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112TH CONGRESS REPT. 112–43 " ! HOUSE OF REPRESENTATIVES 1st Session 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. 


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‘‘(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 


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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 conVerDate Mar 15 2010 06:24 Mar 30, 2011 Jkt 065422 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR043P2.XXX HR043P2

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tention 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 § 303(d) for that discharged pesticide. 


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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/proposedlpgplfs.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. 


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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/listlmosquitoborne.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. 


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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 


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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. 


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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 


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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, nonrecreational 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 


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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. 


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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. 


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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, 


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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. 


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(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. 

* * * * * * * 

Æ 


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