CONGRESSWOMAN ELISE STEFANIK
On Tuesday, May 24, 2016, the House will likely begin consideration of H.R. 897, the Zika Vector Control Act, under a closed rule. H.R. 897 was introduced on February 11, 2015 by Rep. Bob Gibbs (R-OH), and was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Agriculture. The Committee on Agriculture ordered the bill reported, by voice vote, on March 19, 2015. The House failed to pass the bill under suspension of the rules by a vote of 262 to 159 on May 17, 2016.
H.R. 897 clarifies Congressional intent regarding regulation of the use of pesticides for control of exotic diseases such as Zika virus and West Nile virus, as well as for other lawful uses in or near navigable waters. Specifically, this legislation amends the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Water Pollution Control Act to prohibit the Environmental Protection Agency (EPA) or a state from requiring a permit under the Clean Water Act for a discharge from a point source into navigable waters of a pesticide authorized for sale, distribution, or use under FIFRA, or a residue resulting from the application of the pesticide. Point source pollution is waste discharged from a distinct place, such as a pipe, channel, or tunnel.
The bill establishes exemptions for the following discharges containing a pesticide or pesticide residue: (1) a discharge resulting from the application of a pesticide in violation of FIFRA that is relevant to protecting water quality, if the discharge would not have occurred but for the violation or the amount of pesticide or pesticide residue contained in the discharge is greater than would have occurred without the violation; (2) storm water discharges regulated under the National Pollutant Discharge Elimination System (NPDES); and (3) discharges regulated under NPDES of manufacturing or industrial effluent or treatment works effluent and discharges incidental to the normal operation of a vessel, including a discharge resulting from operations concerning ballast water held in ships to increase stability or vessel biofouling prevention.
Numerous mosquito control districts from across the country, faced with already tight budgets, have warned of operational disruptions of varying degrees because of the legal issues and increased costs associated with EPA’s unnecessary and duplicative permitting requirement. Any disruption will expose a large portion of the population to mosquitos that may potentially be carrying dangerous exotic diseases, such as Zika virus or West Nile virus. Hospitalization and rehabilitation costs, loss of productivity, decrease in tourism, and demonstrably negative impacts on horse and livestock production are only a small part of the costs that, while difficult to quantify, will further strain public resources.
FIFRA governs the sale and use of pesticides in the U.S. through registration and labeling, in order to “protect human health and the environment from unreasonable adverse effects of pesticides.” FIFRA requires all pesticides be labeled indicating approved uses and restrictions. The objective of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s water.” It does this through prohibiting the discharge of a pollutant without a National Pollutant Discharge Elimination System (NPDES) permit.
In 30 years of administering the CWA, the EPA had not required an NPDES permit for the application of a pesticide when the pesticide is applied in a manner consistent with FIFRA. In the 1990s, citizen suits began being filed contending that an NPDES permit is necessary when applying a FIFRA-permitted product into a body of water. This resulted in numerous court decisions that created confusion regarding pesticide use under the CWA.
A 2006 EPA rule codified the long-standing interpretation that the application of a FIFRA-approved pesticide did not require an NPDES permit. However, this rule was vacated in 2009 by the Sixth Circuit Court of Appeals, which in turn required the EPA to develop and implement a new NPDES permitting process under the CWA to cover pesticide use. The new permitting process has increased the administrative and monetary burden on pesticide applicators, sometimes imposing as much as $50,000 in compliance costs annually for small businesses and local governments.
This legislation, which is consistent with EPA’s 2006 rule, eliminates the NPDES permit requirement for the application of pesticides authorized under FIFRA.
 See CRS Report “Pesticide Use and Water Quality: Are the Law Complimentary or in Conflict?” January 28, 2016 at 2.
 See House Report 113-467 at 2-3.
 Id. at 3.
 Id. at 4.
The Congressional Budget Office (CBO) estimates that enacting this legislation would have no significant effect on the federal budget.
For questions or further information please contact Robert Goad with the House Republican Policy Committee by email or at 6-1831.