This potential has received attention in connection with implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Water Pollution Control Act (Clean Water Act, CWA). For the more than 30 years since Congress enacted FIFRA and the Clean Water Act, there had been little apparent direct conflict between them. However, EPA's interpretation and operating practice regarding the relationship between the two laws have recently been challenged in several arenas. This report provides background on the conflict over interpretation and implementation of FIFRA and the Clean Water Act. A brief discussion of the two laws is followed by a review of the major litigation of interest. EPA's efforts to clarify its policy in this area, its 2006 rule, and the 2009 federal court ruling are discussed, as well as possible options for EPA and Congress to further address the FIFRA-CWA issues. Despite EPA's efforts to streamline the permit and its applicability, the permit is controversial. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. To that end, it establishes a nationally uniform pesticide labeling system requiring the registration of all pesticides and herbicides sold in the United States, and requiring users to comply with conditions of use included on the national label. To that end, it creates a comprehensive regulatory scheme to control the discharge of waste and pollutants; the discharge of pollutants into waters of the United States without a permit violates the act. The Litigation

Five federal court cases testing the relationship between FIFRA and the CWA have drawn the most attention, three in the U.S. Court of Appeals for the Ninth Circuit in the West, concerning pesticide applications by agricultural and natural resource managers, and two in the Second Circuit Court of Appeals in the East, involving the use of pesticides by government and public health authorities for mosquito control. Two of the Ninth Circuit decisions have held that CWA permits are required for at least some activity involving the point source discharge of FIFRA-regulated pesticides over or into waters of the United States, and the third held that a permit was not required because the specific pesticide was not a chemical waste. The CWA permit considers local environmental conditions, which the FIFRA label does not. A final rule was promulgated in November 2006 but was vacated by a federal court in 2009, as described next. The rule added two specific circumstances that would be excluded from NPDES permit requirements, when the application complies with relevant requirements of FIFRA:
the application of pesticides directly to waters of the United States in order to control pests (e.g., to control mosquito larvae or aquatic weeds); and the application of pesticides to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States in order to target the pests effectively. Instead, the government petitioned the court for a two-year stay of the order vacating the exemption, to give EPA time to work with states and the regulated community to develop a general permit for pesticide applications covered by the decision. EPA issued the pesticide general permit on October 31, 2011, as required by the federal court. Legislative Options

Prior to the 2009 federal court ruling that vacated EPA's rule, some environmental activists favored legislation to clarify that NPDES permits are required, since they contended that the rule was unlawful. The House passed H.R. In addition, a provision similar to H.R. This bill proposed to clarify congressional intent regarding the regulation of the use of pesticides in or near U.S. waters. 897 , the Reducing Regulatory Burdens Act) and was approved by the House Agriculture Committee in March 2015. The House passed a modified version on May 24, 2016. Separate Senate legislation, S. 2899 , the Zika Response and Regulatory Relief Act, was introduced to provide a temporary, 180-day waiver of the PGP and its reporting requirements solely for the purpose of public health pesticide applications of a mosquito control program.
This report provides background on the emerging conflict over interpretation and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they were enacted, there had been little apparent conflict between them. But their relationship has recently been challenged in several arenas, including the federal courts and regulatory proceedings of the Environmental Protection Agency (EPA). In this report, a brief discussion of the two laws is followed by a review of the major litigation of interest. EPA's efforts to clarify its policy in this area are discussed, including a regulation issued in 2006 that was subsequently vacated by a federal court, as well as possible options for EPA and Congress to address the issues further.
FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. The CWA creates a comprehensive regulatory scheme to control the discharge of pollutants into the nation's waters; the discharge of pollutants without a permit violates the act.
Several federal court cases testing the relationship between FIFRA and the CWA have drawn attention since 2001. In two cases concerning pesticide applications by agriculture and natural resources managers, the U.S. Court of Appeals for the Ninth Circuit held that CWA permits are required for at least some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters. It held in a third case that no permit was required for the specific pesticide in question. In 2010, the U.S. Court of Appeals for the Second Circuit ruled that a CWA discharge permit for mosquito control activities was not required before April 2011.
Several of the rulings alarmed a range of stakeholders who fear that requiring CWA permits for pesticide application activities would present significant costs, operational difficulties, and delays. Pressed to clarify its long-standing principle that CWA permits are not required for using FIFRA-approved products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental activists strongly opposed EPA's actions, arguing that FIFRA does not protect water quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders, such as pesticide applicators, endorsed the rule. However, the rule was challenged, and in 2009, a federal court vacated the regulation. The federal government asked the court to stay the order vacating the exemption for two years, to provide time for working with states to develop a general permit for pesticide applications covered by the decision. The court denied the request for rehearing and granted the requested delay, which was extended until October 31, 2011, when EPA issued the permit. Despite the agency's efforts to minimize regulatory burdens and cost, the permit is controversial.
Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. The House passed legislation intended to nullify the 2009 federal court ruling in the 112th and 113th Congresses. Similar bills were approved by House and Senate committees in the 114th Congress (H.R. 897, S. 659, and S. 1500). The House passed a modified version of H.R. 897, retitled the Zika Vector Control Act, on May 24, 2016. Separate Senate legislation, S. 2899, was proposed to provide a temporary, 180-day waiver of the pesticide general permit (PGP) and its reporting requirements for the purpose of public health pesticide applications of a mosquito control program. Similar waiver provisions were debated in connection with FY2017 appropriations legislation, but none was enacted.