WASHINGTON, D.C. — Agricultural stakeholders are doing what they can to stop implementation of a new regulation that would make more farmers obtain National Pollutant Discharge Elimination System (NPDES) permits, as required by the U.S. Environmental Protection Agency (EPA).

On their end, U.S. legislators are fighting over a bill, House Resolution 872, which would nullify the new regulation. Rep. Frank Lucas (R-Okla.), chair of the House Agriculture Committee, spoke about the NPDES issue last week during his “Ag Minute” radio broadcast.

“On October 31, a court order will begin requiring redundant permitting for pesticide applications,” Lucas said. “Because pesticide applications are already regulated, this new requirement won’t provide any additional environmental benefits. All it will do is impose substantial new costs.

“That slows down economic activity and hurts job growth, at a time when we can ill afford to do so. The House of Representatives responded by passing the Reducing Regulatory Burdens Act – H.R. 872. This bipartisan legislation would eliminate the second, redundant permitting process.

“After passing the House, the legislation was considered by the Senate Agriculture Committee, where it once again gained wide bipartisan support,” he added. “I have repeatedly called on Senate Majority Leader Harry Reid (D-Nev.) to bring the bill to the Senate floor for action.

“Time is running out. In less than one month, farmers, ranchers and small business owners will be subject to this costly and unnecessary requirement, unless Senator Reid acts quickly. It’s time to put jobs first and pass the Reducing Regulatory Burdens Act.”

The National Assoc. of Wheat Growers (NAWG) said state regulators have asked the EPA to ask the court for another extension of the new regulation’s effective date. But Melissa Kessler, a spokeswoman for NAWG, said her group is operating under the assumption there will not be another extension.

“My understanding is there will not be a response from the EPA,” she said.

Tamara Hinton, an aide to Lucas, said more extensions aren’t going to solve the problem. “You can extend it all you want, but only a legislative solution will solve the problem of the double-permitting issue,” she said. “I don’t know that anybody’s ‘hoping’ (that the bill is brought up). We’re just calling on Senator Reid.”

According to Hinton, H.R. 872 is being held up by Reid; also, reportedly, Senate Environment and Public Works Committee Chair Barbara Boxer (D-Calif.) and Sen. Ben Cardin (D-Md.) have put a hold on the legislation, stating their committees ought to have jurisdiction over the bill. At this point, it’s not clear what’s going to happen.

“It passed the House in March on a bipartisan basis,” Kessler said. “It is bipartisan legislation.”

The problem arises out of a U.S. Sixth Circuit Court of Appeals decision in National Cotton Council, et al. v. EPA. In that case, the court vacated a 2006 EPA regulation that said NPDES permits were not required for applications of pesticides to U.S. waters. As a result of the decision, discharges to waters of the United States from the application of pesticides will require NPDES permits.

Originally, the effective date of the new rule, which EPA announced on June 2, 2010, was April 9, 2011. An extension was granted, but now the new deadline is fast approaching. The EPA estimates the Sixth Circuit’s ruling will affect approximately 365,000 pesticide applicators nationwide who perform 5.6 million pesticide applications each year.

Opponents of the new permitting regime say growers will end up having to hire IPM technicians, delay timely pesticide applications and add layers of burdensome planning, record-keeping and reporting requirements during the busiest time of the year for growers. They also say it will expose professional applicators and land managers to unnecessary legal risks for citizen lawsuits over potential paperwork violations.

“Farmers should be worried that they could be sued if their runoff is in any way connected to another body of water,” Kessler said.

She said although agricultural applicators are theoretically exempt from having to get the NPDES permit under the new regulatory regime, the state of the law defining what constitutes ‘waters of the United States’ is vague. She said even an unsuccessful lawsuit could be expensive for a grower, which is why NAWG and other stakeholders are seeking certainty with H.R. 872.

“Obviously, there’s a deadline, so we’re working on it,” Kessler said. “There’s just a lot of moving parts.”