11th hour pesticide amendments snuck into appliance bill in Denver

DENVER, April 28, 2023 — In the Senate Transportation and Energy Committee hearing on April 24, HB23-1161, Environmental Standards for Appliances was presented by sponsor Sen. Lisa Cutter, D-District 20. The introduction of the bill concentrated on clean air and saving money for consumers by updating standards regarding shower-heads, urinals, water closets and certain faucets; certain lamps; commercial hot food holding cabinets; portable electric spas; residential ventilating fans; and spray sprinkler bodies.

The bill also creates new standards for certain appliances and other fixtures that are sold in Colorado on and after Jan. 1, 2026, including: air purifiers; commercial ovens; electric storage water heaters; electric vehicle supply equipment; gas fireplaces; irrigation controllers; tub spout diverters and shower-head tub spout diverter combinations; certain residential windows, residential doors, and residential skylights; and thermostats.

Sen. Cutter put forth an amendment not about any of the appliances of fixtures discussed in the bill or during the testimony phase, but regarding local control of pesticides.

"This bill is about environmental standards on products and these standards are designed to make sure we have a healthy environment in all respects," Cutter said. "So, with that in mind, we would like to offer some additional amendments to include additional products. Specifically, these amendments allow for limited local regulation of pesticides. Allowing local governments to be involved in the regulation of pesticides is a really important tool for ensuring they have the ability to protect their local environment and the health and safety of their communities."

Cutter said local government is better suited to determine the needs of their communities and assess the local environmental conditions. Co-prime sponsor Sen. Faith Winter, D-District 25, said the amendments exempt agriculture and water districts. Notably, the Colorado Department of Agriculture regulates pesticides.

Sen. Cleave Simpson, R-District 6, questioned the inclusion of pesticides.

"I'm trying to figure out how adopting regulations limiting the use of pesticides fits under the environmental standards for certain products, what's the product change?" Simpson asked.

Sen. Winter replied that "this title is certain products and pesticides are certainly a product."

Three amendments giving local control of pesticide applications were all passed despite no votes from Sen. Simpson and Sen. Byron Pelton, R-District 1. The bill, as amended, was approved to be sent to the Appropriations Committee with a favorable recommendation with a vote of 5-2.

THE FIRESTORM

Downstairs, the agriculture lobby was in the House Agriculture, Water and Natural Resources Committee expecting to hear any amendments regarding pesticides when SB23-192, Sunset Pesticide Applicators' Act was presented. The lobby was summoned to the Senate Transportation and Energy Committee in time to hear the passage of HB23-1161, Environmental Standards for Appliances with local control pesticide amendments.

Later the same evening, Rep. Barbara McLachlan, D-District 59, introduced SB23-192 with the caveat that there would be no need for discussion about local control of pesticides in the pesticide bill.

"One of the big things we were discussing in this bill is whether we should have uniform statewide regulations for pesticides as opposed to piecemeal and have local control over everything," she said. "Well, we don't have to discuss that now because that amendment was made in the Senate today on another bill completely. It was made in the Transportation and Environment Committee, so we do not have to discuss that tonight even though I think it's the most important part of the bill."

She explained that local control is difficult in the pesticide application business.

"Farms go over multiple counties, grocery stores cover more than two counties, restaurants can have different outlets in several different counties," she said. "We have pictures of trees that are on county lines where you may have to spray one side of the tree with half, and the other side of the tree with half, and everybody has to change and wash out all of the equipment every time and it's going to be a lot more expensive for all of us because it's just going to take forever for them to spray and to get everything done. It's really, really hard on the applicators."

Rep. Matt Soper, R-District 54, referenced the Japanese beetle that has begun to enter Mesa County and has been met with an aggressive attempt to control the pest before it can affect, for example, the peach orchards in Palisade.

"I listen when you tell me this is not an area for local control when you have pests that are out there that have no clue they're migrating over local government lines, moving from one city to another county to a special district — they don't know, they're just pursuing the next tree to hop onto and suck the lifeblood out of," he said. "That's where we also have to follow the science here and it's not good for local control."

GOES AGAINST DORA RECOMMENDATIONS

Rep. Ty Winter, R-District 47, confirmed with Sen. McLachlan that local control of pesticides does go against the recommendations of the Department of Regulatory Agencies (DORA).

Jordan Beezley, Colorado Department of Agriculture's deputy commissioner of External Affairs, explained that the pesticide program within CDA is responsible for the regulation and certification of pesticide applicators, licensure of individuals, and commercial pesticide businesses; the department approves and monitors continuing education of the regulated community, ensures pesticides are used in accordance with their label through inspections, investigations when there is an allegation of misuse.

"The department is in an amend position tonight because we believe that allowing limited local regulation is appropriate under the right circumstances," Beezley said.

He said although CDA is in an amend position, he encouraged committee support of the bill.

"We believe local government should have the option to be involved in deciding how pesticides are applied in their communities," he said. "This is an important step in ensuring they have the tools necessary to protect sensitive environmental areas within their jurisdiction and the health and safety of their populations. Local governments are well situated to determine the needs of their communities and access local environmental conditions."

Beezley's comments closely resembled Sen. Cutter's comments when introducing amendments to HB23-1161 hours earlier. He went on to say CDA believes "there is a way for limited local regulation without the total elimination of state preemption on licensure and regulations in the Pesticide Applicator Act.

"Local regulation can also be allowed in such a way that ensures the ordinance is guided by peer reviewed science," he said. "Finally, we recognize there is a need for uniformity in pesticide application in certain situations to protect agricultural production, natural resource management, and the management of water infrastructure and utility infrastructure in this state. We believe that allowing limited local regulation can accomplish all of these things I just mentioned."

Rep. Richard Holtorf, R-District 63, asked Deputy Commissioner Beezley if he was aware that no other states have adopted the model of local control he proposed, noting it was the first time he was aware that CDA had adopted the stance.

"I believe you're correct that no other state would have done local regulation in the way that we're proposing, and I think that's precisely why it is the appropriate approach for Colorado because it is an approach that addresses many of the concerns that have been brought forward through these discussions over the last four years that I've been involved in these discussions," he said.

WHAT ABOUT CDA SUPPORT FOR AG?

Holtorf continued to press Beezley.

"You work for the Department of Agriculture, you support agriculture," Holtorf said. "The way I understand it, the Colorado Department of Agriculture is supposed to make sure that agriculture's needs are met. Now, with regard to that and stating that, agriculture and the applicator community continues to stand strongly for the statewide regulation as a best practice. Uniform statewide regulations as a best practice for agriculture. Knowing the political issues and some of the comments that are made, how do you balance that knowing your role as the Colorado Department of Agriculture? Not the Colorado Department of Activism or of Local Control."

Beezley said the language in the way CDA is proposing local regulation has a "specific carve out for agriculture, to say that local governments cannot adopt ordinances that would limit the use of pesticides in agricultural operations."

Rep. Winter also questioned CDA's new stance and asked how it compares to DORA's recommendation. Beezley said DORAs sunset recommendations are typically authored by a single person who may or may not be an expert in that area and reviewing those recommendations to determine if they are appropriate.

Rep. Marc Catlin, R-District 58, pointed out the bill has been through two hearings, and asked Beezley why the CDA didn't mention local control in previous hearings. He responded that CDA had been in discussions with stakeholders to determine language to be brought forward that strikes a balance between protecting agriculture interests in the state while allowing local regulation.

Catlin asked how many local governments that can, just like any other landowner, elect to not use pesticides on their alleys, golf courses, and other properties, though Beezley was unaware of how many in the state have made that local decision.

"That would be an interesting idea because they're wanting local control but yet the things they can control, you don't have any evidence they're doing so," Catlin said. "We really need to see some of those kind of things to say whether or not there is a big demand for local control. We've heard from two or three of those communities tonight but from the Western Slope we haven't heard anything, from out on the eastern Plains we haven't heard anything so it seems to me the things they can control, they should control."

The bill, sponsored by Sen. Kevin Priola, D-District 13, Sen. Dylan Roberts, D-District 8, Rep. Cathy Kipp, District 52, and Rep. McLachlan passed committee in a 13-0 vote unamended. The local control amendments put forth by Cutter and Faith Winter to 

Source: Rachel Gabel, The Fence Post Magazine, Western Ag Network