Two votes. That’s what’s standing between legislation that would prohibit EPA and the states from requiring NPDES permits to be issued for the application of pesticides over or near water beginning next Tuesday (Nov. 1).

By now, most farmers are familiar with the ongoing legal battle around the Sixth Circuit Court of Appeals ruling in the case of National Cotton Council vs. EPA. The ruling required EPA to develop a new permitting system for pesticide sprays for aquatic applications.

Under the once-extended Sixth Circuit deadline, EPA has until Oct. 31 to complete the development of the permitting system. Last spring, the House voted 292-130 to bar EPA from implementing the new National Pollutant Discharge Elimination System permits. Similar legislation is pending in the Senate.

“We had such an overwhelming vote of support in the House,” said Beau Greenwood, executive vice president with CropLife America. “We have an overwhelming majority of support in the Senate. Yet, given all that, any one or, in this case, two senators can thwart the will of Congress. To me that is hard to imagine.”

Greenwood, a speaker at the Southern Crop Production Association annual meeting in Charleston, S.C., was referring to Sens. Barbara Boxer, D-Calif., and Benjamin L. Cardin, D-Md., both of whom have placed holds on the Senate version of H.R. 872, the House-passed Reducing Regulatory Burdens Act of 2011.

Under the Senate rules, any senator can place a hold on legislation that he or she disagrees with. It then requires 60 senators to end what amounts to a filibuster and allow the legislation to proceed to a vote on the Senate floor.

Members of a coalition of agricultural interests that includes CropLife America, the organization representing the nation’s pesticide manufacturers, the American Farm Bureau Federation, National Cotton Council and other commodity organizations say a total of 68 senators have indicated support for legislation barring implementation of the permits.

“Our strategy all along has been to fight and fight and when they tell you you are dead to continue to fight to get this legislation passed,” said Greenwood. “Eventually, if you do continue the fight, you reach that point where you might get that final no, and we did, indeed, get that final no last week.” (Greenwood spoke Tuesday, Oct. 25.)

Greenwood said Senate Minority Leader Mitch McConnell told the coalition that Majority Leader Harry Reid would not allow a vote on the legislation that would expose Boxer to a negative vote on her hold. Boxer is chairman of the Senate Environmental Committee.

“Instead, we were given the option of a two-year moratorium on implementation of the NPDES permitting system,” said Greenwood. “That moratorium would in no way preclude us from continuing to look for ways to move a more proper and responsible fix to the court’s ruling, and that’s where we stand today.”

Since that meeting, members of the coalition and the Senate majority and minority staffs and Boxer’s office have been negotiating to work out the details of an agreement to resolve the impasse.

“Whether the permit is implemented on Nov. 1 or two years from now, it doesn’t change the fact that the court’s ruling amounts to duplicative regulation by the same agency with no environmental benefit and results in a significant burden to users and states that must enforce and implement this permit," Greenwood said.

“Limited state resources being diverted away from programs that will have an environmental benefit to enforce the court’s ruling in National Cotton Council just makes no sense to anybody. That’s why we were able to pass a bill with such large support in the House and an overwhelming majority of support in the Senate, and we’re going to continue to fight to find some way to get this done.”

In earlier reports, EPA has estimated the new permitting system will cover about 1.5 million pesticide applications per year. It anticipates the potential number of permit applicants at 365,000 and estimates the annual time burden at 1,033,713 hours for permittees and 45,809 hours for the 45 delegated permit authorities in the states. (Five states do not have authority to issue Clean Water Act permits.)

H.R. 872 would amend FIFRA and the Clean Water Act to say that no permit is required for the labeled use of any registered pesticide. It would also instruct EPA and the courts that Congress did not intend other environmental laws to overtake FIFRA.

Most observers believe that about a third of the states are ready to begin implementing the permits on Nov. 1. Another third could be ready to implement the permits within days of the Nov. 1, and another third has a considerable amount of work to do to prepare for implementation.

While the court ruling applies only to aquatic uses of pesticides such as mosquito abatement program and removal of unwanted vegetation from streams, farm organizations believe it is only a matter of time before environmental groups could begin filing so-called citizen action suits against other pesticide applications, attempting to bring them under a similar permit system.