Regulatory

regulatory

 

ASA Positions

  • ASA supports maintaining science-based processes for consideration of pesticide and environmental issues by EPA.  Existing statutes including FIFRA must be followed and consultation with production agriculture stakeholders must be included in policymaking.
  • ASA opposes EPA actions to supersede state authority in the Chesapeake Bay and other watersheds, and the use of flawed models that don’t reflect current agricultural practices and conservation results.
  • ASA supports the exemption passed for farmers from the Spill Prevention Control and Countermeasures (SPCC) Rule as part of the FUELS Act Amendment to the Water Resources Development Act of 2013. The measure now awaits debate in the House.

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Issues Background

Clean Water Rule (also known as the Waters of the United States Rule)

EPA and the Corps published the final Clean Water Rule in 2015; last fall, the 6th Circuit Court of Appeals placed a preliminary injunction on implementation and enforcement of the WOTUS Rule in all 50 states so it has not taken effect.

On February 22, 2016, a three-panel judge of the 6th Circuit Court issued a ruling on the question of whether or not they have jurisdiction under the Clean Water Act on the WOTUS rule.  The three judges split on their opinions.  One judge agreed with the jurisdiction question and the second judge also agreed with jurisdiction but disagreed with how the court reached its decision.  The third judge does not believe the 6th Circuit has jurisdiction. The rule was challenged by more than 20 separate states and interest groups, but the court decided in April that the three judge panel will hear the lawsuit. The stay on implementation remains in place.

Oral arguments in the case before the 6th Circuit have been set for spring of 2017.

On June 24, a second appeals court agreed to hear oral arguments in an appeal related to the WOTUS rule, opening the door to a potential circuit split on whether the legal battle over the rule must start in district court or appeals court.

The 11th Circuit Court of Appeals ordered oral arguments in an appeal by Georgia and 10 other states of a lower court’s denial of a request for a preliminary injunction of the rule. The courts have yet to decide where challenges to the rule must be heard first.

Oral arguments in the 11th Circuit appeal are set for July 8.

ASA believes the rule represents an expansion of jurisdiction. ASA specifically cites the nexus test—language in the rule that EPA says it will now use to determine the level to which a smaller body of water connects to a larger one for the purposes of establishing jurisdiction under the Clean Water Act—as exceeding both the intent of Congress and the rulings of the Supreme Court.

Congress has thus far been unsuccessful in preventing implementation of the Clean Water Rule, and refused to prohibit funding in the FY 2016 Omnibus Appropriations Act. For FY2017, both the House Interior-Environment Appropriations Subcommittee and the Senate Interior, Environment and Related Agencies Subcommittee bill include provisions to block funding for the WOTUS rule.

Seed Treatments for Soybeans

In October 2014, EPA published The “Benefits of Neonicotinoid Seed Treatments to Soybean Production.” The document concluded that “this analysis provides evidence that U.S. soybean growers derive limited to no benefit from neonicotinoid seed treatments in most instances.” Actual experience from soybean farmers leads ASA to disagree with this conclusion.

While EPA notes that “On average, from 2008-2012, neonicotinoid-treated seeds were applied on 30% of soybean acres,” we know that “on average” is an experience very few farmers have in a given year. For example, research from Mississippi shows that adoption of neonicotinoid seed treatments has reached about 90% in that state. Yet farmers in other states report that seed treatments do not provide enough value for them to use them.

Soybean producers use neonicotinoid seed treatments where they are needed and effective, and don’t use them where they are not.  That approach to the use of crop protection products should be rewarded, not penalized.

ASA cannot support efforts to restrict or ban neonicotinoid seed treatment products. Such efforts would unquestionably lead to additional and more costly input applications than the more limited use of seed treatment products.

ASA urges EPA to maintain its commitment to science in evaluating crop protection tools.

NPDES Permits

New permitting requirements took effect in 2012 requiring persons who spray pesticides on or near water to obtain a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act. The permit does not cover terrestrial application to control pests on agricultural crops.

In January of 2016, ASA joined nearly 100 organizations in supporting an amendment to S. 659, the Bipartisan Sportsmen’s Act of 2015, which would clarify that federal law does not require this permit for already regulated pesticide applications. Requiring water permits for pesticide applications is redundant and provides no additional environmental benefit. The amendment, previously introduced as stand-alone legislation S. 1500, the Sensible Environmental Protection Act, was adopted by a vote of 12-8 in the Senate Environment and Public Works (EPW) committee.

Most recently, the conference report for the Military Construction/Veterans Administration, Zika Supplemental and Zika Vector Control Act (HR 897) included new language to prevent the EPA Administrator from requiring a permit for public entities who are engaged in pesticide applications directly related to mosquito control for prevention of the Zika virus.  This provision is further limited to a six month period from the date of enactment of the bill. This provision in the conference report does not accomplish the goals that ag stakeholders set out to achieve, which would have reduced the compliance burden and the litigation threat from having to apply for a new permit for pesticide applications that are already regulated. The bill was approved by the House but failed in the Senate.

ASA continues to support action to eliminate this permit requirement in the 114th Congress.

Download ASA Position Paper on Regulatory Issues
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Reach out to your member of Congress on this issue:
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