congress, 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, and 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 13, 2014, to consider H.R. 935, 
Reducing Regulatory Burdens Act of 2013.
    By unanimous consent, the Subcommittee on Horticulture, 
Research, Biotechnology, and Foreign Agriculture was discharged 
from further consideration of H.R. 935, and the bill was placed 
before the Committee for consideration. Without objection, a 
first reading of the bill was waived and it was open for 
amendment at any point.
    Chairman Lucas, Mr. Peterson, Mr. King and Mr. Gibbs were 
recognized for statements. There being no amendments, Mr. 
Peterson was recognized to offer a motion that the bill H.R. 
935 be reported favorably to the House with recommendation that 
it do pass. The motion was subsequently approved by voice vote.
    The Committee then continued with other pending business, 
and at the conclusion of the meeting, Chairman Lucas advised 
Members that pursuant to the rules of the House of 
Representatives Members had 2 calendar days to file any 
supplemental or minority views with the Committee.
    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.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, H.R. 935 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 19, 2014.
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. 935, the Reducing 
Regulatory Burdens Act of 2013.
    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.
    Enclosure.

H.R. 935--Reducing Regulatory Burdens Act of 2013

    H.R. 935 would prohibit the Environmental Protection Agency 
(EPA) and states authorized to issue a permit under the 
National Pollutant Discharge Elimination system (NPDES) from 
requiring a permit for some discharges of pesticides authorized 
for use under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA). Under the bill, public and private 
entities would no longer need to obtain an NPDES permit for 
certain discharges of pesticides 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.
    Based on information from EPA, CBO estimates that enacting 
this legislation would have no significant effect 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. 935 because 
enacting the bill would not affect direct spending or revenues.
    H.R. 935 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.
    On November 4, 2013, CBO transmitted a cost estimate for 
H.R. 935, as ordered reported by the House Committee on 
Transportation and Infrastructure on October 29, 2013. The two 
versions of the legislation are similar, and the CBO cost 
estimates are the same.
    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 objections 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.

                        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. 935 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 Representatives.

                    Duplication of Federal Programs

    This bill does not establish or reauthorize a program of 
the Federal Government known to be duplicative of another 
Federal program, a program that was included in any report from 
the Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance. This bill eliminates a duplicative 
requirement of the NPDES permit program that is addressed under 
the EPA program that oversees the sale, use and distribution of 
pesticides under Section 3 of FIFRA.

                  Disclosure of Directed Rule Makings

    The Committee does not believe that the legislation directs 
an executive branch official to conduct any specific rule 
making proceedings within the meaning of 5 U.S.C. 551.

         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 authorized for sale, distribution, or use 
        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 of 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 in the discharge is 
                        greater than would have occurred 
                        without the violation.
                  (B) Stormwater discharges subject to 
                regulation under subsection (p).
                  (C) The following discharges subject to 
                regulation under this section:
                          (i) Manufacturing or industrial 
                        effluent.
                          (ii) Treatment works effluent.
                          (iii) Discharges incidental to the 
                        normal operation of a vessel, including 
                        a discharge resulting from ballasting 
                        operations or vessel biofouling 
                        prevention.

           *       *       *       *       *       *       *