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Senate Permit Negotiations Break Down


Posted Date: 
October 31, 2011
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Jeremy P. Jacobs, E&E reporter

Last-minute Senate negotiations to delay court-ordered permits for some pesticide users appear to have broken down at the end of last week, meaning U.S. EPA will have to begin issuing the new permits immediately.

At issue is a 2009 federal appeals court ruling in National Cotton Council v. EPA, which said EPA must issue and require permits for pesticide users who spray over water. The new permit requirement is set to take effect tomorrow, and EPA has said it will comply with that deadline.

In March, the House passed H.R. 872, which would undo the National Cotton Council decision. Once it got to the Senate, though, Sens. Barbara Boxer (D-Calif.) and Ben Cardin (D-Md.) put a hold on it.

Boxer and Cardin's staffs have been working with Senate Agriculture Chairwoman Debbie Stabenow (D-Mich.) and ranking member Pat Roberts (R-Kan.) to find a compromise.

Roberts has been adamant that the new permits would place an unnecessary economic burden on farmers. Boxer, the chairwoman of the Senate Environment and Public Works Committee, and Cardin have argued that more research needs to be done on pesticides contaminating the country's waterways.

Last week, the two sides appeared to be close to a deal. In exchange for a two-year moratorium on the new permit requirement, a national survey would be conducted on pesticide contamination to help determine if such a permit is necessary.

On Friday, however, Roberts pulled the plug on that agreement.

In a statement, Roberts said "attempts to use a moratorium to leverage a controversial and overly broad study that threatens agriculture production will only increase confusion facing our farmers, ranchers and state and local health agencies."

The Kansan added that the compromise would "simply kick the can down the road" and said he won't support it when a "real solution," H.R. 872, is on the table.

A Democratic Senate source familiar with the negotiations said the two sides had been close to an agreement for several days.

"We were prepared and have been prepared to support this two-year moratorium and a study that gives us some valuable information about pesticides and water quality," the source, who is not authorized to speak on the record, said.

Republicans, however, were seeking to expand the agreement, the source said, seeking to roll back other provisions of the Clean Water Act.

It still remains to be seen how, exactly, EPA will implement the new permit requirement. Some lobbyists and Capitol Hill staffers have suggested EPA will only begin issuing the permits this week but delay enforcing them until 2012. That scenario would seem to make sense because it would be impossible for the agency to both issue the new permits and enforce whether they are being used starting the same day.

The National Cotton Council decision has been controversial since it was handed down in 2009. The court said EPA's current pesticides regulation, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), does not sufficiently protect waterways from pesticide contamination. The court ordered EPA to issue new permits under its Clean Water Act authority.

Farmers and the agriculture industry have strongly disagreed with the ruling, arguing that the new permit is duplicative because pesticide users already follow instructions on pesticide labels.

Environmentalists, however, supported the ruling and pointed to studies that found high levels of pesticides in water bodies.

H.R. 872 would amend FIFRA to prohibit EPA from issuing permits for pesticide use. It would also amend the Clean Water Act so EPA could not use it to issue pesticide permits. It passed the House in a 292-130 March vote.

Jeremy P. Jacobs, E&E reporter