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64–689 PDF 2011

HEARING TO CONSIDER REDUCING THE 

REGULATORY BURDENS POSED BY THE 

CASE, NATIONAL COTTON COUNCIL V. EPA

(6TH CIR. 2009) AND TO REVIEW RELATED 

DRAFT LEGISLATION

JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON 

NUTRITION AND HORTICULTURE, 

COMMITTEE ON AGRICULTURE

AND THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT, 

COMMITTEE ON TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

FEBRUARY 16, 2011

Serial No. 112–3

(COMMITTEE ON AGRICULTURE)

Serial No. 112–10

(COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE)

(

Printed for the use of the Committee on Agriculture 

agriculture.house.gov 

COMMITTEE ON AGRICULTURE 

FRANK D. LUCAS, Oklahoma, Chairman 

BOB GOODLATTE, Virginia, 

Vice Chairman 

TIMOTHY V. JOHNSON, Illinois 

STEVE KING, Iowa 

RANDY NEUGEBAUER, Texas 

K. MICHAEL CONAWAY, Texas 

JEFF FORTENBERRY, Nebraska 

JEAN SCHMIDT, Ohio 

GLENN THOMPSON, Pennsylvania 

THOMAS J. ROONEY, Florida 

MARLIN A. STUTZMAN, Indiana 

BOB GIBBS, Ohio 

AUSTIN SCOTT, Georgia 

STEPHEN LEE FINCHER, Tennessee 

SCOTT R. TIPTON, Colorado 

STEVE SOUTHERLAND II, Florida 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

MARTHA ROBY, Alabama 

TIM HUELSKAMP, Kansas 

SCOTT DESJARLAIS, Tennessee 

RENEE L. ELLMERS, North Carolina 

CHRISTOPHER P. GIBSON, New York 

RANDY HULTGREN, Illinois 

VICKY HARTZLER, Missouri 

ROBERT T. SCHILLING, Illinois 

REID J. RIBBLE, Wisconsin 

COLLIN C. PETERSON, Minnesota, Ranking 

Minority Member 

TIM HOLDEN, Pennsylvania 

MIKE MCINTYRE, North Carolina 

LEONARD L. BOSWELL, Iowa 

JOE BACA, California 

DENNIS A. CARDOZA, California 

DAVID SCOTT, Georgia 

HENRY CUELLAR, Texas 

JIM COSTA, California 

TIMOTHY J. WALZ, Minnesota 

KURT SCHRADER, Oregon 

LARRY KISSELL, North Carolina 

WILLIAM L. OWENS, New York 

CHELLIE PINGREE, Maine 

JOE COURTNEY, Connecticut 

PETER WELCH, Vermont 

MARCIA L. FUDGE, Ohio 

GREGORIO KILILI CAMACHO SABLAN, 

Northern Mariana Islands 

TERRI A. SEWELL, Alabama 

JAMES P. MCGOVERN, Massachusetts 

PROFESSIONAL STAFF

NICOLE SCOTT, Staff Director 

KEVIN J. KRAMP, Chief Counsel 

TAMARA HINTON, Communications Director 

ROBERT L. LAREW, Minority Staff Director 

SUBCOMMITTEE ON NUTRITION AND HORTICULTURE

JEAN SCHMIDT, Ohio, Chairwoman 

STEVE KING, Iowa 

THOMAS J. ROONEY, Florida 

STEVE SOUTHERLAND II, Florida 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JOE BACA, California, Ranking Minority 

Member 

CHELLIE PINGREE, Maine 

GREGORIO KILILI CAMACHO SABLAN, 

Northern Mariana Islands 

MATT PERIN, Subcommittee Staff Director

(II) 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JOHN L. MICA, Florida, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

TOM REED, New York 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington 

FRANK C. GUINTA, New Hampshire 

RANDY HULTGREN, Illinois 

LOU BARLETTA, Pennsylvania 

CHIP CRAVAACK, Minnesota 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BILLY LONG, Missouri 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

STEPHEN LEE FINCHER, Tennessee 

JEFFREY M. LANDRY, Louisiana 

STEVE SOUTHERLAND II, Florida 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

NICK J. RAHALL, II, West Virginia, Ranking 

Minority Member 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

STEVE COHEN, Tennessee 

LAURA A. RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

PROFESSIONAL STAFF

JAMES W. COON, II, Staff Director 

SUZANNE MULLEN, General Counsel 

JUSTIN HARCLERODE, Communications Director 

JIM ZOIA, Minority Staff Director 

(III) 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT, COMMITTEE ON

TRANSPORTATION AND INFRASTRUCTURE

BOB GIBBS, Ohio, Chairman 

DON YOUNG, Alaska 

JOHN J. DUNCAN, JR., Tennessee 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

TOM REED, New York 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington 

CHIP CRAVAACK, Minnesota 

LARRY BUCSHON, Indiana 

JEFFREY M. LANDRY, Louisiana 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

TIMOTHY H. BISHOP, New York, Ranking 

Minority Member 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

RUSS CARNAHAN, Missouri 

DONNA F. EDWARDS, Maryland 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

JASON ALTMIRE, Pennsylvania 

STEVE COHEN, Tennessee 

LAURA A. RICHARDSON, California 

———

JOHN ANDERSON, Subcommittee Staff Director

(IV) 

(V)

C O N T E N T S 

Page 

Baca, Hon. Joe, a Representative in Congress from California, opening statement ...................................................................................................................... 4

Bishop, Hon. Timothy H., a Representative in Congress from New York, 

opening statement ................................................................................................ 8

Submitted report .............................................................................................. 86

Gibbs, Hon. Bob, a Representative in Congress from Ohio, opening statement 6

Lucas, Hon. Frank D., a Representative in Congress from Oklahoma, opening 

statement .............................................................................................................. 4

Napolitano, Hon. Grace F., a Representative in Congress from California, 

opening statement ................................................................................................ 11

Peterson, Hon. Collin C., a Representative in Congress from Minnesota, opening statement ........................................................................................................ 10

Prepared statement .......................................................................................... 10

Schmidt, Hon. Jean, a Representative in Congress from Ohio, opening statement ...................................................................................................................... 1

Prepared statement .......................................................................................... 3

WITNESSES

Bradbury, Dr. Steven, Director, Office of Pesticide Programs, U.S. Environmental Protection Agency, Washington, D.C. .................................................... 12

Prepared statement .......................................................................................... 14

Submitted questions ......................................................................................... 74

Salazar, Hon. John, Commissioner, Colorado Department of Agriculture, 

Lakewood, CO; on behalf of National Association of State Departments 

of Agriculture ........................................................................................................ 30

Prepared statement .......................................................................................... 32

Submitted questions ......................................................................................... 84

Fisk, Dr. Andrew, Director, Maine Bureau of Land and Water Quality; President, Association of State and Interstate Water Pollution Control Administrators, Augusta, ME ........................................................................................... 34

Prepared statement .......................................................................................... 36

Submitted questions ......................................................................................... 74

Ninivaggi, Dominick V., Superintendent, Division of Vector Control, Suffolk 

County Department of Public Works, Yaphank, NY; on behalf of American 

Mosquito Control Association; accompanied by David Brown, Manager, Sacramento-Yolo Mosquito and Vector Control District, Elk Grove, CA .............. 41

Prepared statement .......................................................................................... 43

Submitted questions ......................................................................................... 77

Semanko, Norman M., Executive Director and General Counsel, Idaho Water 

Users Association, Inc., Boise, ID; on behalf of National Water Resources 

Association ............................................................................................................ 47

Prepared statement .......................................................................................... 49

SUBMITTED MATERIAL

American Farm Bureau Federation, submitted statement .................................. 64

Chemical Producers & Distributors Association, submitted statement .............. 66

CropLife America, submitted statement ................................................................ 67

Supplemental material ..................................................................................... 69

Gilliom, Robert J., Hydrologist, U.S. Geological Survey, submitted statement . 53

Hobbs, Aaron, President, RISE (Responsible Industry for a Sound Environment)®, submitted statement .............................................................................. 57

Snyder, Rodney, Chair; and Beau Greenwood, Vice Chair, Pesticide Policy 

Coalition, submitted statement ........................................................................... 60

(1)

HEARING TO CONSIDER REDUCING THE 

REGULATORY BURDENS POSED BY THE 

CASE, NATIONAL COTTON COUNCIL V. EPA

(6TH CIR. 2009) AND TO REVIEW RELATED 

DRAFT LEGISLATION 

WEDNESDAY, FEBRUARY 16, 2011

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NUTRITION AND HORTICULTURE, COMMITTEE ON AGRICULTURE, JOINT WITH

SUBCOMMITTEE ON WATER RESOURCES AND

ENVIRONMENT, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, Washington, D.C. 

The Subcommittees met, pursuant to call, at 2:30 p.m., in Room 

1300 of the Longworth House Office Building, Hon. Jean Schmidt 

[Chairwoman of the Nutrition and Horticulture Subcommittee] and 

Hon. Bob Gibbs [Chairman of the Water Resources and Environment Subcommittee] presiding. 

Members of Subcommittee on Nutrition and Horticulture 

present: Representatives Schmidt, Southerland, Lucas (ex officio), 

Peterson (ex officio), Baca, Pingree, Sablan, Costa, and Cardoza. 

Members of Subcommittee on Water Resources and Environment 

present: Representatives Gibbs, Lankford, Bishop, and Napolitano. 

Staff of Committee on Agriculture present: Patricia Barr, John 

Goldberg, Mary Nowak, Debbie Smith, Keith Jones, and Jamie W. 

Mitchell. 

Staff of Committee on Transportation and Infrastructure present: 

Jon Pawlow, Geoff Bowman, Caryn Moore, and Ryan Seiger. 

OPENING STATEMENT OF HON. JEAN SCHMIDT, A 

REPRESENTATIVE IN CONGRESS FROM OHIO 

Mrs. SCHMIDT. Thank you all for this delayed opportunity to 

come before us: The Subcommittee on Nutrition and Horticulture, 

and the Subcommittee on Water Resources and Environment: this 

is a joint public hearing to consider reducing the regulatory burdens posed by the case, National Cotton Council v. EPA in the 6th 

Circuit 2009 and to review related draft legislation. This joint hearing of the House Agriculture Subcommittee on Nutrition and Horticulture and the Committee on Transportation and Infrastructure 

Subcommittee is considering this case. I am going to first give my 

opening statement then I am going to recognize my Ranking Member, Mr. Baca, and because our Chairman of our Committee, Mr. 

2

Lucas, has a time commitment, I am going to allow him to give his 

opening statement and then defer to Mr. Gibbs. 

I would like to thank my colleagues from both Committees for 

being here today and we have just finished votes so people will be 

coming in. We appreciate the support of both Committees and their 

staffs. The issue that brings us together is of critical importance to 

our mutual constituency, and it is my hope that the solutions proposed to us today will truly be bipartisan as is the tradition of this 

Agriculture Committee. For more than 100 years the Federal Government has administered its responsibilities under the Federal Insecticide, Fungicide, and Rodenticide Act or FIFRA to effectuate a 

review and registration program for pesticides that insures protection of human health and the environment. 

Since the passage of the Clean Water Act of 1972, the Environmental Protection Agency has interpreted its responsibilities related to pesticide use such that compliance with FIFRA would mitigate the need for duplicative regulation under the Clean Water Act. 

As litigation in the early part of this past decade began to challenge this interpretation, the EPA ultimately responded with the 

promulgation of the regulation on November 27, 2006, to clarify 

how these two laws are to operate. Under EPA’s final rule governing application of pesticides to waters of the United States in 

compliance with FIFRA, the agency clarified in regulation its earlier interpretation that permits for pesticide application under the 

Clean Water Act were unnecessary where pesticides were used in 

accordance with their regulation under FIFRA. 

Following finalization of this regulation, the rule was challenged 

in numbers—numerous jurisdictions. The case was ultimately 

heard in this Sixth Circuit Court where the government’s interpretation of the interaction of these two laws was not given the deference we would normally expect. The final court order will nullify 

EPA’s regulation as of April the 9th of this year, and as such will 

impose what is viewed as a burdensome, costly, and duplicative 

permitting process under the Clean Water Act for literally millions 

of pesticide application. 

Having exhausted all judicial review options and failing Congressional action, this order will impose a burden on the EPA, state 

regulatory agencies, and pesticide applicators that will cost our 

economy dearly in terms of jobs as well as severely threaten the 

already critical budgetary situation facing governments at all levels 

in our country. It is particularly unfortunate that this court order 

imposes a new requirement that will imperil our water resource 

boards, our mosquito control boards, our forestry and agricultural 

sectors, yet provides no additional environmental or public health 

protection. On the contrary by imposing this costly burden on public health pesticide users, it may in fact jeopardize public health as 

it relates to protection against insect-borne diseases such as West 

Nile Virus and various forms of encephalitis and Lyme disease. 

With limited options short of legislation to address this issue, 

several proposals were drafted and introduced last fall. In discussions with the EPA, questions were raised in terms of ambiguity 

of some of these proposals and as such the agency provided Committees in both the House and the Senate with technical assistance 

to redraft this legislation. The legislation that is in each Member’s 

3

folder and that was made available to each of our witnesses was 

drafted by the EPA. It has since passed through the House Legislative Council. The goal of this legislation has been to address only 

those problems created by the decisions of the 6th Circuit, and to 

be entirely consistent with the policy of the EPA as stated in their 

November 27, 2006, final ruling governing the application of pesticides to waters in the United States in compliance with FIFRA. 

We are very grateful to the cooperation and the assistance of the 

EPA in this matter. We recognize that the agency’s draft legislation 

is the product of a request for technical assistance and as such we 

have not asked, nor do we expect that agency will take a position 

today for or against the bill. We simply wish to engage the agency 

on technical aspects of their pesticide program and to ensure that 

the draft legislation conforms to their 2006 regulation. While there 

are many issues confronting this Congress in which our relationship with the EPA may unfortunately seem to be more adversarial, 

in this particular case we recognize and acknowledge that the EPA 

is as much of a victim of an erroneous court order as are the state 

and local governments and pesticide applicators. 

We are hopeful that this bipartisan spirit in which we address 

this issue will be a model for how we confront other issues. 

[The prepared statement of Mrs. Schmidt follows:]

PREPARED STATEMENT OF HON. JEAN SCHMIDT, A REPRESENTATIVE IN CONGRESS

FROM OHIO

I would first like to welcome our colleagues from the Subcommittee on Water Resources and Environment of the Transportation and Infrastructure Committee. 

We appreciate the cooperation and support you’ve offered in organizing this joint 

hearing of our two Subcommittees. 

The issue that brings us together today is of critical importance to our mutual 

constituencies and it is my hope that the solutions proposed to us today will be truly 

bipartisan as is the tradition of the Agriculture Committee. 

For more than 100 years, the Federal Government has administered its responsibilities under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to 

effectuate a review and registration program for pesticides that ensures protection 

of human health and the environment. 

Since passage of the Clean Water Act in 1972 (CWA), the Environmental Protection Agency (EPA) has interpreted its responsibilities related to pesticide use such 

that compliance with FIFRA would mitigate the need for duplicative regulation 

under the CWA. 

As litigation in the early part of this past decade began to challenge this interpretation, the EPA ultimately responded with the promulgation of a regulation on November 27, 2006 to clarify how these two laws are to operate. Under EPA’s final 

rule governing application of pesticides to waters of the United States in compliance 

with FIFRA, the agency clarified in regulation its earlier interpretation that permits 

for pesticide application under the CWA were unnecessary where pesticides were 

used in accordance with their regulation under FIFRA. 

Following finalization of this regulation, the rule was challenged in numerous jurisdictions. The case was ultimately heard in the 6th Circuit wherein the government’s interpretation of the interaction of these two laws was not given the deference we would normally expect. 

The final court order will nullify EPA’s regulation as of April 9th of this year and 

as such will impose what is viewed as a burdensome, costly, and duplicative permitting process under the CWA for literally millions of pesticide applications. 

Having exhausted all judicial review options and failing Congressional action, this 

order will impose a burden on the EPA, state regulatory agencies, and pesticide applicators that will cost our economy dearly in terms of jobs as well as severely 

threaten the already critical budgetary situation facing government at all levels. It 

is particularly unfortunate that this court order imposes a new requirement that 

will imperil our water resource boards, our mosquito control boards, and our forestry and agricultural sectors, yet provides no additional environmental or public 

4

health protection. On the contrary, by imposing this costly burden on public health 

pesticide users, it may in fact jeopardize public health as it relates to protection 

against insect-borne diseases such as West Nile Virus, various forms of Encephalitis, and Lyme disease. 

With limited options short of legislation to address this issue, several proposals 

were drafted and introduced last Fall. In discussions with the EPA, questions were 

raised in terms of the ambiguity of some of these proposals and as such, the agency 

provided Committee’s in both the House and the Senate with technical assistance 

to redraft this legislation. 

The draft legislation that is in each Members folder and that was made available 

to each of our witnesses was drafted by the EPA. It has since passed through the 

House Legislative Council. The goal of this legislation has been to address only 

those problems created by the decision of the 6th Circuit and to be entirely consistent with the policy of the EPA as stated in their November 27, 2006 final rule 

governing Application of Pesticides to Waters of the United States in compliance 

with FIFRA. 

We are very grateful for the cooperation and the assistance of the EPA in this 

matter. We recognize that the agency’s draft legislation is the product of a request 

for technical assistance, and as such we have not asked, nor do we expect that agency will take a position today for or against the bill. We simply wish to engage the 

agency on the technical aspects of their pesticide program and to ensure that the 

draft legislation conforms to their 2006 regulation. 

While there are many issues confronting this Congress in which our relationship 

with the EPA may unfortunately seem to be more adversarial, in this particular 

case we recognize and acknowledge that the EPA is as much a victim of an erroneous court order as are state and local governments and pesticide applicators. 

We are hopeful that the bipartisan spirit in which we address this issue will be 

a model for how we confront other issues. 

With that, I would like to once again thank everyone present for their interest 

in this important issue and would like to recognize my good friend, Ranking Member Baca, for his opening statement.

Mrs. SCHMIDT. With that, I would once again like to thank everyone present for their interest in this important matter and I will 

now recognize my good friend, Ranking Member Baca, for his opening statement. 

OPENING STATEMENT OF HON. JOE BACA, A 

REPRESENTATIVE IN CONGRESS FROM CALIFORNIA 

Mr. BACA. Thank you very much, Madam Chair. In the spirit of 

being bipartisan and understanding that the Chairman of the Agriculture Committee has to go to another meeting I will yield my 

time to him at this time and then give my opening statement later 

since I sit on the Agriculture Committee and I may want some of 

those bills passed. So at this time I yield to the Chairman. 

OPENING STATEMENT OF HON. FRANK D. LUCAS, A 

REPRESENTATIVE IN CONGRESS FROM OKLAHOMA 

Mr. LUCAS. Thank you, Ranking Member as always you are a 

Statesman and a true legislator to the core. I appreciate that. I 

want to express my appreciation to first and foremost of course to 

both Chairmen and both Ranking Members of the two Subcommittees for holding this hearing. And express too, my appreciation to 

our panelists who have been very patiently waiting for this process 

to begin. We have just finished I believe 15 votes in a series. We 

are in a process which has not been done quite this way before and 

we have today and tomorrow yet to go. So your indulgence and 

your tolerance is appreciated as we move forward. 

But this issue that is being addressed today by the joint meeting 

of the Subcommittees is an issue of critical importance to all of our 

constituents, and I appreciate the bipartisan spirit in which the 

5

hearing has been organized. I would like to thank the EPA for 

their assistance in providing the two separate bipartisan legislative 

proposals that were introduced in the last Congress. I am hopeful 

that the cooperation and support we have received from the agency 

is a signal of the Administrator’s willingness to work together to 

solve problems confronting all of our constituents. 

The issue before us today is extremely time sensitive. If we fail 

to get bipartisan legislation to the President’s desk by April 9, a 

questionably naı ̈ve and irresponsible court order will be implemented that will impose what I fear is a potentially disastrous burden on the government budgets and an equally ruinous cost on 

small business. The draft legislation before us is intended to solve 

a very specific problem. Our request to the agency was for legislation consistent with their final regulation of November 27, 2006, 

and I am hopeful that the agency representative here today will 

verify that this is indeed the case. 

EPA has administered a robust regulatory program for pesticides 

under the Federal Pesticide, Fungicide, and Rodenticide Act, 

FIFRA. It is my belief that sufficient authority exists under this 

Act to balance the risks and the benefits of pesticide applications. 

Under FIFRA, the EPA may register a pesticide following a review 

of more than 120 mandated, scientific studies. Yes, 120 is what I 

said if the product can be used safely under specific conditions, the 

EPA will approve a label governing its use. Failure to comply with 

all label conditions is a violation of the Act which the agency enforces using tools ranging from civil monetary penalties including 

recovery of any economic benefit of noncompliance to requiring correction of the violation. EPA may also issue a stop sale, use, or removal order prohibiting the person who owns, controls, or has custody of a violative pesticides from being sold, used, and removing 

that product. 

I think we can all agree that compliance with FIFRA imposes an 

already substantial statutory and economic burden on the industry. 

In issuing its order, the 6th Circuit has also imposed a duplicative, 

burdensome, and costly obligation on government and industry 

that provides no quantifiable benefit to human health or the environment. Having exhausted all judicial remedies it now falls on 

Congress to resolve this matter. It is my sincere hope that we can 

all work together in a timely manner to do what must be done. 

Again, I thank the Chairmen and Ranking Members and I look forward to the comments of my colleagues and the input from our expert panels to follow. I yield back. 

Mr. BACA. Thank you. Reclaiming my time, good afternoon and 

I want to thank the Chairwoman for holding this important hearing this afternoon. I want to thank the panelists for their patience 

in waiting until we got back from votes. I also want to thank the 

Members of the Transportation and Infrastructure Subcommittee 

on Water Resources and Environment for joining us here today. 

Unfortunately, there are too few opportunities—and I state too few 

opportunities for a Committee to jointly examine an issue that 

builds relationship across jurisdictions and across the aisles. My 

objective here is simple and straightforward. I want to better understand how the regulatory burdens placed on pesticides users by 

the National Cotton Council v. EPA decision can be eliminated. 

6

Part of this case, EPA had never required a permit for applications 

of pesticides when the pesticides was applied consistent with the 

FIFRA regulations. While EPA’s new permit only covers four application types, it has estimated to affect some 365,000 applicators 

and 5.6 million pesticides applications each year. Can you imagine 

what those numbers are? 

EPA estimates that the permit process will add $1.7 million in 

annual costs to our cash strapped states. Many experts including 

my former colleague John Salazar believes that the actual costs to 

our states will be significantly higher than that. In addition, the 

permitting process is estimated to add another $50 million in cost 

to pesticides applicators, most of whom are small businesses, not 

to mention the delay in the process of that application to be processed as well. 

In my home State of California, we face a 12.5 unemployment rate and a $25 billion budget deficit. We simply cannot afford this 

regulatory burden. Likewise, the negative impact on agriculture, irrigation, and the pest control professionals is a cause for serious 

public health concern. My Congressional district located in California and the Inland Empire has long had problems with the West 

Nile Virus, the ability of the mosquito and the pest control to respond quickly—and I state to respond quickly because if you don’t 

respond quickly that means time and money to a public health situation that must not be jeopardized. For over 30 years the FIFRA 

has ensured that when a pesticide is used in accordance with the 

label requirements it will not bring unreasonable risk to our communities or the environment. I believe in the standards that we 

must return to. I look forward to hearing from our witnesses and 

working with my colleagues to find a reasonable—and I state reasonable legislative solution to this issue. I yield back to the Chairwoman. 

Mrs. SCHMIDT. Thank you and before I yield over to my good 

friend on the Transportation and Infrastructure Committee, Mr. 

Gibbs of Ohio, the gentleman from California, Mr. Cardoza who is 

not a Member of this Subcommittee but is a Member of the full 

Committee has joined us today and I have consulted with the 

Ranking Member and we are pleased to welcome him and ask him 

if he would like to join in the questioning of the witnesses. Thank 

you. Correct? Perfect and now I will turn this over to the good gentleman from Ohio, Mr. Gibbs. 

OPENING STATEMENT OF HON. BOB GIBBS, A 

REPRESENTATIVE IN CONGRESS FROM OHIO 

Mr. GIBBS. Thank you, Madam Chair. I would like to welcome 

everyone to our hearing today on means for reducing the regulatory 

burdens posed by the 6th Circuit Federal Court of Appeals case 

National Cotton Council v. EPA, which vacated a 2006 EPA Clean 

Water Act rule relating to pesticide use. In 2006, the Environmental Protection Agency promulgated a rule relating to pesticide 

use to address regulatory uncertainties that had been created for 

farmers, foresters, irrigators, water resource managers, and public 

health agencies that need to utilize pesticides or other products in 

and around water bodies. The EPA rule in question had exempted 

from the Clean Water Act permits pesticides applied near or into 

7

water bodies if those pesticides were applied in accordance with the 

Federal pesticides law, known as the Federal Insecticide, Fungicide, and Rodenticide Act or FIFRA. The regulatory uncertainties 

the EPA rule sought to adjust stem from a number of Federal court 

cases brought by environmental activists with an anti-pesticide 

agenda. 

EPA’s rule was challenged in several Federal circuit courts and 

consolidated in the 6th Circuit which vacated the rule in January 

2009 in the National Cotton Council case. In vacating the rule, the 

6th Circuit substituted judge-made policy choices for reasonable 

agency interpretations of the law. In the process, the court undermined the traditional understanding of how the Clean Water Act 

interacts with other environmental statutes and judicially expanded the scope of the Clean Water Act regulation further into 

areas and activities not originally envisioned or intended by Congress. 

For example, the court’s ruling is a sweeping expansion of the 

definition of point source discharge under the Clean Water Act. The 

ruling opens the door to allowing other courts to extrapolate from 

the logic of calling a sprayed pesticide from a nozzle or sprayer a 

discharge of pollutants from a point source, to considering the 

broad range of other activities involving nontraditional types of discreet sources such as aerial, fire suppression, applying fertilizer, 

and emissions from the stacks of factories, power plants, and automobile tailpipes as also being discharges of pollutants from a point 

source. 

Future activists litigates can be expected to rely on the 6th Circuit’s decision—offensively used as a weapon—to expand the scope 

of the Clean Water Act permitting into still additional areas and 

activities not originally envisioned or intended by Congress. As a 

result of this judicial intrusion into EPA’s reasonable interpretation 

of the Clean Water Act, EPA is now having to develop and soon 

will be issuing a final Clean Water Act permit for certain pesticide 

applications for the court’s mandated deadline of April 9, 2011. 

This new Clean Water Act permit for covered pesticide stands to 

be the single greatest expansion of the permitting process in the 

history of the Clean Water Act program. EPA has said it can expect approximately 5.6 million covered pesticide application per 

year by approximately 365,000 applicators, virtually doubling the 

number of entities currently subject to the Clean Water Act permitting. 

Requiring a permit on the Clean Water Act in addition to an approval under FIFRA adds delays, costs, and other burdens on both 

the regulatory agencies who have to issue the permits and those 

who need to get a permit. Without increasing environmental protection it also could result in significant environmental and human 

health impacts by hampering the ability to respond to disease and 

pest outbreaks. With this unprecedented judicially triggered expansion of government regulation comes very real burdens not only for 

the EPA, but also for the states that will have to issue the permits, 

those whose livelihoods depend on the use of pesticides, and even 

everyday citizens going about their daily lives. 

Most states will face increased financial and administrative burdens in order to comply with the new permitting process. In a time 

8

when too many states are being forced to make difficult budgetary 

cuts, we cannot afford to impose more financial burdens on them 

especially when those burdens do nothing to advance the goal of 

cleaner water. The new and duplicative permitting process also imposes enormous burdens on pesticide users who encompass a wide 

range of individuals from state agencies, municipalities, mosquito 

control districts, water districts, pesticide applicators, farmers, 

ranchers, forest managers, scientists, and even every day citizens 

who rely on the benefits provided by pesticides in their responsible 

application. Compliance will no longer mean simply following instructions on a pesticide label. Instead, applicators will have to 

navigate a complex permitting process and gain a formality with 

all permits, conditions, and restrictions. 

Along with increased administrative burdens comes an increased 

monetary burden. In addition to the cost of coming into compliance, 

pesticide users will be subject to an increased risk of litigation particularly from anti-pesticide activist groups and exorbitant fines. 

Given the fact that a large number of users have never been subject to the Clean Water Act and its permitting process, even a good 

faith effort to be in compliance could fall short. 

Unless Congress acts, hundreds of thousands of farmers, foresters, and public health pesticide users will go on to the next season under the threat of lawsuits and exorbitant fines. Congress 

needs to return the state of pesticide regulation to the status quo

before the activists courts got involved. Congress needs to do that 

by considering narrowly crafted legislation that will address the 

6th Circuit’s finding in the National Cotton Council case. Such legislation should ensure that the proper use of pesticide product is 

regulated under FIFRA and not the Clean Water Act. Under 

FIFRA, EPA makes sure that the use of the pesticide will not result in unreasonable adverse effects on the environment. 

EPA has provided us with technical assistance by drafting a very 

narrow proposed legislation. We need to take a close look at this 

proposed legislation and see if it will accomplish our objective. I 

welcome our witnesses to our hearing today and look forward to 

hearing from each of you. Thank you, Madam Chair. At this time 

I yield time to the Ranking Member of the Water Resources Subcommittee, Mr. Bishop. 

OPENING STATEMENT OF HON. TIMOTHY H. BISHOP, A 

REPRESENTATIVE IN CONGRESS FROM NEW YORK 

Mr. BISHOP. Thank you. I thank the Chairman of the Subcommittee, and I thank Madam Chair for scheduling this hearing, 

and I thank you for inviting me today’s hearing. As I hope my colleagues on the Transportation and Infrastructure Committee are 

aware, the rules of the T&I Committee reserve the right for the Minority to call witnesses of our choosing to attend its hearings. Specifically the rules of the Committee state that the Minority—‘‘the 

Minority party Members on the Committee or Subcommittee shall 

be entitled to call witnesses selected by the Minority to testify’’ 

with respect to the subject matter of the hearing. By tradition of 

our Committee, this rule protecting the right of the Minority to call 

witnesses has been honored by accommodating these witnesses on 

the same day as the Majority witnesses. 

9

Unfortunately, the process used in scheduling this hearing, and 

on honoring the Minority’s request to have witnesses to attend the 

hearing seems inconsistent with both the letter and the spirit of 

our Committee rules and with the better traditions of the Subcommittee on Water Resources and the Environment. Within 24 

hours of learning of this hearing, the Minority staff provided the 

Majority staff of both Subcommittees with the names of two respected witnesses knowledgeable on the presence of pesticide in the 

nation’s surface and ground waters and on the potential beneficial 

impacts of clean water coverage of pesticide application. 

The first witness we recommended was a representative of the 

U.S. Geological Survey to testify on the Survey’s 2006 report related to the presence of pesticides in surface waters and ground 

waters throughout the United States. In their 2006 report, the 

USGS found that pesticides are frequently present in streams and 

ground water. USGS also found that pesticides have been found in 

streams at levels that exceed the human health benchmark and 

that pesticide concentrations in many streams are having adverse 

affects on aquatic life and fish-eating wildlife. Today’s hearing will 

discuss draft legislation that effectively relies on the status quo to 

protect human health and the environment from the adverse effects of pesticides. It is therefore relevant that Members understand how, under current law, pesticides are showing up in U.S. 

waters and ground waters. To that end, I ask unanimous consent 

that the USGS circular, Pesticides in the Nation’s Streams and 

Groundwater, be made part of the formal record. 

Mr. GIBBS. Do you mean the testimony that the USGS has submitted for the record? Is that what you are referring to? 

Mr. BISHOP. That is what I mean. Yes, that is what is I am referring. 

Mr. GIBBS. And also——

Mr. BISHOP. I’m sorry, Mr. Chairman, I also mean, the—this report——

Mr. GIBBS. Okay. 

Mr. BISHOP.—entitled Pesticides in the Nation’s Streams and 

Ground Water 1992–2001.

[The document referred to is located on p. 86.] 

Mr. GIBBS. Okay. And I also wanted to be clear that your preferred witness was the United States Geological Survey and they 

were asked and they wanted to submit a written report instead of 

oral testimony. 

Mr. BISHOP. My understanding is that the witness was invited 

just this past Monday and then it would not have been possible for 

the witness to come to a hearing with less than 48 hours notice. 

Mr. GIBBS. Okay, well that wasn’t—that——

Mr. BISHOP. May I finish my opening statement? 

Mr. GIBBS. Okay. It is my understanding the actual letter went 

out but they decided on Saturday to submit for the written record. 

Okay——

Mr. BISHOP. May I continue my opening statement? 

Mr. GIBBS. Okay. 

Mr. BISHOP. Thank you. The second witness we had recommended was the lead attorney in the National Cotton Council

case. In my view, this witness would have been well suited to exVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
10

plain to the Subcommittee Members why stakeholders challenged 

the 2006 rulemaking of the Environmental Protection Agency related to pesticides in the Clean Water Act. Because of the relevance 

of this issue I ask unanimous consent that Mr. Charles Tebbutt be 

given 5 legislative days to submit a written statement for the 

record. 

Mr. GIBBS. Is there any objections to that? So moved. Hearing 

none, they are so moved into the record. 

[The document referred to was submitted after the official hearing record closed. The statement of Mr. Tebbutt is retained in Committee files.] 

Mr. BISHOP. Thank you, Mr. Chairman. 

Mrs. SCHMIDT. As the former Chairman and the Ranking Member of the Full Committee on—oh I am sorry. 

Mr. BISHOP. I am not done yet. That is okay. That’s okay. 

Mr. GIBSON. Would you yield for just one second? 

Mr. BISHOP. Of course. 

Mrs. SCHMIDT. Thank you, I am going to yield to Mr. Peterson 

since he has got to run. 

OPENING STATEMENT OF HON. COLLIN C. PETERSON, A 

REPRESENTATIVE IN CONGRESS FROM MINNESOTA 

Mr. PETERSON. I appreciate you yielding. I have to be in another 

place right now so I have a statement I would just like to introduce 

for the record and then yield back to my friend.

PREPARED STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE IN

CONGRESS FROM MINNESOTA

Good afternoon, and thank you to the Subcommittee Chairs and Ranking Members for holding today’s hearing and welcome, Members of the Transportation and 

Infrastructure Committee, to the Agriculture Committee. 

I’m hearing from a lot of the guys in my district and they are really worried about 

these new regulations coming from folks who have no connection to agriculture; 

folks who just don’t get it. 

My guys have just about had it with these lawsuits and regulations and frankly, 

I’m getting sick of those outside of agriculture telling farmers how to do their jobs. 

I’m afraid that if we don’t do something about this many producers could be driven 

out of business. 

In 2009 the 6th Circuit Court of Appeals overturned a 2006 EPA rule that exempted registered pesticides from the permitting requirements under the Clean 

Water Act. This decision pre-empts the Federal Insecticide, Fungicide, and 

Rodenticide Act, or FIFRA by the Clean Water Act for the first time in the history 

of either statute. This was not the intent of Congress. 

This permitting requirement places an enormous burden and responsibility on the 

states and the EPA. I think I speak for many of us when I say the last thing we 

need is more regulation coming from the EPA. I think they’re out of control and 

should get back to focusing on stuff in the real world. 

Last fall I introduced legislation that would amend both the Clean Water Act and 

FIFRA to prohibit permits for pesticide application when pesticides are applied consistent with FIFRA. 

I am pleased to see a discussion draft before us today that would address the 

court’s interpretation of the Clean Water Act. I appreciate the EPA’s timely response to the request for technical assistance in developing this draft language. 

Unless we can work together and come to a solution, we will likely continue down 

this path of lawyers and judges with no connection to agriculture making decisions 

about how our producers must operate. The courts are not the place to decide agriculture policy. 

Again, I thank the Chairs for holding today’s hearing and look forward to hearing 

from today’s witnesses.

11

Mrs. SCHMIDT. Perfect. Now we will continue. I am sorry, Mr. 

Bishop. 

Mr. BISHOP. I have about a minute left. 

Mr. PETERSON. Keep up the good work. 

Mr. BISHOP. The fact that two witnesses recommended by the 

Minority are not here to testify today represents in my view a 

missed opportunity to address the important policy questions before us today. The lack of opposing views on the witness panel 

hinders our ability to even discuss the very issues that Members 

are struggling to understand. That is, the potential benefits and 

drawbacks from regulating the discharge of pesticides into U.S. waters under either the Federal Insecticide, Fungicide, and 

Rodenticide Act, FIFRA or the Clean Water Act. The data gathered 

by the USGS and by individual states clearly show that water 

throughout the United States are already impaired by pesticides 

and in certain places at levels that posed an elevated risk to 

human health and the environment. The policy implications of this 

fact, though seem less certain. Does this fact mean that the status 

quo is protective of human health and the environment from the 

adverse affects of pesticide? Or does it mean that the Clean Water 

Act could provide another tool for preventing these pesticides from 

entering U.S. waters, or does it mean that the current structure or 

enforcement of FIFRA may require strengthening? If there is a desire for Members to undo the actions of the Sixth Circuit Court of 

Appeals, I believe it is in the best interest of all of our Members 

to fully understand what the implications of our actions might be. 

It is my hope that future hearings on this important issue will 

more fully explore the challenging policy questions of how to best 

address the issue of pesticides in the water related environment. I 

thank you for your indulgence. I yield back the balance of my time. 

Mrs. SCHMIDT. Thank you, Mr. Bishop, and I would like to ask 

unanimous consent that opening statements made by other Members of this Committee be submitted for the record and they have 

5 legislative days to do so that that the witnesses may begin their 

testimony and to ensure that there is ample time for questions. 

We would now like to welcome to the table our first panel of witnesses. Oh, I am sorry. I think what I said for the time frame that 

we are in if you could just submit them for the record because——

Ms. NAPOLITANO. I am sorry, Madam Chair, but I don’t have 

them for the—in writing. 

Mrs. SCHMIDT. Can you do it——

Ms. NAPOLITANO. There are some key issues that I would like to 

just bring up real quickly. 

Mrs. SCHMIDT. One minute because I really want to give Dr. 

Bradbury——

Ms. NAPOLITANO. That is fine. One minute will do. 

Mrs. SCHMIDT. Okay. Thank you. 

OPENING STATEMENT OF HON. GRACE F. NAPOLITANO, A 

REPRESENTATIVE IN CONGRESS FROM CALIFORNIA 

Ms. NAPOLITANO. I am from California as you all know and I was 

serving in the State Assembly and looked at many of the issues 

that we dealt with in delisting and listing of pesticides. I have in 

my district, which is the size of Connecticut, a contaminated site 

12

with pesticides, herbicides, fertilizers, and jet fuel that is over $100 

million and it has another 10, 15 years to clean up. That is because 

of all these things happening 60 years ago. What we are looking 

at is contaminated aquifers and eventually some of that drinking 

water may not be able to be used because it needs to be cleaned 

up at taxpayer expense most of the time because the PRPs are no 

longer alive or in business. That is why California has gone to all 

great measures to be able to have these through 2006. So I would 

like to—I will put something in writing Madam Chair, but I did 

want to bring that to the table. 

Mrs. SCHMIDT. And we will give you at least 5 legislative days 

to do that. Thank you. In fairness, is there anyone on the—very 

good. Dr. Bradbury, thank you so much for your indulgence in this. 

Sorry we are so late in getting this together, but you are the Director of Office of Pesticide Programs in the U.S. Environmental Protection Agency, and we welcome you to this Committee, and you 

may begin. 

STATEMENT OF DR. STEVEN BRADBURY, DIRECTOR, OFFICE 

OF PESTICIDE PROGRAMS, U.S. ENVIRONMENTAL

PROTECTION AGENCY, WASHINGTON, D.C. 

Dr. BRADBURY. Thank you. Good afternoon, Chairwoman 

Schmidt and Chairman Gibbs, Ranking Members Baca and Bishop 

as well as other Members of the Subcommittees. My name is Steven Bradbury and I serve as the Director of the Office of Pesticide 

Programs in the Environmental Protection Agency. I am pleased to 

appear before you today to discuss how EPA regulates pesticides to 

protect our nation’s water resources under the Federal Insecticide, 

Fungicide, and Rodenticide Act, FIFRA. EPA’s Office of Pesticide 

Programs is charged with administering FIFRA under which we 

must ensure that the use of a pesticide does not cause unreasonable adverse affects in the environment. When used properly, pesticides provide significant benefits to society such as controlling 

disease causing organisms, protecting the environment from 

invasive species, and fostering a safe and abundant food supply. 

FIFRA’s safety standard requires EPA to weigh these types of 

benefits against any potential harm to human health and the environment that may result from using a pesticide. EPA has broad authority to restrict the way a pesticide may be used to lower its 

risks, and EPA will only allow use of the pesticide only if we think 

the benefits outweigh the remaining risks. Over the last 30 years, 

EPA has developed a highly regarded program for evaluating pesticide safety and making regulatory decisions. EPA’s reputation 

rests on a world renowned expertise in pesticide risk assessment 

and an approach to decision making that is widely considered to be 

a model for transparency and openness. 

FIFRA requires that before any pesticide may be sold or distributed in the United States, EPA must license its sale through a 

process called registration. FIFRA also requires EPA to systematically reevaluate pesticides that are registered against contemporary scientific and safety standards. EPA’s registration and reevaluation processes are transparent and open to everyone. We provide multiple opportunities for the public to review our work and 

provide comments. For registration we announce receipt of applicaVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
13

tions for pesticide products containing new active ingredients and 

we publish and take comment on our risk assessment and proposed 

decisions. 

Our pesticide reevaluation program provides opportunities for 

public comment on preliminary work plans, risk assessments, and 

proposed regulatory decisions. EPA’s registration and reevaluation 

decisions are based on the best available peer reviewed science. 

EPA evaluates a comprehensive battery of studies submitted by the 

pesticide companies as well as other studies that are published in 

the scientific literature. EPA uses peer reviewed procedures to analyze data to produce risk assessments covering a wide range of potential effects on both humans and the environment. When we encounter significant scientific challenges we turn to the FIFRA scientific advisory panel which is a Federal advisory committee for 

independent and expert scientific peer review. 

Using the studies mentioned previously, EPA develops and 

makes publicly available aquatic life effects benchmarks for pesticide active ingredients and their degradates. EPA also calculates 

expected exposure concentrations of pesticide residues that may be 

present in surface and groundwater as a result of direct application, run-off, or drift. EPA uses the effect and exposure values to 

assess risk to aquatic ecosystems as well as to humans from consumption of drinking water. 

Once a risk assessment is complete, EPA can impose under 

FIFRA a variety of mitigation measures if unacceptable risks are 

identified. For risks arising from pesticides in water, mitigation 

measures could include reducing application, frequency, or rates, 

prohibiting certain application methods, establishing no spray buffer zones around water bodies, or only allowing use of the product 

by trained and certified applicators, or other restrictions. These 

measures are typically national in scope, but increasingly we are 

designing protective restrictions that apply in specific geographic 

areas to address risks arising from local conditions. 

These requirements are communicated to pesticide users through 

a product’s labeling. EPA collaborates with states and tribes on a 

voluntary submission of water monitoring data for consideration in 

risk assessments and risk management decisions. EPA reviews 

monitoring data to identify if pesticides are found in water at levels 

exceeding human health or environmental safety benchmarks. If 

ongoing monitoring or other information indicates that there are 

unsafe levels of pesticide residues in water, EPA will impose additional risk mitigation measures as needed to ensure the pesticide 

meets the statutory standard. 

In conclusion, the regulatory restrictions imposed by EPA under 

FIFRA directly control the amount of pesticides that can reach 

aquatic ecosystems. EPA uses its full regulatory authority under 

FIFRA to ensure that pesticides do not cause unreasonable adverse 

effects on human health or the environment including our nation’s 

water resources. Thank you for the opportunity to testify and I look 

forward to answering your questions. 

[The prepared statement of Dr. Bradbury follows:]

14

PREPARED STATEMENT OF DR. STEVEN BRADBURY, DIRECTOR, OFFICE OF PESTICIDE

PROGRAMS, U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C. 

Introduction 

Good afternoon, Chairwoman Schmidt and Chairman Gibbs, Ranking Members 

Baca and Bishop, as well as other Members of the Subcommittees. My name is Steven Bradbury and I serve as the Director of the Office of Pesticide Programs (OPP) 

in the U.S. Environmental Protection Agency (EPA). I am pleased to appear before 

you today to discuss how EPA regulates pesticides under the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) to protect our nation’s water resources. I 

will begin by describing our commitment to the principles of transparency and using 

the best available, peer-reviewed science. These principles undergird the two major 

components of EPA’s program for regulating pesticides—the initial registration of 

pesticide products and the ongoing reevaluation of past decisions. 

EPA’s Programs for Regulating Pesticides 

EPA’s Office of Pesticide Programs is charged with administering FIFRA, under 

which we must ensure that use of a pesticide does not cause ‘‘unreasonable adverse 

effects on the environment.’’ When used properly, pesticides provide significant benefits to society, such as controlling disease causing organisms, protecting the environment from invasive species, and fostering a safe and abundant food supply. 

FIFRA’s safety standard requires EPA to weigh these types of benefits against any 

potential harm to human health and the environment that might result from using 

a pesticide. The Agency has broad authority to restrict the way a pesticide may be 

used in order to lower its risks, and EPA may allow use of the pesticide only if we 

think the benefits outweigh the remaining risks. 

Over the last 30 years EPA has developed a highly regarded program for evaluating pesticide safety and making regulatory decisions. EPA’s reputation rests on 

our world renowned expertise in pesticide risk assessment. Our approach to decision 

making is also widely considered to be a model for transparency and openness. 

Using this approach, the Agency makes decisions consistent with scientific information and protective of public health and the environment. 

Initial Registration and Ongoing Reevaluation of Pesticides 

FIFRA generally requires that, before any pesticide may be sold or distributed in 

the United States, EPA must license its sale through a process called ‘‘registration.’’ 

During registration EPA has examined every pesticide product that is being lawfully 

marketed in our country. In addition, FIFRA also requires EPA to reexamine previously approved pesticides against current scientific and safety standards. A major 

effort to revaluate old pesticides occurred from 1988 to 2008 through a program 

called ‘‘re-registration,’’ and, as required by law, EPA is now systematically revisiting all of its past pesticide registration decisions through a new program called 

‘‘registration review.’’ Any restrictions on the use of a pesticide identified through 

registration, re-registration, or registration review as necessary for safe use appear 

on product labels. State lead agencies enforce proper use of pesticides. 

Both the registration and reevaluation programs for evaluating the safety of pesticides rest on the same two fundamental principles: basing decisions on the best 

available, peer-reviewed science and making our decisions through a process that 

is transparent and open to everyone. 

Quality Scientific Assessments 

EPA holds itself accountable to the public for ensuring the quality of its scientific 

risk assessments. EPA looks at all available scientific data from every source—

whether from pesticide companies, other governments, or the published literature, 

and we look closely at every study. EPA reaches its conclusions through a systematic, objective evaluation of all relevant information that uses scientifically peer reviewed, documented procedures at each step. 

Under FIFRA, the pesticide companies shoulder the cost of performing safety 

studies on pesticides they request to be registered. EPA regulations establish a rigorous battery of tests necessary to gain approval for a pesticide. A typical new agricultural pesticide must undergo over 100 different tests to characterize its potential 

risks. This data set provides, among other things: detailed information on where 

and how the pesticide will be used; a full battery of animal models studies to assess 

human health toxicity; data on the fate of the pesticide in the aquatic and terrestrial environments; and a suite of toxicity studies representing broad categories of 

wildlife and plants—birds, mammals, fish, terrestrial and aquatic plants, algae, insects, and other invertebrates. The pesticide companies submit these studies for review, and we use these and other scientific data to develop detailed risk assessments for every use of each pesticide. If a test is not scientifically sound or if EPA 

15

needs more information, EPA may require a company to conduct additional studies. 

Further, because of the critical role that scientific data play in EPA decision making, FIFRA requires registrants to report in an ongoing fashion all information relating to the potential adverse effects of their products on human health or the environment, for example, new research. 

Our first question is whether the results are scientifically sound. To assist in this 

review, EPA has issued both guidelines that provide instruction about how to conduct different types of studies and Good Laboratory Practice (GLP) regulations that 

describe procedures to ensure high quality data from laboratory studies. The reviewer double checks the analysis reported in a study and compares results from 

one test with other studies to detect inconsistencies. It is not unusual that EPA will 

disagree with the conclusions reached by an individual researcher. Then, following 

EPA risk assessment guidelines, we integrate the data to evaluate whether the pesticide poses potential risks to humans or the environment. 

To ensure we reach the sound scientific conclusions, study reviews and risk assessments undergo scientific peer review. When we encounter a significant scientific 

controversy, we turn to the FIFRA Scientific Advisory Panel (SAP) for independent, 

external, expert scientific peer review. The SAP is a Federal advisory committee 

and, thus, must comply with requirements for balance, objectivity, openness, and 

transparency. The Government Accountability Office commended the procedures 

used by the FIFRA SAP to assure balance and the absence of any conflicts of interest among the people who serve on panels. The Office of Government Ethics has also 

reviewed and commended highly the operations of the SAP. 

An Open and Transparent Process 

EPA believes in an open and transparent process. By ‘‘open’’ we mean that every 

member of the public—whether from a stakeholder group or simply an interested 

citizen—can, at any time, provide information for consideration, and everyone may 

comment on our proposed decisions and the reasons for them. To make comment 

opportunities meaningful, our process must be transparent. By ‘‘transparent’’ we 

mean that all of the information we have considered, and the way we analyze the 

data, is available to the fullest extent permitted by law. 

Our regulatory processes typically provide several opportunities for comment. 

During registration review, for example, there are chances to comment on: a preliminary workplan on how the Agency will conduct the reevaluation; a preliminary 

assessment of the pesticide’s risks; a written response to public comments on the 

preliminary risk assessment; and a revised risk assessment. We also invite comment 

on what measures are needed to address any risk concerns. We may hold public 

meetings for interested stakeholders to explain our positions and to receive input. 

Finally, we present our conclusions in a Registration Review Final Decision or similar documents. These documents contain our final risk assessment, our conclusions 

regarding whether the pesticide meets the statutory standard for re-registration, 

and if not, what regulatory measures would be necessary to mitigate identified 

risks. Similarly, we announce receipt of applications for registration of pesticide 

products containing new active ingredients and invite public comments. Then, before 

we decide whether to register such products, we publish and take comment on our 

risk assessment and proposed decision. 

In fact, whether we are dealing with issues concerning a specific pesticide or 

broader policy development, we actively reach out to and work closely with Congress, our state and Federal regulatory partners, the agricultural community, nongovernmental organizations, the general public, and all of our stakeholders. 

Risk Assessment 

EPA uses peer reviewed procedures to analyze data to produce risk assessments, 

covering a wide range of potential effects on both humans and the environment. Although the data and models used will differ depending on what type of effect we 

are evaluating, the broad purpose of our risk assessments is to determine what levels of a pesticide will remain in the environment after use and how those levels compare with doses that could harm humans or the environment. 

For example, we follow the framework set out in the EPA-wide Ecological Risk 

Assessment Guidelines when assessing potential for a pesticide to cause adverse effects on the environment. The basic approach to ecological risk assessment has two 

components, a hazard evaluation and an exposure estimate. Toxicity studies in 

twenty or more different species generate data that permit EPA to determine levels 

for both short term and long term exposures which would be unlikely to harm wildlife and plants. Using these studies, EPA has developed and made publicly available 

‘‘aquatic life benchmarks’’ for over 200 pesticide active ingredients and their 

degradates. Our benchmark values are estimates of the levels of residue in water 

16

below which the chemicals are not expected to harm aquatic life and aquatic ecosystems as a result of either short term or chronic exposure. The public and state 

and Federal agencies can use these values to assess the risks posed by any levels 

of pesticide found by monitoring programs. 

EPA also calculates exposure estimates using peer-reviewed models and scientific 

data on the persistence and mobility of each pesticide. A key value is an estimate 

of the concentrations of pesticide residues that may be present in surface waters as 

a result of direct application, runoff, or drift. EPA uses these values both in assessing risks to humans from consumption of drinking water, as well as in the evaluation of risks to aquatic ecosystems. The models employ data in such a way that the 

resulting estimates represent the amounts of pesticide that more highly exposed humans, wildlife, and non-target plants will likely receive. EPA then compares the toxicity of the pesticide with the expected environmental exposure to assess whether 

there is a potential risk. 

Risk Management 

The risk assessment then goes to EPA’s risk managers to consider whether regulatory actions may be appropriate to mitigate the potential risks. Under FIFRA the 

Agency can impose a variety of risk mitigation measures—ranging, for example, 

from changes to how the pesticide is used to prohibition of specific uses or cancellation of all products containing a particular active ingredient—that ensure the use 

of the pesticide will not cause unreasonable adverse effects on the environment. 

When we are concerned about the risks arising from pesticides in water, we may 

require a reduction in application frequency or rates, a prohibition of certain application methods, the establishment of no-spray buffer zones around water bodies, a 

requirement that limits use only to trained and certified applicators, or other restrictions. These measures are typically national in scope, applying to all users 

throughout the country, but increasingly, we are designing protective restrictions 

that apply in specific geographic areas to address risks arising from local conditions. 

These requirements are communicated to users through the labeling of the pesticide 

product. The use directions and restrictions in labeling are enforceable under FIFRA 

section 12(a)(2)(G), which makes it unlawful to use a registered pesticide in a manner inconsistent with its labeling. 

Pesticide Reevaluation 

In addition to requiring an initial review of every pesticide product through the 

registration program, FIFRA allows EPA to take regulatory actions as necessary to 

revise the restrictions on the use of a pesticide and directs EPA to periodically revisit past regulatory decisions on previously registered pesticides through the re-registration and registration review programs. 

The re-registration program was conducted from 1988 to 2008 during which EPA 

reexamined all pesticide products containing an active ingredient that was initially 

registered before 1984. Re-registration evaluated 613 different pesticide active ingredients/active ingredient groups, using contemporary scientific and regulatory standards. Re-registration led to extensive changes in the way pesticides are allowed to 

be used that has significantly reduced risks to human health and the environment. 

As a result of re-registration, EPA cancelled all products containing 229 different 

pesticide active ingredients and imposed many changes on the ways that most of 

the other 384 pesticide active ingredients are used. 

Changes in science, public policy, and pesticide use practices continue to occur, 

meaning that prior regulatory decisions can become outdated over time. In 1996, 

Congress unanimously passed the Food Quality Protection Act (FQPA), which 

among other things, mandated a new, ongoing program: ‘‘registration review.’’ 

Under the registration review program, we must reevaluate all previously registered 

pesticides at least every 15 years to make sure that products in the marketplace 

can still be used safely. The new registration review program makes sure that, as 

the ability to assess risk evolves and as public policy and pesticide use practices 

change, all registered pesticides continue to meet the statutory standard of no unreasonable adverse effects. 

As one part of the registration review program, EPA has worked with state regulatory officials to develop a process for the voluntary submission of state and tribal 

surface and ground water quality data for consideration in exposure characterizations for ecological risk assessments and in risk management decisions. EPA will 

review these data to identify any pesticides that are being found in ground or surface water, as a result of lawful use, at levels which exceed existing human health 

or environmental safety benchmarks. If ongoing monitoring or other information indicates that there are unsafe levels of pesticide residue in water, EPA will impose 

17

additional risk mitigation measures, as needed to ensure the pesticide meets the 

statutory standard. 

Conclusion 

The regulatory restrictions imposed by EPA under FIFRA directly control the 

amount of pesticide available for transport to surface waters, either by reducing the 

absolute amount of pesticide applied, or by changing application conditions to make 

transport of applied pesticide less likely. In sum, EPA uses its full regulatory authority under FIFRA to ensure that pesticides do not cause unreasonable adverse 

effects on human health or the environment, including our nation’s water resources.

18

ATTACHMENT


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Mrs. SCHMIDT. Thank you very much, Dr. Bradbury. Very excellent testimony and your written is even more comprehensive than 

your oral. I am going to ask a few questions and then I am going 

to defer to the Ranking Member on the Nutrition and Horticulture 

Subcommittee and then to Mr. Gibbs who then will be able to ask 

questions and then Mr. Gibbs can ask Mr. Bishop and then we will 

recognize any other Committee person based on their seniority who 

is present. So Mr.—Dr. Bradbury, could you comment on the discussion draft and whether it takes us back to before the Cotton 

Council decision? 

Dr. BRADBURY. EPA’s office of General Counsel provided legal assistance to the Committee on the question that you just raised on 

how to achieve the goal described in your question. We take our 

function in providing technical assistance to Congress seriously. 

And although I am not a lawyer, according to the Office of General 

Counsel, EPA’s legal technical assistance has been incorporated in 

the discussion draft. 

Mrs. SCHMIDT. Thank you. And has the EPA sought additional 

authority under FIFRA to address perceived problems associated 

with pesticides in surface water? 

Dr. BRADBURY. No, EPA has not sought additional authority 

under FIFRA. 

Mrs. SCHMIDT. And in—finally, are there benefits to the use of 

pesticides and if so, how does the EPA account for this during your 

review? 

Dr. BRADBURY. As I alluded to in my opening comments, pesticides provide significant benefits to our society. These include 

controlling insects and rodents that can transmit disease, they are 

clearly very important in crop production ensuring that we have a 

safe and abundant food supply by controlling weeds, insects, pathogens in crop production. Pesticides also are important in protecting 

our private, public, and commercial dwellings by, for example, controlling termite infestations. And pesticides also are important in 

sanitizing our drinking water, recreational waters, as well as serving as disinfection—disinfectant products in our homes as well as 

in hospitals and nursing homes. 

So EPA takes a look at the benefits associated with the pesticide 

that is either proposed to come into the marketplace, or as we reevaluate existing pesticides that are in the marketplace. As we go 

through our risk assessment and risk management decision making, the first step is to determine whether or not the risks posed 

by the pesticide reach a level of concern. If we determine that the 

pesticides are not going to cause concern for human health or the 

environment we don’t need to do a benefits analysis because we 

have assured ourselves that there is no unreasonable adverse effects that would occur with the product. 

If we determine that there may be concerns that we are exceeding our threshold of risk concern, one of the first steps we do is 

take a look at how that product is used. And therein, many times 

we can make adjustments to the application rate or the amount 

that is used or other modest or minor alterations or adaptations to 

the current product and then the product is safe and it can be used 

with minimal impact for the grower, for example. If we find that 

those modifications aren’t sufficient and have to look into changes 

22

in the product’s use that could be more significant, then we will do 

an analysis to understand what the value of the current product 

is in terms of, say, crop production or other kinds of activities and 

compare that to alternatives that may be in the market and we 

take a look at to the extent alternative products in the market 

could achieve the same goals of public health protection or crop 

production. And by going through this analysis we can then make 

a conclusion to ensure that if the product is used it will obtain its 

benefits but not cause unreasonable adverse effects to human 

health or the environment. 

Mrs. SCHMIDT. Thank you. I have no further questions at this 

time so I am now going to ask Mr. Baca if he has any questions. 

Mr. BACA. Thank you very much, Madam Chair. Mr. Bradbury, 

thank you again very much for taking the time to be here with us 

this afternoon to help us better understand how EPA regulates the 

pesticides under the FIFRA. To start off with a more technical 

question, how do you assess chronic exposure to pesticides? 

Dr. BRADBURY. The methods that we use in our risk assessments 

are based on methodology that has gone through significant independent scientific peer review through a science advisory panel. 

And an area that we have had a long record of external peer review 

are the methods that we use to estimate pesticide concentrations 

in water. So when we do an analysis to estimate what the concentrations of the pesticide will be in water we use models that 

allow us to predict what the concentrations will be in various water 

types based on the use pattern of the product. In addition, we take 

a look at any monitoring data that is available and we integrate 

both the monitoring data that may be available as well as the 

model predictions of the exposure concentrations in water. And we 

will do exposure concentration estimates for drinking water sources 

and we will do exposure estimates for water bodies that are associated with aquatic life risk assessments. 

For chronic exposures, depending upon the organism that we are 

trying to protect, and could be humans, could be aquatic life, we 

have different averaging periods to make that estimate. So for example, for a long term exposure to humans we calculate yearly 

averages, lifetime averages of exposure. If we are concerned about 

effects on invertebrate species, insects that are in the water, that 

averaging period is a 21 day averaging day period. So we use our 

models to come up with estimates of what the concentrations will 

be in the water and we use the appropriate averaging period or the 

time that we will calculate that chronic exposure based on the 

focus of the risk assessment. 

Mr. BACA. Okay. How do you assess acute exposure to pesticides? 

Dr. BRADBURY. It is the same basic procedure. When we—again 

we will take a look at any monitoring data that is available and 

we will also use our models to make these predictions. When we 

make our modeling runs, our predictions using these models, it is 

based on 30 years of meteorological data and other types of data 

that we can use in developing these estimates. And so we can calculate a 30 year distribution of likely exposure concentrations in 

the water. We then pick an upper bound estimate of the potential 

exposure from an acute exposure for an acute exposure, say a 1 day 

exposure and we use that in our risk assessment. So as we have 

23

gone through the peer review process, we have gotten feedback 

from independent experts in terms of how to use these models and 

to ensure that the way we are using these models provide for a protective evaluation of acute exposure as well as chronic exposure in 

our risk assessments. 

Mr. BACA. Now, it seems from your testimony that EPA already 

has a very restraining testing and risk assessment standard for all 

pesticide producers. In fact, the state that under the FIFRA, pesticide produces—products must go through over 100 different tests 

to ensure their safety. But can you please tell us a bit more about 

how the risk actually mitigates under the FIFRA? 

Dr. BRADBURY. So after the team of scientists undertake the risk 

assessments based on the proposed use, if it is a new product or 

based on the existing use instructions, if it is product that is already in the environment, they will complete that risk assessment 

and as I said before if that risk assessment indicates that there 

aren’t any risks of concern then there is no reason to focus in on 

risk mitigation options. But if we do have risks of a concern, we 

will then go through a series of analyses looking at different ways 

that product could be used and then reevaluating what the risk picture would look like. And as I indicated in my opening comments, 

sometimes it can be as simple as changing the application rate by 

a few tenths of a pound or changing the timing between application 

times so that we change the exposure scenario and then change the 

risk picture. We can use other kinds of methods and may change 

the time of day that a product is used, so we have a variety of approaches that we can use to mitigate the risk if the risks we find 

are such that the product can’t meet that reasonable certainty of 

no harm or avoidance of an unreasonable adverse effect, we can go 

all the way up to canceling the product and not allowing the product to be on the market. So we go through a series of evaluations 

that could ultimately lead to cancellation of a product if there is 

no way to get the risk to be acceptable under the statue. 

Mr. BACA. Well, is there any reason to believe that in NPDES, 

permitting will further mitigate risk? 

Dr. BRADBURY. Well, what I can speak to today is the activities 

in my office undertake in terms of FIFRA and the work that we 

do as I have indicated before is designed to undertake risk assessments using the best available peer reviewed science, combined 

that with our risk mitigation authorities under FIFRA to ensure 

that there is not going to be unreasonable adverse effects with the 

use of a pesticide. 

Mr. BACA. Okay. Madam Chair, if I may follow—I know that my 

time has run out, but if I may ask——

Mrs. SCHMIDT. There are so many people here to ask questions. 

I know we are rushed. 

Mr. BACA. Thank you. 

Mrs. SCHMIDT. Tongue in check. 

Mr. BACA. It is my understanding that there has been some difference of opinion regarding the EPA’s estimate for additional 

amount of costs that the NPDES permitting would bring to our 

states. As you know in my home State of California is currently 

facing a $25 billion deficit. Any additional regulatory costs become 

virtually unobtainable. Can you please explain to—for our CommitVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00029 Fmt 6633 Sfmt 6601 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
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tees in greater details the process EPA uses when estimating the 

potential cost of a proposed regulation? 

Dr. BRADBURY. In a context of this general permit under the 

NPDES program the Office of Water has the primary responsibility 

in developing the proposal and the proposed permit and in my office we don’t have that direct involvement in that—those costing 

estimates. 

Mr. BACA. So how do you guys talk to one another if you don’t 

do that? 

Dr. BRADBURY. We definitely talk to each other. The expertise in 

terms of calculating the costs of a permit, how a permit is implemented in the country and the associated costs with that is the primary responsibility of our colleagues in the Office of Water. We 

could provide to the Committee some additional background information if that would be helpful in terms of the calculations that 

are associated with the proposal. 

Mr. BACA. Okay. Do you believe that the current figures EPA 

proposed for the NPDES rules around $1.7 million is a new cost 

for states is accurate? Why and why not? 

Dr. BRADBURY. Again, as the Director of the Pesticide Program, 

I don’t have immediate involvement in those calculations. The calculations that were undertaken included public comment and participation. I know the process my colleagues in the Office of Water 

use, and they reflect the agency’s best estimate as to the cost associated with the proposed permit. 

Mr. BACA. Okay. Thank you, Madam Chair, for allowing me the 

additional time. I yield back. 

Mrs. SCHMIDT. Thank you and now I will turn the attention over 

to the Chairman of the Subcommittee on Water Resources and Environment, Mr. Gibbs from Ohio. 

Mr. GIBBS. Thank you, Madam Chair. Thank you for coming in, 

Dr. Bradbury, and for your assistance and your agency’s to help resolve this issue before the growing season gets underway. It is my 

understanding that the EPA evaluates pesticides during the registration process and again during the registration review process. 

Is there an example you can discuss where the agency has addressed the problem of pesticide exposure in water through either 

the registration or registration review process? 

Dr. BRADBURY. Yes, a good example would be taking a look at 

the re-registration that EPA completed in—there are approximately 600 pesticide active ingredients that were evaluated in that 

re-registration program. And in that activity, that regulatory process approximately 1⁄3 of those products were cancelled due to unacceptable risk projections. And for the remaining approximately 2⁄3

we made significant alterations in the licensing to ensure no unreasonable adverse effects would occur. The organophosphate insecticides are one group of products that were in that re-registration 

program and some examples of the activities, the risk assessment, 

and risk management decisions that we undertook made significant 

changes in dozens of those organophosphate pesticides. In some 

cases it required vegetative buffer strips of between 10 feet and 800 

feet to minimize the likelihood that pesticide runoff could get into 

receiving bodies. For dozens of pesticides we also took a look at aerial application and prohibited aerial application for a number of 

25

products so that we would minimize a potential spray drift into receiving bodies. And we also changed application rates and application frequency requirements on 10–12 pesticides that covered a 

number of crops. These are examples of the kinds of mitigation 

measures that we could put into play to protect water resources. 

Mr. GIBBS. Great. How does the EPA pesticide program account 

for exposure through drinking water when evaluating dietary exposure to pesticides? 

Dr. BRADBURY. The exposure modeling and the evaluation of existing monitoring data that I described previously on the question 

about aquatic ecological risk is the same basic framework that we 

use for assessing exposure to humans. In this case the scenarios 

that we are doing our modeling on are based on drinking water reservoirs and sources of drinking water for populations across the 

country. And again, using scientifically peer reviewed models we 

can estimate drinking water concentrations at various exposure 

times from a single day exposure, hour exposure, to a lifetime exposure. And we use those estimates of chronic exposure in the drinking water and we also combine that with any residues that could 

be occurring in food due to the pesticide and do an aggregate exposure estimate and then a risk estimate. So we use the same basic 

tools of modeling and monitoring data and we combine that information with any residues that may be in food to have a complete 

holistic assessment of the potential risk of the chemical. 

Mr. GIBBS. This is my final question. Are there examples of pesticide where EPA has identified an unreasonable risk to surface 

water and has taken action to phase out that chemical? 

Dr. BRADBURY. I think one example that is illustrative of the 

topic we are talking about today goes back to the re-registration 

program and the work that we were doing in looking at the 

organophosphate pesticides. One of those pesticides is Diazinon, in 

the early 2000’s as we were taking a look at that product and its 

reevaluation, we were looking at the monitoring data that was 

coming from the USGS as they were doing their 10 years review. 

With their information, combined with our modeling information, 

we came to the conclusion that in urban waters, urban streams, 

streams in residential areas that there were excessive levels of the 

product in the water that could cause adverse effects to aquatic 

vertebrates, insects in this case. And through those concerns as 

well as other concerns in the residential area we made a decision 

to phase out the use of Diazinon in the residential setting. And 

since the time of that decision through USGS data that is coming 

in the concentrations of Diazinon in the water bodies have dropped 

between 20 and 40 percent just over the last couple of years as that 

phase out was implemented. 

Mr. GIBBS. Thank you. I will turn it over to the Ranking Member 

of the Water Resources and Environment Subcommittee, Mr. 

Bishop. 

Mr. BISHOP. Thank you, Mr. Chairman. And Dr. Bradbury, thank 

you for your testimony. Clearly the threshold issue here is whether 

or not the current FIFRA process provides sufficient protection to 

our nation’s waters or whether enforcement under the Clean Water 

Act would provide an additional tool. So what is currently on the 

table is a draft proposal for a pesticide general permit under the 

26

Clean Water Act that as I understand it would essentially require 

pesticide applicators to do two things: first, require that they be in 

compliance with existing FIFRA requirements, and second that 

they pursue a set of practices that are generally lumped under the 

heading of integrated pest management. Is that correct? 

Dr. BRADBURY. Yes, that is my understanding. 

Mr. BISHOP. So let me ask you a couple of questions about current FIFRA process. Under the current FIFRA implementation 

process are pesticide applicators required to be trained? 

Dr. BRADBURY. If it is a restricted use pesticide, yes, they have 

to undergo a training in some——

Mr. BISHOP. But some may apply without training, is that correct? 

Dr. BRADBURY. If it is a general use pesticide, yes. 

Mr. BISHOP. Okay. Are the applicators required to maintain and 

calibrate their equipment? 

Dr. BRADBURY. The use instructions for the restricted use pesticide will specify the acceptable rates associated with the application. And in the context of doing that, the performance outcome 

would be that they are using their equipment properly to ensure 

that they don’t exceed the rates that are specified on the label. 

Mr. BISHOP. Okay. Are they required to mix and load pesticides 

properly? 

Dr. BRADBURY. Yes. 

Mr. BISHOP. Okay. Are they required to properly dispose of used 

pesticide containers? 

Dr. BRADBURY. We have regulations that specify the process for 

dealing with used pesticide containers, yes. 

Mr. BISHOP. Are they required to use the lowest amount of pesticide necessary to meet their—meet the needs? 

Dr. BRADBURY. The pesticide label provides an upper bound of 

the amount of pesticide that can be used to control a specific pest 

in a specific cropping scenario. The actual use rate that a grower 

may use typically is less than what the maximum amount is on the 

label as they weight the pest pressure, and the appropriate product, and the appropriate weight of the product to deal with the pest 

pressure that they have. 

Mr. BISHOP. Last question in this area—are they required to consider alternatives to pesticide application? 

Dr. BRADBURY. In our labels we do not require that. However, we 

have a very extensive pesticide stewardship program where we are 

working with USDA and others in promoting integrated pest management in our overall program in the pesticide program. But they 

are not required on the label typically. 

Mr. BISHOP. As I am sure you know, what I just have asked you 

are the basic components of what is considered an integrated pest 

management program. The implementation of those, I mean, if the 

answers to all of those were yes and if I have followed you correctly 

the answers to most of them were already yes, would you agree 

that the general use or pardon me, the pesticide general permit 

that is currently being proposed represents a reasonable response 

on the part of the EPA to this court ruling? 

Dr. BRADBURY. Well, what I can speak to today is the process 

that we use under FIFRA in terms of assuring that the use of a 

27

pesticide does not cause unreasonable adverse affects and that includes the risk assessment process that I described and the mitigation measures that are expressed through our labeling which is 

how we enforce our decisions, as well as some of the stewardship 

programs that we use. 

Mr. BISHOP. Let me ask you one other question. Under current 

FIFRA what information does the EPA receive with respect to the 

interaction of pesticides? 

Dr. BRADBURY. So with respect—is the question around mixtures 

of chemicals in water? 

Mr. BISHOP. Exactly. 

Dr. BRADBURY. Right. The analyses that we do for a pesticide active ingredient includes an evaluation of not only the active ingredient itself, but also the inert materials, the other materials that 

are in the formulated product to understand what those risks could 

be to workers as well as the acute and potentially chronic effects 

of those mixtures. So we take a look at the formulated product as 

well as the active ingredient in our risk assessments. 

Mr. BISHOP. The USGS testimony that has been submitted for 

the record indicates that the fact that there are pesticide mixtures 

adds uncertainty to the conclusions of potential adverse impacts 

that may be reached and that further research in this particular 

area is required. Do you agree with that? 

Dr. BRADBURY. Yes, and the EPA office working with our colleagues in USGS are working together, as well as others in the scientific community working on advancing the science and trying to 

understand at what levels of exposure translate to potential risks. 

Mr. BISHOP. Okay. Thank you very much. Thank you, Madam 

Chair. 

Mrs. SCHMIDT. Thank you very much. The gentleman from California, Mr. Costa has—is not a Member of the Subcommittee but 

a Member of the full Agriculture Committee and he has just joined 

us. And I have consulted with the Ranking Member and we are 

pleased that he is here and welcome any questions he might have 

of this witness. 

Mr. COSTA. Thank you very much, Madam Chairperson. I am not 

certain that Dr. Bradbury may have already addressed these 

issues, but how long have you been with the Environmental Protection Agency? 

Dr. BRADBURY. I joined the Environmental Protection Agency in 

1985. 

Mr. COSTA. Okay. So you have a bit of experience. I am looking 

at it from another segment notwithstanding the efforts that we are 

discussing here this afternoon. Integrated pest management programs on both the Federal level and as it relates to various states 

across the country has been something that has been for lack a better term a work in progress for a number of years. Hearkening 

back to my days in Sacramento when we attempted to put together 

a fairly aggressive effort in integrated pest management programs 

in some cases maybe one could state that we were ahead of the 

curve, one of the problems that we had was trying to get some level 

of harmony between the Federal level of the regulations and what 

we were doing in California and it created problems. There was an 

effort to do a harmony program to put the two together and other 

28

states that had similar efforts that were ongoing. And I guess in 

light of what we are talking about this afternoon, how you would 

make an assessment as to where the current needs are frankly, 

states that have been doing this for many years I don’t want to reinvent the wheel, I guess is what I am saying. You understand 

where I am coming from? 

Dr. BRADBURY. I think, but please jump in if I am misinterpreting your question and I will try to be more responsive. From 

a broader—from a broad perspective we spend a lot of time and effort working with our colleagues in the states, the states lead agencies that are responsible for implementing and enforcing the pesticide labeling and the pesticide administration——

Mr. COSTA. Right, both for restrictive materials, both herbicides 

and pesticides. 

Dr. BRADBURY.—right and we have a close working relationship 

with these associations of our state lead agencies——

Mr. COSTA. Right. 

Dr. BRADBURY.—to try to work through——

Mr. COSTA. And when the state law exceeds the Federal law. 

Dr. BRADBURY. And that—the states always have the ability to 

go beyond if you will——

Mr. COSTA. Yes. 

Dr. BRADBURY.—what the Federal decisions are and so that can 

play out from state to state. And we are also working with the 

states to better integrate and harmonize——

Mr. COSTA. But——

Dr. BRADBURY.—our approaches to try to reduce burden for them 

as well as try to create as much efficiency as we can. 

Mr. COSTA. Right I mean we shouldn’t reduplicate the process 

when we are talking about registering, when we are talking about 

application of protocols——

Dr. BRADBURY. Right. 

Mr. COSTA.—that deal with health and safety. So how well do 

you think you are doing that right now? 

Dr. BRADBURY. I think we are doing well. I think there is always 

room to advance and keep a well functioning relationship and continue to improve that relationship. And it is one of the areas that 

we invest our time and effort closely with our state colleagues to 

identify issues to work on, try to prioritize that so that we can try 

to increase harmonization and efficiencies for both groups. 

Mr. COSTA. Do you step back and say look at these states are in 

some sort of a criteria that you may have on a check off list saying 

you know they do all this. We don’t need to cover this? 

Dr. BRADBURY. If I am understanding our question correctly that 

to the extent a state wants to implement the—their oversight of 

the pesticide regulations, the Federal, say, licensing decisions to 

the extent that they wish to go beyond that we don’t get into their 

work. We communicate and have dialogue to make sure we all understand what their decision making is, and then other states we 

are focusing on just how to even——

Mr. COSTA. Well, in other states you become the de facto implementer and the enforcer of the regulation. 

Dr. BRADBURY. Well, to date it has not been my experience that 

we have had a situation where that has played out in terms of the 

29

states maintaining their roles and responsibilities in the overall 

FIFRA framework. 

Mr. COSTA. All right, thank you very much, Madam Chairwoman. 

Mrs. SCHMIDT. I will ask if any other Members have any questions. If not, thank you very much, Dr. Bradbury for your excellent 

testimony. We appreciate your help in this matter and now I would 

like to invite up the second panel of witnesses and I would defer 

to the Ranking Member, Mr. Baca, to introduce the first witness. 

Mr. BACA. We will wait a second until they settle down, but I 

want to thank the second panelists for coming in and addressing 

us on an important issue and it gives me great pleasure to introduce one of the panelists, but I thank all of you for being here. It 

is a pleasure to introduce Honorable John Salazar. John was appointed to the position of Commissioner of Agriculture for the State 

of California earlier this year. 

Mr. COSTA. I thought it was Colorado. 

Mr. BACA. It was Colorado. That is right. I was looking at his 

tan. I was looking, thinking about the tan he has so he must have 

been in California. 

Mr. COSTA. We will take him any day. 

Mr. BACA. For the State of Colorado earlier this year—a six generation farmer, rancher, served a 3 year term here in the House 

representing Colorado’s Third Congressional District. John also 

served as a Member of the House Agriculture Committee and 

played a key role in passing the historic Farm Bill of 2008. And 

before that time in Congress, John served in the Colorado General 

Assembly. He also served on the Rio Grande Water Conservation 

District, the Colorado Agricultural Leadership Forum, and the Colorado Agricultural Commission. He is a proud veteran and it is my 

pleasure to have served with him not only in the Agriculture Committee, but also as a Member of the Congressional Hispanic Caucus 

and also a Member of the Blue Dog Coalition. Commissioner 

Salazar, thank you for being here with us and we look forward to 

seeing you again and look forward to hearing from you. 

Mr. SALAZAR. Thank you. 

Mrs. SCHMIDT. Thank you and I would also like to welcome Commissioner Salazar to the table. In addition to all that you said, he 

is also a proud father of three boys and has a couple of grandchildren and living the good life. Welcome to the Committee. In addition, and I apologize for not knowing the rest of the witnesses as 

intimately as we know Mr. Salazar, but he was a colleague and I 

believe still is a colleague for all of us here in the House. Our second witness is Dr. Andrew Fisk, Bureau Director of the Land and 

Water Quality Maine Department of Environmental Protection on 

behalf the Association of State and Interstate Water Pollution Control Administrators from Augusta, Maine. We also have Mr. 

Dominic Ninivaggi. Did I say that correctly? 

Mr. NINIVAGGI. It is Ninivaggi. 

Mrs. SCHMIDT. Ninivaggi. 

Mr. NINIVAGGI. Yes. 

Mrs. SCHMIDT. Ninivaggi, I am sorry. Superintendent of the Division of Vector Control, Suffolk County Department of Public Works 

30

on behalf of the American Mosquito Control Association of 

Yaphank, New York. Did I say that correctly? 

Mr. NINIVAGGI. That is correct. 

Mrs. SCHMIDT. And you are accompanied by Mr. David Brown, 

Manager of the Sacramento-Yolo Mosquito and Vector Control District in Elk Grove, California. And then our final witness is Mr. 

Norm Semanko, Executive Director of the Idaho Water Users Association on behalf of National Water Resources Association in Boise, 

Idaho. Welcome gentlemen and we will begin with Mr. Salazar. 

STATEMENT OF HON. JOHN SALAZAR, COMMISSIONER,

COLORADO DEPARTMENT OF AGRICULTURE, LAKEWOOD, 

CO; ON BEHALF OF NATIONAL ASSOCIATION OF STATE

DEPARTMENTS OF AGRICULTURE 

Mr. SALAZAR. Well, thank you, Madam Chair, Chairwoman 

Schmidt, Chairman Gibbs, and Ranking Member Baca, and Congressman Costa for allowing me to be here with you and other 

Members of the Committee. Thank you for holding this important 

joint hearing today to examine the ramifications of the 6th Circuit 

decision in National Cotton Council v. EPA. It is good to be back 

with you. During my time in Congress I served on both the Agriculture and the Transportation and Infrastructure Committees and 

was recently appointed by Governor John Hickenlooper to lead the 

Colorado Department of Agriculture. I look forward to discussing 

this very important issue with you today. 

A little over a year ago I joined many of you and a bipartisan 

group of other lawmakers asking the U.S. Supreme Court to intervene in this decision. Because the Court declined to act, we are 

now in a situation where the only remedy is for Congress to intervene. I am testifying today on the behalf of the National Association of State Departments of Agriculture as well as the Colorado 

Department of Agriculture. NASDA represents the commissioners, 

secretaries and directors of the state departments of agriculture in 

all 50 states and four territories. Forty-three of NASDA’s members 

are co-regulators with EPA under the state primacy provisions of 

the Federal Insecticide, Fungicide, and Rodenticide Act named 

FIFRA. In addition to other pesticide regulatory responsibilities, 

state departments of agriculture are significant users of pesticides 

as administrators of state mosquito control programs, other wide 

area pest suppression activities, and invasive species control programs. Most of these activities will require NPDES permits in the 

wake of the 6th Circuit ruling. 

Shortly after passing the Clean Water Act, Congress also passed 

major amendments to FIFRA in 1972. It is clear that FIFRA’s legislative record that Congress intended FIFRA to be the controlling 

statute to regulate the registration, sales, and use of pesticide products. Moreover, it is clear from the House Committee Report on 

these FIFRA Amendments that Congress contemplated the impact 

of pesticides on intrastate and navigatable waters and intended 

these issues to be addressed by FIFRA, not by the Clean Water 

Act. 

It is no secret the states across the country face dire budget constraints. It is very difficult to justify diverting even more resources 

to manage paperwork for a permit that is duplicative of other reguVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
31

latory programs and has no appreciative environmental benefits. 

For example, in the State of Colorado, the Department of Public 

Health and Environment (CDPHE), the regulatory authority for 

NPDES estimates a 25 to 70 percent increase in permit applications because of these new requirements and as many as seven 

FTE’s to cover the additional workload. 

While the brunt of the cost to the states will be borne by our 

counterparts in state water and environmental agencies, state departments of agriculture will also be forced to divert resources 

away from legitimate regulatory activities such as worker protection and enforcement programs many of which have important and 

quantifiable environmental benefits. State departments of agriculture will have to devote significant resources to coordinating 

with other state agencies on permit design and implementation activities. Many state departments of agriculture and other state 

agencies are responsible for extensive mosquito control activities 

and programs to combat invasive and economically devastating 

pests such as Gypsy Moth and Mountain Pine Beetles. 

A very real concern is whether states will continue to have the 

flexibility and resources to manage these pests appropriately. The 

likelihood of receiving increased Federal funding to deal with these 

new requirements is virtually zero. We will therefore be forced to 

spend our scarce resources on filling out paperwork for a duplicative permit instead of treating invasive species, controlling for mosquitoes, or keeping our waterway free of vegetation that restricts 

the flow of water. 

Diverting resources from these important activities is irresponsible and will have a very real public health and economic impact 

across this country. A public health consequence of this cannot be 

emphasized enough. West Nile Virus and encephalitis are all very 

real public health concerns and mitigation of which depends on the 

use of pesticide to control mosquito populations. Since 2003, Colorado has experienced 91 deaths associated with West Nile Virus. 

In 2003 alone, Colorado led the nation with 63 deaths from West 

Nile Virus. However, in 2004, widespread mosquito programs were 

initiated statewide that have kept annual deaths under seven fatalities per year since. These vital public health activities will be 

threatened if Congress does not act. 

The State of Colorado estimates that either a half or a full time 

employee will be required for each business and other permittees 

to manage all of these elements to ensure that the entity remains 

in compliance with the NPDES permit requirements. At a minimum, the combined estimated annual costs for Colorado and municipalities and the commercial industry for NPDES permits implementation is over $21 million. In reality, it is likely that this cost 

will be significantly higher. It is important to emphasize that EPA 

has estimated that nationwide it will cost permittees about $50 

million annually to comply with just the information collection requirements of this permit. 

Again, if the State of Colorado’s estimate is reflective of the cost 

in other states, permittees will most assuredly face costs several orders of magnitude greater than the EPA estimate. Additionally 

many states have been required by state statute to include waters 

of the state as additional waterways covered by this permit. This 

32

in many cases dramatically expands the number of applications 

and pesticide users covered and will significantly increase the costs 

associated with the 6th Circuit’s ruling. 

Finally, we must be mindful of the unintended consequence of 

these permitting requirements. Depending on the increase in the 

cost of an application service or the difficulty to comply with all 

these elements of the permit, there may be those who choose not 

to make pesticide applications at all. Failure to make necessary applications may result in a domino effect that could result in additional negative impacts. For example, this could lead to a situation 

where a noxious weed spreads into new areas or in Colorado, the 

failure to control noxious weeds in waterways may result in decreasing water flow to ag production and downstream states that 

depend on water from Colorado. Thank you. 

[The prepared statement of Mr. Salazar follows:]

PREPARED STATEMENT OF HON. JOHN SALAZAR, COMMISSIONER, COLORADO

DEPARTMENT OF AGRICULTURE, LAKEWOOD, CO; ON BEHALF OF

NATIONAL ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE

Chairwoman Schmidt, Chairman Gibbs, Ranking Member Baca and Ranking 

Member Bishop, thank you for holding this important joint hearing today to examine the ramifications of the 6th Circuit’s decision in National Cotton Council v. EPA.

It is good to be back with all of you. During my time in Congress I served on both 

the Agriculture and Transportation and Infrastructure Committees and was recently appointed by Governor John Hickenlooper to lead the Colorado Department 

of Agriculture. I look forward to discussing this very important issue with you today. 

A little over a year ago I joined many of you and a bipartisan group of other lawmakers asking the U.S. Supreme Court to intervene in this decision. Because the 

Court declined to act, we are now in a situation where the only remedy is for Congress to intervene. 

I am testifying today on behalf of the National Association of State Departments 

of Agriculture as well as the Colorado Department of Agriculture. NASDA represents the commissioners, secretaries, and directors of the state departments of agriculture in all fifty states and four territories. State departments of agriculture are 

responsible for a wide range of programs including food safety, combating the introduction and spread of plant and animal diseases, and fostering the economic vitality 

of our rural communities. Environmental protection and conservation are also 

among our chief responsibilities. 

Forty-three of NASDA’s members are co-regulators with EPA under the state primacy provisions of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). 

Our agencies are the lead state agencies responsible for administering, implementing and enforcing the laws regulating pesticide labeling, distribution, and use 

in our states. 

In addition to our pesticide regulatory responsibilities, state departments of agriculture are significant users of pesticides as administrators of state mosquito control 

programs, other wide-area pest suppression activities, and invasive-species control 

programs. Most of these activities will require NPDES permitting in the wake of 

the 6th Circuit’s ruling. 

This ruling, if not remedied by Congress, will require pesticide applicators to be 

permitted under the Clean Water Act’s National Pollutant Discharge Elimination 

System (NPDES) for pesticide applications made in, over, or near waters of the U.S. 

It is important to understand that FIFRA established a comprehensive and effective regulatory web to provide pesticide-related environmental and public health 

protection through requirements for pesticide registration, labeling, and use that are 

the end result of an extensive pre-market approval process. This registration process 

requires products to meet strict safety guidelines and includes rigorous examination 

of environmental fate data and health exposure assessments. 

Shortly after passing the Clean Water Act, Congress also passed major amendments to FIFRA in 1972. It is clear from FIFRA’s legislative record that Congress 

intended FIFRA to be the controlling statute to regulate the registration, sales and 

use of pesticide products. Moreover, it is clear from the House Committee Report 

on these FIFRA amendments that Congress contemplated the impacts of pesticides 

33

on interstate and navigable waters and intended these issues to be addressed by 

FIFRA, not the Clean Water Act.

However, the 6th Circuit’s ruling has forced us into a situation that contradicts the original intent of Congress. It will require EPA and the states 

to expend significant resources to issue permits under the Clean Water Act 

for activities that are already regulated by FIFRA and state pesticide laws.

It is no secret that states across the country face dire budget situations and many 

have had to close state parks, cancel transportation projects and cut funding to 

higher education. It is very difficult to justify diverting even more resources to manage paperwork for a permit that is duplicative of other regulatory programs and has 

no appreciable environmental benefits. 

For example, in the State of Colorado, the Department of Public Health and Environment (CDPHE), the regulatory authority for NPDES, estimates a 25 percent increase in permit applications because of these new requirements and as many as 

seven FTE’s to cover the additional workload. EPA has estimated that the reporting 

and record keeping associated with these requirements alone will cost state permitting authorities approximately $1.7 million a year. However, if Colorado’s estimates 

are reflective of the situation in other states, the true costs to states will quickly 

outstrip EPA’s estimates. 

While the brunt of the costs to states will be borne by our counterparts in state 

water and environmental agencies, state departments of agriculture will also be 

forced to divert resources away from legitimate regulatory activities, such as worker 

protection and enforcement programs, many of which have important and quantifiable environmental benefits. State departments of agriculture will have to devote 

significant resources to coordinating with other state agencies on permit design and 

implementation activities. Also, our departments are expending significant resources 

conducting outreach to pesticide applicators licensed by our departments and will, 

in a number of states, play a role in enforcing certain provisions of state permits.

States and state departments of agriculture will also face enormous costs 

as permittees in the wake of the 6th Circuit’s ruling.

Many state departments of agriculture and other state agencies are responsible 

for extensive mosquito control activities and programs to combat invasive and economically devastating pests such as the gypsy moth and mountain pine beetles. A 

very real concern is whether states will continue to have the flexibility and resources to manage these pests appropriately. 

The likelihood of receiving increased funding to deal with these new requirements 

is virtually zero. We will, therefore, be forced to spend our scarce resources on filling 

out paperwork for a duplicative permit instead of treating invasive species, controlling for mosquitos, or keeping our waterways free of vegetation that restricts the 

flow of water. Diverting resources from these important activities is irresponsible 

and will have very real public health and economic impacts across the country. 

The public health consequences of this cannot be emphasized enough. West Nile 

Virus, Dengue Fever, and Encephalitis are all very real public health concerns, the 

mitigation of which depends on the use of pesticides to control mosquito populations. 

Since 2003 Colorado has experienced ninety-one deaths associated with West Nile 

Virus (WNV). In 2003, Colorado led the nation with sixty-three deaths from WNV. 

However, in 2004 wide spread mosquito programs were initiated statewide that 

have kept annual deaths under seven fatalities per year since. These vital public 

health activities will be threatened if Congress does not act. 

Moreover, the vital programs states administer to control invasive species could 

suffer significantly because of these permit requirements. For example, treatments 

that are needed in order to prevent pest infestations in trees and our forests could 

be unable to be made because of resource constraints or permitting delays. The resulting defoliation could actually increase the temperature of streams that depend 

upon these trees to maintain appropriate water temperature and conditions. Ironically, these Clean Water Act permits could lead to the impairment of our nation’s 

waterways.

Counties, municipalities, public utilities, water districts, mosquito control districts, commercial applicators, farmers, ranchers, and forest managers will also be significantly impacted by costs associated with managing 

and documenting the permit requirements.

The State of Colorado estimates that a either half or full time employee will be 

required for businesses and other permittees to manage all of these elements to ensure the entity remains in compliance with the NPDES permit requirements. Colorado projects that if this employee were paid at our state’s minimum wage, it would 

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age the elements of the permit. It is important to point out that this is figured at 

the minimum wage and may not reflect the actual average wage for each employee. 

In addition, it does not account for materials and supplies needed, additional insurance or workman’s compensation expenses the entity must absorb. 

At a minimum, the combined estimated annual costs for Colorado municipalities and the commercial industry for NPDES implementation is over $21 million. In reality, it is likely this cost will be significantly higher. Because this is new and there 

are so many uncertainties about jurisdiction, we don’t know how much this will cost 

fully. It is important to emphasize that EPA has estimated that nationwide it will 

cost permittees $50 million annually to comply with just the information collection 

requirements of this permit. Again, if the State of Colorado’s estimate is reflective 

of the costs in other states, permittees will most assuredly face costs several orders 

of magnitude greater than this EPA estimate. Additionally, many states have been 

required by state statute to include ‘‘Waters of the State’’ as additional waterways 

covered by the permit. This, in many cases, dramatically expands the number of applications and pesticide users covered and will significantly increase the costs associated with the 6th Circuit’s ruling. 

Because of this ruling, a huge number of applicators will have to comply with 

NPDES permitting requirements to which they have never before been subjected. 

It is not unreasonable to expect that a number of these permittees could find themselves in situations where even minor paperwork violations that have no actual impact on environmental protection will lead to significant penalties under the Clean 

Water Act. Currently those penalties are $37,500 per day per violation. While some 

of the original targets of NPDES permit requirements may be able to bear the burden of these penalties and other costs associated with NPDES permits, the small 

businesses and public health entities that represent the Majority of those required 

to obtain permits under this decision will face significant financial difficulties. 

Additionally, and perhaps most significantly for the many small businesses and 

other users of pesticides, is the threat of lawsuits under the Clean Water Act’s citizen action provisions. There is still significant confusion and uncertainty about 

what pesticide applications fall under the 6th Circuit’s mandate and could, therefore 

be left vulnerable to lawsuits. If Congress does not act, I fear agricultural producers 

and other pesticide users will be forced to defend themselves against litigation. I 

might also add that this uncertainty would likely increase the costs to state regulators because agricultural producers may decide to err on the side of caution and 

apply for coverage under this permit, even though they would neither need permit 

coverage, nor be eligible for coverage. States would be left in a situation where we 

would have to expend resources dealing with these kinds of issues. 

Finally, we must be mindful of the unintended consequences of these permitting 

requirements. Depending on the increase in the cost of an application service or the 

difficulty to comply with all elements of the permit, there may be those who choose 

to not make pesticide applications at all. Failure to make necessary applications 

may result in a domino effect that could result in additional negative impacts. For 

example, this could lead to a situation where noxious weeds spread into new areas. 

Or, in Colorado the failure to control noxious weeds in water ways may result in 

decreased water flow to agricultural production and downstream states that depend 

on water from Colorado. 

Congress must act to clarify that pesticides applied in accordance with FIFRA are 

not subject to NPDES permitting requirements under the CWA.

Mrs. SCHMIDT. Thank you and now I will call on my next witness, Mr.—Dr. Fisk. 

STATEMENT OF DR. ANDREW FISK, DIRECTOR, MAINE

BUREAU OF LAND AND WATER QUALITY; PRESIDENT,

ASSOCIATION OF STATE AND INTERSTATE WATER

POLLUTION CONTROL ADMINISTRATORS, AUGUSTA, ME 

Dr. FISK. Good afternoon. Chairwoman Schmidt, Chairman 

Gibbs, Members of the Committee, thank you for allowing me to 

speak today. I am here representing the 46 states and interstates 

that administer the Clean Water Act. We are those entities that 

implement your goal of restoring and maintaining the chemical, 

physical, and biological integrity of the nation’s waters and we take 

that task to heart every day in our jobs. As you well know, the 

Clean Water Act works along setting of goals. After setting goals 

35

you create standards and criteria to enforce those goals, you monitor, you assess, you write permits, and you enforce those permits 

in what we hope is a virtuous circle so that we meet your big ambitious goal. 

I would apologize a bit if I appear a bit slouched. My mother, 

probably like yours always told me that I should sit up straight. 

States are feeling a little slouched. As you have heard back in 

1991, we had about 100,000 sources that were regulated by the 

NPDES permit program. It is now in excess of 500,000. This program will bring it to over 900,000 potential sources nationally. 

This is clearly an era of diminished resources. The states maintain high expectations and we do not have diminished expectations 

despite diminished resources. So what we are saying is we need to 

know where do we put our resources to the best effect. This is 

clearly an issue for us and we look carefully at our position on how 

you regulate pesticides. You can imagine what I am going to say 

next. Yes, there is not enough money to do our jobs. I won’t bore 

you or go through all the gory details, but we can demonstrate that 

there is not enough money to do the work that we currently have. 

That is a consideration for us, so again, we look very carefully at 

where we are going to put our resources for the most effect. 

When we look at this issue, and we are again, the agencies that 

are charged with 46 of us writing a NPDES permit for pesticide applications in our state, we look around with EPA and say what 

would this permit contain? What we find is we look at FIFRA and 

the authorities and practices that are contained within FIFRA that 

we then would then put inside our permit. 

I hope I don’t oversimplify this for my colleagues who are far 

more expert in pesticide application, but essentially what do you do 

to control pesticide application. You minimize the amount of pesticide that you use, you would apply it at the right time and in the 

right place, and then you use buffers and setbacks. I think you can 

safely say all the practices we have talked about probably fit in 

those categories. We are looking at those to put inside our permit. 

So we are asking ourselves if we are bringing FIFRA inside the 

Clean Water Act is that really the best use of our resources when 

we have so many other things that we need to do. We are comfortable at this point in our understanding that there are adequate 

authorities in FIFRA and our position is if the question is are we 

doing enough to maintain and improve our nation’s waters, look 

and cast a weather eye on FIFRA. Don’t ask the Clean Water Act 

to do this. 

That said, we recognize that there are pesticides in waters. We 

are very familiar with the USGS work. You can see and detect pesticides in over 90 percent of streams that were sampled by USGS. 

Ten percent of those streams have human health impacts. Somewhere around 50 percent of those streams will have impacts in 

aquatic life. That said, there is some interesting results from that 

USGS study. It says when you use less of those pesticides, less 

shows up in the water. It says also that in instances where there 

have been decreased concentrations of certain pesticides, Atrazine 

and Metolachlor in certain streams you have actually seen increased usage in those watersheds. USGS surmises that means 

that practices are restraining the input of pesticides to our 

36

1 Nat’l Cotton Council v. U.S. Envtl. Protect. Agency, 553 F.3d 927 (6th Cir. 2009) (hereinafter ‘‘National Cotton Council’’). 2 Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001) (Application of an 

herbicide to irrigation canals to control aquatic weeds and vegetation requires an NPDES permit. Application of the pesticides leaves residue after pesticide application performed its intended effect. In Talent, the applicator violated the FIFRA label requirement to contain the herbicide-laden water in an irrigation canal for a specified number of days, which eventually lead 

to a large fish kill in a downstream creek.); League of Wilderness Defenders v. Forsgren, 309 

F.3d 1181 (9th Cir. 2002) (Aerial application of pesticide to control gypsy moths constituted a 

point source discharge subject to NPDES permitting. In Fosgren, the court did not decide whether the pesticide was a pollutant or not because the Forest Service had conceded that point at 

the District Court level. Id.); Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005) (Pesticides 

intentionally applied directly to a lake to eliminate non-native fish species, where there are no 

residues or unintended effects, are not ‘‘pollutants’’ under the CWA because they are not chemical wastes). It is important to note that ASIWPCA went on record with EPA at many points 

after these decisions urging EPA not to apply the decisions nationally. 

streams. We think you should be looking at: How do you develop 

practices and requirements under FIFRA to keep those trends 

heading in the right direction? 

Our last point here is that there are significant legal liability 

questions and people that approach me and say will this permit 

cover this activity or that, we have enough questions to say that 

it is an open question whether there is legal liability for a range 

of pesticide applicators. And then I would just close and point that 

we do support the testimony from the Committee many years ago 

that talked about what FIFRA should be doing. 

[The prepared statement of Dr. Fisk follows:]

PREPARED STATEMENT OF DR. ANDREW FISK, DIRECTOR, MAINE BUREAU OF LAND

AND WATER QUALITY; PRESIDENT, ASSOCIATION OF STATE AND INTERSTATE WATER

POLLUTION CONTROL ADMINISTRATORS, AUGUSTA, ME 

Good, afternoon, Chairman Gibbs, Chairwoman Schmidt, and Members of the 

Subcommittees:

My name is Andrew Fisk and I am the Director of the State of Maine’s Bureau 

of Land and Water Quality and the current President of the Association of State 

and Interstate Water Pollution Control Administrators (ASIWPCA). I have been 

working in state environmental quality programs for 13 years. 

ASIWPCA is the national, nonpartisan, professional organization of state and 

interstate agencies responsible for the implementation of water protection programs 

throughout the nation. ASIWPCA celebrates its 50th Anniversary this year and was 

created by states and interstates to lead the way in realizing a vision for clean 

water in America. As the national voice of state and interstate water programs 

(hereafter referred to collectively as states), ASIWPCA’s members are responsible as 

co-regulators for on-the-ground implementation of the Clean Water Act (CWA). We 

are the institutions who, under the authorities delegated to us by the United States 

(U.S.) Environmental Protection Agency (EPA) via the CWA, issue permits to control and limit discharges to waters of the United States. 

We are on the front lines of CWA monitoring, inspection, compliance, and enforcement across the country. Our members are responsible for implementing Congress’s 

goal of restoring and maintaining the chemical, biological, and physical integrity of 

our nation’s waters. 

We take that task to heart every day. 

I am pleased to present testimony on behalf of ASIWPCA today regarding the impact of the National Cotton Council 1 case on state water quality programs. This 

case held that pesticide applications to U.S. waters must be permitted under the 

CWA, despite their regulation under the Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA). 

Overview 

For nearly three decades, the application of pesticides to water was regulated 

under FIFRA, not the CWA. A series of lawsuits in the 1990s, however, yielded a 

trio of 9th Circuit Court of Appeals decisions 2 which when taken together held that 

these pesticide applications also needed CWA National Pollutant Discharge Elimination System (NPDES) permits. To clear up the confusion, EPA promulgated a 

37

3 EPA states ‘‘that the application of a pesticide in compliance with relevant requirements of 

FIFRA does not require an NPDES permit in two specific circumstances. The first circumstance 

is when the application of the pesticide is made directly to waters of the United States to control 

pests that are present in the water. The second circumstance is when the application of the pesticide is made to control pests that are over, including near, waters of the United States.’’ See

Application of Pesticides to Waters of the United States in Compliance with FIFRA, 71 Fed. Reg.

68483 (Nov. 27, 2006)). 

final regulation in 2006 to clearly exempt certain applications of aquatic pesticides 3

from the CWA’s NPDES program. EPA’s final rule was challenged in the 6th Circuit, and in 2009, the National Cotton Council court held that EPA’s longstanding 

approach to this matter was not entitled to deference and its interpretation of the 

CWA was unreasonable, and thus vacated EPA’s final rule. The National Cotton 

Council decision exposed pesticide applicators and states to CWA liability. With the 

support of many affected entities, including ASIWPCA, EPA sought a 2 year stay 

of the court’s mandate. Since 2009, EPA has worked diligently and closely with 

states on a good faith effort to develop a workable general permit model under the 

CWA for applications of pesticides to water. Over the same time, states across the 

nation began devoting resources to developing their own state general permits for 

such applications. 

The general permits being developed must work for over 360,000 (estimated) new 

permittees brought within the purview of the NPDES program by the National Cotton Council court. Adding sources to the NPDES program carries with it regulatory 

and administrative burdens for states beyond merely developing and then issuing 

permits. It goes without saying that a meaningful environmental regulatory program is more than a paper exercise. It is not just a permit. EPA and states must 

provide technical and compliance assistance, monitoring, and as needed, enforcement. These 360,000 new permittees do not bring with them additional Federal or 

state funding. In fact, Federal and state funding for water programs has been insufficient for a long time. See Figure 1, infra.

Despite EPA’s diligence, the complexities of implementing the National Cotton 

Council court’s mandate have made it difficult for EPA to meet interim deadlines 

during the 2 year stay. EPA’s final general permit is not yet complete. In order to 

provide a consistent framework, many states want to use this permit as a model 

for their own permit development. The stay of the court’s mandate expires on April 

9, 2011. Last week, ASIWPCA and other state regulatory organizations states requested that EPA pursue a 6 month extension of the stay. 

If sought by the Agency and granted by the court, a further stay may allow more 

states to finalize permits. However, no matter the duration, a stay does not address 

a fundamental question—is this the appropriate way to manage pesticide applications in or near water going forward? Is this necessary when another Federal statute already regulates these applications and provides states sufficient authority to 

regulate these discharges in consideration of local and site specific water quality 

issues? 

Growth of the NPDES Program 

ASIWPCA and its state members are proud of the significant reductions in water 

pollution yielded by the NPDES program since its establishment. The NPDES program continues to work, although we are very concerned that it will be compromised 

by the addition of more and more sources to permit, at the same time as Federal 

funds to support the program decline. A strong Federal-state partnership, good data, 

adequate and sustainable funding, clear performance standards, and prioritization 

are at the heart of this program. The NPDES program has accomplished much due 

to its focus on predictable and manageable flows, identifiable end-of-pipe controls, 

extensive monitoring, and substantial Federal and state funding for treatment facilities and technologies. Pesticide permitting will touch hundreds of thousands of transient, mini-point sources very unlike those the NPDES program was designed to 

control. 

Since its inception, the NPDES program universe has continued to grow, not just 

because there has been an increase in the number of traditional industrial/municipal sources, but more profoundly because more and more new sources are added 

to the program as a result of litigation or new regulations. As you can see from Figure 1, the inclusion of municipal stormwater, construction stormwater, industrial 

stormwater, concentrated animal feeding operations, and most recently vessel discharges has vastly increased the NPDES program’s scope. 

EPA’s projection of more than 365,000 pesticide permittees would increase the size 

of state NPDES programs by 60 percent. This programmatic increase will not be 

equally distributed. Those states that require more pesticides applications for 

38

4 Alaska is the 46th state and currently is receiving authorization in phases. EPA’s general 

permit will apply in Alaska. 5 ASIWPCA is concerned that the economic analyses conducted by the Agency for this program 

dramatically underestimate the costs to states of the long term and continued oversight and 

management of this program—essentially, the full costs of its implementation. 

human health safety, habitat protection, and pest control will see the greatest increases and shoulder the greatest burdens. 

Figure 1. NPDES Universe with Pesticides Permittee Projection

The NPDES Program Is Not a Mere Paper Exercise 

The CWA was designed for states to take on the vast majority of its work under 

the oversight of EPA and Congress. We have done that. Today, 46 states have received authority to administer the NPDES program.4

The issuance of a NPDES permit is an expression of technology-based requirements, water quality standards, ambient water quality conditions, and where appropriate, a waste-load allocation derived from a total maximum daily load (TMDL). 

Incorporating water quality standards into permits can be a resource intensive process. Today’s water quality standards today are scientifically more complex than 

those of the early days of the NPDES program. They often require specialized implementation in different ecological regions. The maturation of the TMDL program 

adds another layer of complexity, in that a permittee must be controlled within the 

context of its watershed and the other sources of pollution in that watershed. 

Pesticide applicators are unlike traditional NPDES permittees such as municipal 

treatment plants. It is nearly impossible to treat runoff from these dispersed applications to meet specific effluent limitations—which is what the CWA requires. 

So what do states do? We impose buffers or setbacks and require applicators to 

ensure they are using the right amount of chemicals, in the right places, at the right 

times. That is a sensible and responsible approach. We do not need the CWA to do 

this. FIFRA has that authority and ability. States also have their own authorities 

which let them take additional action they may deem necessary. 

The implications on state resources associated with adding pesticide applications 

to the NPDES program are far reaching. It bears repeating that states must not 

only develop permits, but then ensure compliance with general and individual permits, which requires inspections, monitoring, reporting, compliance assistance, outreach, training, and more. As a program matures, EPA more clearly defines expectations for drafting quality permits, inspection frequency, data collection and annual 

reporting, monitoring, and compliance assurance and enforcement activities. As administrative details are fleshed out for states and other regulators, the true cost of 

implementing this program will far exceed the initial estimates provided by EPA.5

The NPDES program prevents the discharge of billions of pounds of pollutants to 

our nation’s rivers, lakes, wetlands, and coastal waters each year. Measuring and 

reporting environmental progress and results are critical aspects of managing any 

environmental program. Measuring and reporting serves as a basis for commuVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN

11203001
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6State Water Quality Management Resource Analysis Report (‘‘[A]t the highest level of aggregation, this resource gap indicates that state agencies are receiving less than 1⁄2 of the resources 

they need to fully implement the requirements of the Federal Clean Water Act.’’). 7While some states charge fees for permits, these fees do not completely offset program costs 

nor do these fees always come directly back to the program. And, in the current economic climate, many state legislatures are unlikely to update permit fee funding legislation to support 

this new program. 

nicating progress and maximizing public accountability. Given the limited resources 

available to implement the NPDES program, we must increasingly focus on meaningful planning to set priorities and utilize resources efficiently. With an increasing 

workload, resources are often drawn from base program activities that, in the long 

term, are critical to the NPDES program. 

In Maine, adding the 5,000 to 6,000 (estimated) new pesticide permittees to our 

NPDES program will draw resources away from the 1,100 other regulated entities 

already in the program: 700 of these 1,100 are new to the Maine program due to 

regulatory developments over the past 5 years. To credibly run our program to work 

with these businesses—many who have never seen a NPDES permit—I have 

brought on three additional staff. Imagine, then, the cumulative impact of this new 

program on all states. 

In preparation for this hearing, ASIWPCA asked states if they anticipated meaningful water quality improvements through permitting this new group of sources. 

Of those states able to respond in a tight timeframe, an overwhelming majority said 

no. Given the stretched state resources, it seems less than fruitful to have states 

regulating sources already covered under another environmental statute. 

In good faith, states have been making tremendous progress in the development 

and issuance of state general pesticide permits. However, we must emphasize that 

for over a decade, ASIWPCA has maintained that pesticide applications to water are 

better covered under FIFRA, as they were before National Cotton Council and earlier court decisions. 

Declining Resources 

The nation depends on the CWA to protect water supplies, recreational areas, 

aquatic life, and other uses of our water resources. One of the principal funding 

sources for states’ work is CWA Section 106 funding. In 2003, EPA, the states, the 

Government Accountability Office, and the National Academy of Public Administration were all in substantial agreement that the gap between actual and needed 

funding to support all CWA programs was between $800 million and $1 billion annually.6 Since 2003, Federal mandates have only increased the workload for state 

programs. 

There are other less direct, but substantial pressures on states working to address 

today’s water quality issues. They include high attrition rates of state NPDES permitting staff, state staff furloughs and retirements due to budget limitations, increasingly sophisticated and complex water quality issues, and numerous legal challenges requiring continued defense of state programs and actions. 

Figure 2 below provides context regarding § 106 appropriations that highlights impacts that inflation has had on annual funding. These figures are devastating—one 

can only imagine the stress that a 60 percent increase in the NPDES universe will 

have on states.7

40

8 H.R. REP. NO. 511, 92nd Cong., 1st Sess. 13 (1971) (emphasis added).

Figure 2. Impacts of Inflation on Section 106 Funding to States

Liability Exposure 

It is incumbent upon us, as public officials, to make every effort to provide the 

public, industry, and nongovernmental organizations the stability that comes with 

clear, concise laws and regulations. And though EPA has proposed specific size 

thresholds and application types in or near water to be regulated by the permit, 

nothing in the CWA or the permit protects many other FIFRA compliant pesticide 

applications from CWA citizen suits. This creates an uncertain liability for users applying pesticides to golf courses and public utility rights of way, as well as private 

homes and businesses, which are not covered by the general permit. Given this uncertainty, several states are creating a ‘‘miscellaneous’’ or ‘‘other’’ category, should 

these entities and others wish to seek permit coverage and protection. 

Significant financial penalties are associated with CWA violations, including for 

paperwork violations, which could be very high as compared to the scope and scale 

of some pesticide operations. The CWA’s citizen suit provisions also will expose pesticide applicators to costly legal defense obligations. Public health agencies will be 

similarly vulnerable to these CWA penalties, fines, citizen suits, and defense costs. 

Conclusion 

Shortly after passing the CWA, Congress also passed major amendments to 

FIFRA which included Committee reports. Committee reports shed light on legislative intent. A 1971 House Committee Report 8 on FIFRA is particularly helpful in 

this regard: 

‘‘The Congress hereby finds that pesticides are valuable to our nation’s agricultural production and to the protection of man and the environment from insects, 

rodents, weeds, and other forms of life which may be pests; but it is essential 

to the public health and welfare that they be regulated closely to prevent 

adverse effects on human life and the environment, including pollution 

of interstate and navigable waters; . . . and that regulation by the Administrator and cooperation by the states and other jurisdictions as contemplated by the Act are appropriate to prevent and eliminate the burdens 

upon interstate and foreign commerce, to effectively regulate such commerce, 

and to protect the public health and welfare and the environment.’’

This language, in context with nearly three decades of FIFRA performing these 

functions, may be helpful as the Subcommittees study the impact of the National 

Cotton Council court decision. 

Thank you for your time and attention to my remarks today. It is a privilege to 

present to you and I am happy to answer any questions that you may have.

Mr. GIBBS. Thank you, Dr. Fisk. Mr. Ninivaggi, please? 


11203002
41

STATEMENT OF DOMINICK V. NINIVAGGI, SUPERINTENDENT, 

DIVISION OF VECTOR CONTROL, SUFFOLK COUNTY

DEPARTMENT OF PUBLIC WORKS, YAPHANK, NY; ON

BEHALF OF THE AMERICAN MOSQUITO CONTROL

ASSOCIATION; ACCOMPANIED BY DAVID BROWN, MANAGER, 

SACRAMENTO-YOLO MOSQUITO AND VECTOR CONTROL

DISTRICT, ELK GROVE, CA 

Mr. NINIVAGGI. Thank you very much for the opportunity to 

present the views of the American Mosquito Control Association to 

the Subcommittees on this vital public health issue today. I am 

Dominic Ninivaggi, the Superintendent of the Division of Vector 

Control in the Suffolk County Department of Public Works in New 

York. I am accompanied by David Brown, Manager of the Sacramento-Yolo Mosquito and Vector Control District. Together we 

have over 50 years of experience in vector control. 

Mosquito control is critically important to public health in the 

United States. Worldwide, mosquitoes cause more human suffering 

than any other organism. Over one million people die a year from 

mosquito-borne diseases. Such diseases include malaria and West 

Nile Virus, which was the most severe outbreak of mosquito-borne 

disease in the United States in decades. In the last 8 years, over 

1,000 Americans have died and over 1,000—over 10,000 have been 

hospitalized, some with severe permanent disabilities from this disease. Since the enactment of FIFRA and the Clean Water Act, EPA 

and the states have treated these laws as complementary rather 

than overlapping mechanisms for the regulating the risks of pesticides and water pollutants, respectively. 

However, beginning in 2001, many CWA citizen lawsuits were 

filed against publicly-funded mosquito control programs that apply 

pesticides to or near water. This led to considerable expense and 

curtailment of necessary programs as public health programs were 

facing litigation risks. In response to these suits, EPA published 

guidance clarifying the general inapplicability of the CWA to enduse pesticide applications. Moreover, in January of 2003, AMCA 

filed a petition with EPA requesting that the agency adopt a formal 

regulation clarifying the CWA obligations of those that apply pesticides to or near water in material compliance with FIFRA and its 

regulations. 

EPA subsequently issued a final rule concluding that pesticide 

applications for mosquito control when conducted substantially in 

accordance with the FIFRA labels did not constitute a ‘‘discharge 

of pollutants to waters of the United States’’. EPA made clear that 

that in the regulations it requires registrants among other things 

to provide data to establish the potential impacts from their use including effects on water quality and aquatic organisms. Unfortunately, the 6th Circuit disagreed with EPA and invalidated the 

rule. The court determined that it was Congress’s intent in establishing the CWA to subject pesticides to its requirements. As a result, NPDES and NPDES permits would be required for these pesticide applications that previously had been covered by the rule. In 

response to the 6th Circuit decision, AMCA and a host of other interested persons asked EPA to file an appeal with the U.S. Supreme Court. The agency declined those requests and instead 

adopted a course of trying to develop a general permit to cover as 

42

many pesticide applications as possible while recognizing that 

there would be some instances where an individual permit would 

be required. By necessity we have tried to participate in the general permit development process all the while maintain that the 

6th Circuit was wrong. 

By including pesticide applications under the Clean Water Act 

the decision greatly expands the number of entities that will now 

need a NPDES permit. Currently the program encompasses approximately 520,000 permitted facilities. EPA estimates at a minimum the 6th Circuit decision will require an additional 365,000 

so-called applicators to seek permits for approximately 5.6 million 

pesticide applications a year. As we approach April 9, 2011, the 

date where the 6th Circuit mandate goes into effect, EPA has not 

yet released a general permit. As a result, we and other mosquito 

control programs face the difficult choice: either suspend pesticide 

applications thereby placing in jeopardy the public health and welfare, or place ourselves in substantial legal jeopardy from citizen 

lawsuits while continuing to use pesticides in carrying out our mission to protect the public. 

Let me just take a moment to explain the nature of our pesticide 

application activities. First, it is important to understand that all 

applications are done in accordance with the label of the product. 

Second, we are using ultra-low volumes of products that are vastly 

smaller than an individual homeowner would apply. To give you a 

reference point, given out scientific capabilities, we are able to 

apply approximately 1⁄3 of a shot glass of product per acre. A homeowner applies about 64 times that dose to get the same effect. 

As you are aware, under the CWA civil penalties from such suits 

may be up to $37,500 a day. I am personally familiar with litigation under the CWA because Suffolk County was sued under the 

Act. While the county prevailed in district court, the case was ultimately settled during the appeals process. However, its defense 

was a significant burden on the county. We also believe that there 

is a high likelihood of litigation against EPA by some activist 

groups challenging the provisions of any general permit issued 

pushing for an expansion of instances where an individual permit 

would be necessary. 

Consequently, it appears that absent Congressional clarification 

we in the agency will be stuck in this—excuse me—this judicial 

morass for some time with precious resources being devoted to justifying a CWA program which we have consistently maintained 

was never intended by Congress to cover pesticide applications that 

were in substantial compliance with labeled use directions. In interest of ensuring that mosquito control districts across the country 

are able to maintain and continue to perform their vital public 

health functions, we respectfully request Congressional action to 

resolve this issue. Thank you again for allowing me to present our 

views today. Dave and I will be happy answer any questions you 

may have. Thank you. 

[The prepared statement of Mr. Ninivaggi follows:]

43

1Mosquito-Borne Diseases, American Mosquito Control Association, available at http://

www.mosquito.org/mosquito-information/mosquito-borne.aspx. 2http://www.cdc.gov/malaria/.

PREPARED STATEMENT OF DOMINICK V. NINIVAGGI, SUPERINTENDENT, DIVISION OF

VECTOR CONTROL, SUFFOLK COUNTY DEPARTMENT OF PUBLIC WORKS, YAPHANK, 

NY; ON BEHALF OF AMERICAN MOSQUITO CONTROL ASSOCIATION

I am Dominick V. Ninivaggi, Superintendent Division of Vector Control Suffolk 

County Department of Public Works, New York. I am accompanied by David Brown, 

Manager of the Sacramento-Yolo Mosquito and Vector Control District, Elk Grove 

California. I have been involved in mosquito vector control for more than 24 years. 

David has similarly been involved in California in excess of 27 years. 

Prior to joining Suffolk Vector Control in 1994, I held positions as an Oceanographer for the Army Corps of Engineers and as a Marine Resources Specialist for 

the New York State Department of Environmental Conservation. I hold a Bachelors 

of Science degree in Biology from Southampton College and a Masters Degree in 

Marine Environmental Sciences from Stony Brook University. My background in environmental science has proven very useful in directing Suffolk County’s program, 

because much of our activities center on coastal wetlands. The County has a strong 

commitment to protecting those wetlands and other natural resources, while still 

protecting the public from mosquitoes and the diseases they transmit. Part of that 

commitment is the County’s $4.5 million Vector Control and Wetlands Management 

Long Term Plan and Generic Environmental Impact Statement. The Plan is a comprehensive study of the public health and environmental effects of the County’s mosquito control program and associated wetland management activities. In addition to 

playing a major role in the preparation of this environmental plan, I have also participated in the development of the national and New York State West Nile Virus 

response plans. 

David Brown has been employed with the Sacramento-Yolo Mosquito and Vector 

Control District (‘‘SYMVCD’’) since 1983. He has been Manager of the District since 

1996. He received his Bachelors Degree in Environmental Studies from California 

State University of Sacramento. He is a Past President of both the American Mosquito Control Association (AMCA) and the California Mosquito and Vector Control 

Association. Under his management the SYMVCD has received the prestigious IPM 

Innovator Award for the development of a comprehensive integrated mosquito management program and a premiere public outreach program. He has worked to harmonize the development of waterfowl and wetland habitat that reduces mosquito 

production and the need to use pesticides through Best Management Practices. He 

is recognized for his efforts on publications such as ‘‘Best Management Practices for 

Mosquito Control on California State Properties’’ (California Department of Public 

Health June 2008) and ‘‘Technical Guide to Best Management Practices for Mosquito Control in Wetlands’’ (Central Valley Joint Venture June 2004) 

We are both members of the AMCA. The AMCA is a not-for-profit professional association of approximately 1,700 public health officials, academicians, county trustee/commissioners and mosquito control professionals dedicated to providing leadership, information and education leading to the enhancement of health and quality 

of life through the suppression of mosquito and other vector transmitted diseases 

and the reduction of annoyance levels caused by mosquitoes and other vectors and 

pests of public health importance. This is accomplished, in part, through the use of 

Federal and state registered public health pesticides. 

We thank the Members of both Subcommittees for holding this important hearing 

regarding the regulatory burdens posed by the National Cotton Council v. EPA (6th. 

Cir. 2009) and to review related draft legislation. The decision of the 6th Circuit and 

its implementation by the U.S. Environmental Protection Agency (EPA) have very 

significant adverse consequences on the ability of the mosquito control associations 

throughout our nation to protect the public health and welfare. Consequently the 

subcommittees are to be commended for taking the time to review this important 

matter. 

Background 

Mosquito control is critically important to public health in the United States. 

Worldwide, mosquitoes cause more human suffering than any other organism—over 

one million people die from mosquito-borne diseases every year.1 One such disease 

is malaria.2 Although malaria was eradicated in the United States during the twentieth century through the use of pesticides, the Center for Disease Control (CDC) 

cautions that ‘‘the two species [of mosquito] that were responsible for transmission 

prior to eradication . . . are still widely prevalent; thus there is a constant risk that 

44

3See, Eradication of Malaria in the United States (1947–1951), available at http://

www.cdc.gov/malaria/history/index.htm#eradications. 4http://www.cdc.gov/ncidod/dvbid/arbor/slelqa.htm. 5http://www.cdc.gov/ncidod/dvbid/arbor/eeefact.htm.

6http://www.cdc.gov/ncidod/dvbid/arbor/weefact.htm.

7http://www.cdc.gov/ncidod/dvbid/dengue/index.htm.

8http://www.cdc.gov/ncidod/dvbid/westnile/index.htm.

malaria could be reintroduced in the United States.’’ 3 Currently, only malaria prevention techniques, including the spraying of insecticides that target mosquitoes, 

prevent malaria from reemerging in the United States. 

Other mosquito-borne diseases are still present in the United States, including St. 

Louis Encephalitis,4 Eastern Equine Encephalitis,5 Western Equine Encephalitis,6

Dengue Fever,7 and West Nile Virus.8 There is no known vaccine or effective cure 

for any of these diseases; they are prevented only by controlling mosquito populations. In particular, West Nile Virus, the most severe outbreak of mosquito-borne 

disease in the United States in decades, continues to impact many parts of the country. Over 1,000 Americans have died, and over 10,000 hospitalized, some with severe permanent disabilities, from this mosquito-borne disease in the last eight 

years. 

Since the essentially concurrent enactment of the Federal Insecticide, Fungicide 

and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) in 1972, EPA and 

the states have treated these laws as complementary, rather than overlapping, 

mechanisms for regulating the risks of pesticides and water pollutants, respectively. 

However, beginning in 2001, many CWA citizen lawsuits were filed against entities 

that apply pesticides to or near water, and in particular against publicly-funded 

mosquito control programs, many of which are AMCA members. This led to considerable expense and the curtailment of necessary programs, as public health programs faced litigation risks. 

In response to these suits, EPA published a series of interpretive memos reiterating and clarifying the general inapplicability of the CWA to end-use pesticide 

applications. Moreover, in January 2003 AMCA filed a petition with EPA requesting 

that the Agency adopt a formal regulation clarifying the CWA obligations of those 

that apply pesticides to or near water in material compliance with FIFRA and its 

regulations. EPA responded to the AMCA petition through the publication of a proposed rule. Appropriately, after reviewing the status of pesticides specifically labeled 

for application to or near water, EPA issued a final rule, concluding that their application, when conducted substantially in accord with their FIFRA labels, did not constitute a ‘‘discharge of pollutants to waters of the United States.’’ EPA made clear 

that in the registration of pesticides, it requires registrants among other things, to 

provide data to establish the potential impacts from their use, including effects on 

water quality and aquatic organisms (See for example 40 CFR Part 158 Subpart G). 

Essentially the agency through its Office of Pesticide Programs conducts an impact 

assessment on water quality and non-target organisms including aquatic organisms 

under FIFRA in registering the products. To be eligible for registration, the data 

and information available to the EPA has to establish that when used in accordance 

with label requirements, the pesticide does not present an unreasonable risk to man 

or the environment, including water quality and non target organisms. This effectively achieves the goals of the CWA. 

Unfortunately, the 6th Circuit disagreed with EPA, and it invalidated the interpretive rule. The court determined that it was Congress’s intent in establishing the 

CWA to subject pesticides, whether chemical or biological products to its requirements. As a result, NPDES permits would be required for those pesticide applications that previously had been covered by the rule. 

In response to the 6th Circuit decision, AMCA together with a host of other interested persons asked EPA to file an appeal with the U.S. Supreme Court. Despite 

the widespread impacts of the decision to applications involving the private sector, 

the Federal Government and state and municipal programs, the Agency declined 

those requests. Instead, the Agency adopted a course of trying to develop a general 

permit to cover as many pesticide applications as possible, while recognizing that 

there would be some instances where an individual permit would be required. 

Through AMCA, by necessity we have tried to participate in the general permit development process, all the while maintaining that the 6th Circuit’s decision was 

wrong. 

In the more than thirty-five years of administering the CWA, the EPA never 

issued an NPDES permit for the application of pesticides. By including pesticide applications under the CWA, the Sixth Circuit decision greatly expands the number 

of entities that will now need an NPDES permit. Currently, the NPDES program 

45

encompasses approximately 520,000 permitted facilities. EPA estimates, at a minimum, the 6th Circuit decision will require an additional 365,000 so-called ‘‘applicators’’ to seek permits for approximately 5.6 million pesticide applications per year. 

This represents a nearly two-fold increase in the volume of NPDES permits to be 

issued. The paperwork burden has been estimated by EPA to be approximately 

$50,000,000 per year, and AMCA has advised EPA why it believes that the burden 

will be far in excess of that estimate. 

For mosquito control districts, the 6th Circuit decision has resulted in AMCA 

members trying to work with EPA and the states in determining how a permit process would be developed, and be implemented with the least degree of burden on 

mosquito control operations. Frankly, we recognized that the burden on our programs’ limited resources including both financial and personnel would be significant. Further, we believe that there will be additional operational impacts on the 

districts’ ability to use various pesticides which had been registered for use as public 

health pesticides, not because they would present any significant risk to water quality or non-target organisms, but simply because there would now be another set of 

regulators who would be reviewing these products, and there was little likelihood 

that those regulators would simply adopt the reviews and conclusions of EPA’s Office of Pesticide Programs. Bureaucracies do not function that way. 

As we approach April 9, 2011, the date when the 6th Circuit mandate goes into 

effect, EPA has not yet released the final general permit. As a result, we and other 

mosquito control programs face a difficult choice. Either suspend pesticide applications thereby placing in jeopardy the public’s health and welfare, or continue to use 

pesticides in carrying out our mission to protect the public. However in that latter 

situation, we place ourselves in substantial legal jeopardy from citizen suits. As you 

are aware, under the CWA, the civil penalties from such suits may be up to $37,500 

per day. To the extent that there may be those who may think that the potential 

for such suits is not real, you should be aware that immediately after the issuance 

of the 6th Circuit’s decision, 21 mosquito districts in California received 60 day notices from private attorneys of their intent to sue those districts for failure to have 

an NPDES permit. 

I am personally familiar with the threat of litigation to a mosquito control program under the CWA, because Suffolk County was sued under the Act. While the 

County prevailed in District Court, the case was ultimately settled during the appeals process. However, defending the suit was a significant burden on the County, 

with millions of documents produced during discovery, many depositions and some 

14 hours I spent on the witness stand. I would not want to see any other program 

put through such a process as we conduct our work of protecting the public health 

and the environment, especially since this process resulted in no significant changes 

to the County’s already stringent environmental protections. 

If a NPDES permit is issued, the potential plaintiffs’ attorneys also will likely 

focus on whether the district permitee has complied with all its terms and conditions. We also believe that there is a high likelihood of litigation against EPA by 

some activist groups challenging the provisions of any general permit issued as well 

as seeking to expand the instances which should be covered by an individual permit 

rather than a general permit. Consequently, it appears that absent Congressional 

clarification, we and the Agency will be stuck in this judicial morass for some time, 

with precious resources being devoted to justifying a CWA program which we have 

consistently maintained was never intended by Congress to cover pesticide applications that were in substantial compliance with labeled use directions. 

Impacts of the Decision of the 6th Circuit and its implementation by the 

EPA 

The draft pesticide general permit (‘‘PGP’’) developed by EPA consists of nine 

parts: (1) Coverage, (2) Technology based effluent levels, (3) Water quality-based effluent levels, (4) Site monitoring, (5) Pesticide Discharge Management Plan (PDMP) 

(6) Corrective actions (7) Annual reporting and recordkeeping (8) EPA Contact information and mailing addresses and (9) Permit conditions applicable to specific states, 

Indian country lands or territorial and tribal requirements. The AMCA provided 30 

pages of comments during the comment period identifying problems with the draft 

PGP and questioning the rationale underlying many of its components. 

AMCA also highlighted the Agency’s gross underestimation of costs associated 

with permit implementation that would be borne by municipalities and private mosquito control entities. The AMCA provided an in-depth cost analysis based upon district input which projected that many of the 1,105 smaller municipalities with limited resources would likely cease operations if subject to the increased labor costs 

resulting from having to file Notices of Intent (NOI) to be subject to the permit and 

PDMP developments and amendments, preparation of annual reports necessary to 

46

satisfy state and regional water boards, purchase and use of surveillance equipment. 

This would leave local constituents without protection from mosquito-borne diseases. 

Of equal concern was the loss of on-site mosquito control capacity that could be 

called upon for relief operations, particularly after hurricanes or other natural disasters. 

The development and deployment of a PDMP as stipulated in the PGP is of significant concern for the 1,105 smaller agencies worried that their lack of comprehensive surveillance and control assets might be cause for litigation. All 734 AMCA 

member districts practice control of mosquitoes based upon a demonstrated need, 

surveillance trapping, requests for service, and/or disease surveillance from the 

state or Federal Government. Specific methods employed may vary depending on resource availability. Use of biological controls and source reduction are included as 

program elements when deemed necessary, practical and economically feasible. 

However, the PDMP, as currently proposed, suggests certain Integrated Pest Management (IPM) measures could be mandated (for example, requiring a certain number of traps in a location or allowing the public to question and overrule through 

litigation the best professional judgment of marginally funded entities), or requiring 

impractical levels of habitat modifications or biocontrol measures that are beyond 

the capabilities of a great many of the smaller control entities. For example, habitat 

modification requires expertise of wetland hydrology, permitting, species needs to 

name just a few of the requirements. Many mosquito control agencies would not 

have the resources to hire and retain a vector biologist to perform these functions. 

As a result, mosquito control will simply disappear in many of the less affluent 

rural areas of the country, adding an environmental justice dimension to the issue. 

Furthermore, the IPM procedures required in the draft PGP will exceed many 

small jurisdictions’ ability to perform over the long term without additional sustainable funding sources. While small entities could develop a preliminary IPM program 

as outlined in the PGP with funding assistance, the programs should be monitored 

to provide information to improve performance and lessen chemical usage in subsequent years. This is equivalent to an ‘‘adaptive management’’ approach where data 

are collected during initial start up and used to incrementally improve management 

efficacy in successive years. Funding for this activity, however, is not available. Currently, many public health departments are experiencing cuts in their operating 

budgets, initiating furloughs, etc.

By way of example, one mosquito control program in North Carolina estimates it will need to quadruple its annual budget (from $300,000.00 to little over $1.6 million) to fully comply with provisions stipulated for a PDMP. Frankly, there is no 

funding from the counties or the states to perform these activities. North Carolina 

is not alone in experiencing financial difficulties, and many programs in other states 

would be forced to shut down or reduce their control measures to comply with the 

draft PGP. 

Indeed, the administrative costs alone may be beyond the capabilities of many 

mosquito control programs. Once a program has developed acceptable NOI’s, 

PDMP’s and Annual reports and have them on file, the maintenance costs will be 

substantial due to the inevitable changes in program elements required from complying with the PGP In addition, there are PDMP requirements that appear reasonable at first glance, but are simply impractical or impossible to perform. For example, the draft PGP requires the permit holder to ‘‘Use the lowest effective amount 

of pesticide product per application’’. While this seems simple enough, upon further 

investigation it is clear that making such a determination is fraught with problems. 

First, current Federal law under FIFRA prohibits using any pesticide that exceeds 

the authorized labeled amount. Second, how would ‘‘use the lowest effective amount’’ 

be determined under field conditions? We know from years of experience that adult 

mosquito control can have field failures at the even the highest labeled rate due to 

a myriad of extenuating factors. Additionally, this requirement tacitly assumes that 

districts would knowingly use a higher amount of product than necessary to effect 

control. These products are extremely expensive and AMCA is not aware of any district possessing the excess funds needed to subsidize application rates at the highest 

level approved by the label unless they are required to provide adequate control. 

Third, this stipulation appears eminently well-suited for litigation, as districts can 

be challenged to prove whether or not they have used the ‘‘least amount of effective 

product’’. 

The requirement to illustrate a ‘‘Pest Management Area Determination’’ and develop a ‘‘pest management strategy’’ for each pest management area is problematic. 

Mosquito control districts may have over 1,000 different sites within their jurisdictions that are known to produce mosquitoes, and each site could have distinct features. Are permittees thus required to evaluate every site? How do we access environmental conditions within an application area sufficiently enough to comply with 

47

the permit? A representative site is generally used to assess conditions when we 

treat several thousand areas in an evening for adult mosquitoes, but we know from 

experience that meteorological conditions may vary considerably over such large 

areas. How much variance would be allowed before litigation is initiated by antipesticide opportunists is a very real concern for all control agencies. 

The great monitoring unknown under the PGP is the degree of ambient water 

quality sampling. Monitoring for larvicides such as Bacillus thuringensis isrealensis

and other biocontrols will be difficult since these are natural soil organisms and separating application products from background ‘‘noise’’ will be exceedingly problematic. Costs will vary widely for monitoring programs of other products depending on 

the requirements of a permit, but they can be expected to be substantial. For example, the NPDES permit currently being proposed in California requires both ambient 

water quality monitoring and toxicity testing for adult mosquito products used to 

control adult mosquitoes. The need for this permit was generated as a direct result 

of the 6th Circuit decision. The cost of performing this activity statewide is estimated to be $1 million annually. Only $10 million of adult mosquito control pesticides are used by California agencies on an annual basis, meaning 10% of local 

tax resources will be used in an attempt to comply with the ambient monitoring conditions of the permit, and this is just for the adult mosquito control products. It is 

fortunate that the California State Water Control Board is allowing districts to form 

coalitions to perform the monitoring. Without this option each control district would 

be required to perform the same monitoring program currently being proposed by 

the coalition, meaning each district could face the million dollar monitoring tag on 

their own. This alone would exceed many districts total operational revenues. To 

further complicate this matter, the proposed monitoring program still has to get approval from California regional boards and USEPA Region 9, which may place further monitoring requirements as a condition of the permit. We believe that if Congress reaffirms the inapplicability of the CWA to pesticide applications that the 

state would likewise decline to assert a need for NPDES permits. 

Conclusion 

Congress should clearly articulate and confirm its original intent with respect to 

the CWA and confirm that mosquito control activities conducted in substantial accordance with FIFRA are exempt from CWA NPDES requirements. The NPDES requirement in these circumstances provides no meaningful environmental benefit, 

but rather represents a significant obstacle to protecting public health and welfare. 

In the current economic situation, Congress should examine instances where needless burdens are placed on our nation’s citizens, as well as state and municipal governments. This is one such instance. Somewhat perversely, without Congressional 

intervention, the current situation will result in providing less protection to our citizens. It makes more sense to restore the status quo that existed for more than 30 

years prior to the decision of the 6th Circuit and recognize that the beneficial application of pesticides does not represent an activity that should be regulated under 

the CWA. Instead, comprehensive effective regulation of pesticide products, including impacts on water and non-target aquatic organisms, can and does occur under 

FIFRA. If Congress adopts such a position, water quality will continue to be maintained at a high level and a grave affront to environmental justice will have been 

avoided. 

Respectfully Submitted,

DOMINICK V. NINIVAGGI.

Mr. GIBBS. Thank you, Mr. Ninivaggi. Mr. Brown, do you have 

any comments or—okay. Mr. Semanko? Welcome. 

STATEMENT OF NORMAN M. SEMANKO, EXECUTIVE

DIRECTOR AND GENERAL COUNSEL, IDAHO WATER USERS 

ASSOCIATION, BOISE, ID; ON BEHALF OF NATIONAL WATER 

RESOURCES ASSOCIATION 

Mr. SEMANKO. Thank you, Chairman Gibbs, Ranking Members 

Bishop and Baca, my name is Norm Semanko and I am here on 

behalf of the Idaho Water Users Association as well as the National Water Resources Association. We do appreciate the opportunity to provide comments on this important topic and the need 

for legislation to address EPA’s new regulations. You have already 

heard about the court decision. You have heard about the impacts. 

48

You have heard about the pesticide general permit. Let me tell you 

about our members. Western agricultural water users regularly 

apply aquatic herbicides. 

In accordance with FIFRA, we have followed FIFRA and the labels ever since the law was enacted. We do this to keep water delivery systems clear and free from aquatic weeds. The use of aquatic herbicides provides for the efficient delivery of water, avoids 

flooding, promotes water conservation, and helps avoid water quality problems associated with other methods of aquatic weed control. 

The organizations I represent include members responsible for irrigating millions of acres of farmland as well as residential subdivisions, parks, schools, yards, and other irrigated lands throughout 

the West. All of these working Americans and the general public 

stand to be directly impacted by the regulations proposed by EPA 

in the draft pesticide general permit. And let me make this point: 

at some point and now is probably that time, environmental gamesmanship and opportunistic litigation must yield to the realities of 

public health and safety and the need to feed and clothe our citizens. This is beyond the point where it is fun to talk about—it is 

beyond the focus of trivial discussions. It is now time for us to see 

something is done about this situation. 

As a result of the decision, the discharge of pesticides from point 

source to waters of the United States will require permit coverage 

by April 9, 2011. The permit has not been issued by EPA yet. Our 

folks are not ready for the regulations. We take very seriously our 

obligations under FIFRA and any other obligations that would be 

required under Federal law. But we don’t know the rules of the 

game at this point. We don’t have the ability to inform our folks. 

We have regular pesticide applicator workshops in Idaho scheduled 

for the middle of March. We have no idea what we are going to tell 

our folks. EPA, Region 10 has no idea what they are going to tell 

our folks because there is no permit done yet. There is no regulation that has been finalized. 

Canals, ditches, and other delivery and drainage facilities are not 

uniformly waters of the United States. Therefore, the application 

of aquatic herbicides to these facilities does not automatically require an NPDES permit. Unfortunately, EPA, through the regulations is using the pesticide general permit as a vehicle to summarily and inappropriately make jurisdictional determinations 

with regard to these so-called, ‘‘Waters of the United States.’’

The current draft of the pesticide general permit creates numerous overlapping opportunities for paper violations to be tacked onto 

a violation associated with water quality criteria exceedance or the 

observation of an adverse effect on a water body use. Such additional violations include the requirement for very timely mitigation, 

plus very timely reporting, plus updating of the pesticide discharge 

management plan, plus update of other records, and may I add in 

Idaho, which is a non-delegated state, the additional conditions 

tacked on by our State DQ through the 401 certification provisions. 

Each of these could be separate violations according to EPA. That 

is where the environmental gamesmanship—that is where the litigation opportunities come in—nothing to improve the environment, 

just to suspend the use and discourage the use of these beneficial 

products. 

49

I have personally witnessed, unfortunately, EPA’s failure to provide meaningful public input on this matter. This thing seems to 

have been cooked from the beginning. EPA refused to ask the 6th 

Circuit en banc. They refused to ask the Supreme Court to review 

this. Relying upon EPA’s Federal Register notice, our members of 

the Idaho Water Users Association came to the public hearing in 

Boise to provide oral comments. 

While we appreciated the opportunity to attend and interact with 

EPA staff, we were disappointed that the hearing was not conducted according to the notice. The notice clearly said in the Federal Register, ‘‘EPA encourages interested and effected stakeholders 

to attend one of the scheduled public meetings and provide oral or 

written comments. Oral or written comments received at the public 

meetings will be entered into the docket for this permit.’’ Unfortunately, this was not at all the case. IWUA encouraged its members 

to attend. However, participants were told by EPA staff at the public meeting the comments would not be accepted but instead would 

need to be submitted in writing afterward. Oral comments would 

not be accepted at all. While EPA allowed a limited number of 

questions to be asked, there was no opportunity to comment and 

the comments were not entered into the docket. 

Some significant questions remain with regard to this permit as 

I have already mentioned. We are hopeful that a good faith effort 

will resolve this matter, but at this point we are at the point where 

we need legislative intervention. Simply, without legislation our 

members will not know what standards to apply. They frankly will 

not know whether they can use aquatic herbicides. Flooding, nondelivery of water, lack of the kinds of water conservation we have 

had in the past are all at major risk and there really is no other 

alternative at this point than legislation to fix this problem. Thank 

you, Madam Chair. 

[The prepared statement of Mr. Semanko follows:]

PREPARED STATEMENT OF NORMAN M. SEMANKO, EXECUTIVE DIRECTOR AND

GENERAL COUNSEL, IDAHO WATER USERS ASSOCIATION, BOISE, ID; ON BEHALF OF

NATIONAL WATER RESOURCES ASSOCIATION

Chairmen Gibbs and Schmidt, Ranking Members Bishop and Baca, my name is 

Norm Semanko and I am here on behalf of the Idaho Water Users Association 

(IWUA) and the National Water Resources Association (NWRA). I am the Executive 

Director and General Counsel of IWUA, Past President of NWRA, and a long-standing member of the Advisory Committee for the Alliance. We appreciate the opportunity to provide comments on the important topic of the Environmental Protection 

Agency’s (EPA’s) new regulations, potential missions and related legislation impacting rural job creation and ways of life. 

IWUA is a statewide, nonprofit association dedicated to the wise and efficient use 

of water resources. IWUA has more than 300 members, including irrigation districts, canal companies, water districts, municipalities, hydropower companies, 

aquaculture interests, professional firms and individuals. Our members deliver 

water to more than 2.5 million acres of irrigated farm land in Idaho. 

NWRA is a federation of state water associations and represents the collective interests of agricultural and municipal water providers serving the seventeen Western 

Reclamation states. NWRA has an active Water Quality Task Force and has long 

been involved in matters regarding the Clean Water Act in Congress, before the Administration, and in the courts. NWRA has also provided testimony and briefings 

for Congressional Committees, Members and staff on matters relating to the Clean 

Water Act and other environmental laws and regulations. 

Western water users are becoming increasingly concerned about the number of 

environmental regulations and policies that are currently being rewritten or reconsidered by the Obama Administration. In particular, recent rulemaking efforts at 

50

EPA and the White House Council on Environmental Quality carry the risk of real 

potential harm for Western irrigators and the rural communities that they serve. 

On June 2, 2010 EPA released its draft National Pollutant Discharge Elimination 

System (NPDES) permit for point source discharges from the application of pesticides to waters of the United States. This permit is also known as the Pesticides 

General Permit (PGP). The PGP was developed in response to a decision by the 

Sixth Circuit Court of Appeals (National Cotton Council, et at. v. EPA). The court 

vacated EPA’s 2006 rule that said NPDES permits were not required for applications of pesticides to U.S. waters. As a result of the Court’s decision. discharges to 

waters of the U.S. from the application of pesticides will require NPDES permits 

when the court’s mandate takes effect next April. EPA intends to issue a final general permit by December 2010. Once finalized, the PGP will be implemented in six 

states, Indian Country lands and Federal facilities where EPA is the NPDES permitting authority, and will be the benchmark for permit issuance in the 44 delegated states. 

Western agricultural water users regularly apply aquatic herbicides, in accordance with FIFRA approved methodologies, to keep their water delivery systems 

clear and free from aquatic weeds. 

The use of aquatic herbicides provides for the efficient delivery of water, avoids 

flooding, promotes water conservation and helps avoid water quality problems associated with other methods of aquatic weed control. The organizations I represent include members responsible for irrigating millions of acres of farmland, as well as 

residential subdivisions, parks, schools, yards and other irrigated lands throughout 

the West. All of these working Americans and the general public stand to be directly 

impacted by regulations proposed by EPA in the draft PGP, as outlined further in 

this section. 

Concern: Definition or ‘‘Waters of the United States’’

One key concern with this draft general permit is that the definition of ‘‘Waters 

of the United States’’ used in the PGP is the one that existed in Federal Regulations 

prior to the Supreme Court Rapanos decision. The decision was made by the Bush 

Administration not to issue a new rule, but instead to issue guidance in interpreting 

Clean Water Act jurisdiction under Rapanos. We have compared the December 2, 

2008 guidance memo issued by the U.S. Army Corps of Engineers and EPA that 

takes into account the Rapanos decision to the current regulations and discovered 

discrepancies. 

As a result of the National Cotton Council (NCC) decision, the discharge of a pesticide from a ‘‘point source’’ to ‘‘waters of the United States’’ will require permit coverage by April 9, 2011, when the Sixth Circuit’s ruling goes into effect. ‘‘Point 

Source’’ and ‘‘Waters of the United States’’ are legal terms of art and a frequent 

topic of litigation, so that the full scope of permit requirements for particular pesticide uses remains unclear after the NCC decision. Activists and some courts take 

an extremely broad view of the scope of ‘‘Waters of the United States’’ encompassing 

many features that farmers generally would not recognize as ‘‘waters’’. For this reason, potential enforcement targets will include those who apply pesticide to farmed 

wetlands or near intermittent streams, grass waterways, ditches, or other conveyances that flow to navigable waters. 

Concern: The PGP Does Not Clearly Exempt Aquatic Weed and Algae Control Activities From Expensive and Duplicative Federal Clean Water 

Act Regulations 

The application of aquatic herbicides in canals, ditches, drains and other irrigation delivery and drainage facilities is statutorily exempt from the definition of 

‘‘point source’’ under the Clean Water Act and therefore does not require an NPDES 

permit. The PGP does not clearly state that NPDES coverage is not required for 

these activities. EPA appears to be employing the PGP as a vehicle to eliminate or 

dilute the existing statutory point source exemptions. 

Canals, ditches, drains and other irrigation delivery and drainage facilities are not

uniformly ‘‘Waters of the U.S.’’. Therefore, the application of aquatic herbicides to 

these facilities does not automatically require an NPDES permit. Once again, EPA 

is using the PGP as a vehicle to summarily and inappropriately make these jurisdictional determinations. 

Concern: Multiple Opportunities for Stacked Clean Water Act Violations 

and Citizen Suits 

The current draft creates numerous, overlapping opportunities for paper violations to be tacked onto a violation associated with a water quality criteria exceedance or the observance of an adverse effect on a water body use. Such additional 

violations include the requirement for very timely mitigation plus very timely reVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
51

porting plus updating of the pesticide discharge management plan plus update of 

other records. Each of these could be separate violations according to EPA. We have 

suggested that EPA should eliminate such overlapping or stacked potential violations. 

Concern: Implications of Endangered Species Act Requirements Resulting 

From Consultation 

The current draft has a placeholder for the potential severe NPDES permit restrictions that the ongoing consultation with the U.S. Fish and Wildlife Service 

(FWS) and National Marine Fisheries Service (NMFS) could produce. EPA’s economic analysis does not take into account any such ESA restrictions. However, we 

know from the extremely stringent requirements for buffers around all Pacific 

Northwest waters that both Services’ requirements and the economic consequences 

thereof can be severe. If the Services add significant restrictions to the permit prior 

to its finalization, EPA should conduct a new economic analysis and then re-propose 

the permit for public comment. 

Concern: Draft PGP Requirements Are Unrealistic, Impractical and Burdensome for Local Governments and Small, Nonprofit Organizations To 

Implement 

The measures set forth in the Draft PGP to ‘‘identify the problem’’, develop ‘‘pesticide discharge management plans’’ and provide new levels of record keeping and 

annual reporting are beyond the capacity of small government irrigation districts, 

and small nonprofit canal company organizations. Irrigation districts and canal companies are responsible for irrigation delivery systems that often cover hundreds or 

thousands of square miles. These small government and small nonprofit organizations do not have the staff or the budget to identify all areas with aquatic weed or 

algae problems, identify all target weed species, identify all possible factors contributing to the problem, establish past or present densities, or any of the other documentation requirements in the Draft PGP. Several of the measures set forth in the 

draft PGP are overly burdensome and, in many cases, impractical—if not impossible—to implement. 

Concern: EPA Did Not Properly Solicit Public Comment on the PGP 

I have personally witnessed EPA’s failure to provide meaningful public input on 

this matter. Relying upon EPA’s Federal Register notice, my organization—the 

Idaho Water Users Association—encouraged our members to attend the public meeting in Boise and provide oral comments. While we appreciated the opportunity to 

attend and interact with EPA staff, we were disappointed that the hearing was not 

conducted according to the notice that was published in the Federal Register. The 

June 4, 2010 Federal Register notice clearly stated: ‘‘EPA encourages interested and 

affected stakeholders to attend one of the scheduled public meetings and provide 

oral or written comments . . . Oral or written comments received at the 

public meetings will be entered into the Docket for this permit’’ (emphasis 

added). Unfortunately this was not at all the case. 

In reliance upon EPA’s Federal Register notice, IWUA encouraged its members to 

attend the public meeting in Boise and provide oral comments. However, participants were told by EPA staff at the public meeting that comments would not be 

accepted, but instead would need to be submitted in writing afterwards; oral comments would be at all. While EPA allowed a limited number of questions to be 

asked, there was no opportunity to comment and comments were not entered into 

the Docket. This prevented meaningful participation by those interested and potentially affected stakeholders who relied upon the notice in the Federal Register and 

attended with the intent to provide oral comments. Many participants left the public 

meeting without being provided an opportunity to ask questions. Given the number 

of people that attended and the lengthy up-front presentations and explanations 

provided by EPA staff, there simply was not enough time. All in all, it was not a 

meaningful opportunity for the public to be heard. It certainly was not conducted 

in accordance with the notice published in the Federal Register.

Concern: There Are Legal Risks to Operators Associated With the Likelihood of EPA and States Meeting the April 9, 2011 Deadline 

Some significant questions remain surrounding the April 9, 2011 deadline. What 

is EPA’s and states’ contingency plan if the permits aren’t operational? How are operators (applicators and decision-making organizations) expected to continue their 

work if their protections under the 2006 EPA rule disappear on April 9, 2011? How 

are these organizations expected to plan between now and then? EPA and the 

Obama Administration should approach the 6th Circuit Court of Appeals now and 

get its approval for an additional stay beyond the current April 9, 2011 deadline. 

52

We are hopeful that a concerted good-faith effort working with EPA will result 

in a streamlined pesticide permitting regulatory process that will be efficient, fair 

and effective to American farmers and ranchers, as well as consistent with existing 

statutory exemptions in the Clean Water Act. However, because of our experience 

with EPA earlier in the public comment process, and the agency’s failure to defend 

the 2006 rule or pursue other reasonable alternatives, we have concerns about how 

serious our comments will be received. As a result, we believe it is advisable for 

Congress to provide additional oversight—and legislative relief—to address this very 

serious matter. 

Specifically, enactment of legislation such as H.R. 6087, introduced in the 111th 

Congress by the Agriculture full Committee Chairman Frank Lucas, would clarify 

that the additional regulatory requirements of the NPDES permitting process are 

not necessary and that continued use of pesticide products pursuant to FIFRA is 

sufficient.

Mrs. SCHMIDT. Thank you. And before I make my closing statement I want to recognize Mr. Bishop for 20 seconds on a personal 

privilege. 

Mr. BISHOP. I just want to welcome Dominick Ninivaggi to Washington. He is a graduate of the college I worked at for 29 years before I came here. You make us very proud. Thank you very much. 

Mr. NINIVAGGI. Thank you. 

Mrs. SCHMIDT. Well said. Members have been called for votes on 

the Transportation Committee, so unfortunately we are not going 

to have time for Members to ask questions to our witnesses because most of this Committee is going to have to go downstairs. So 

I ask that Members submit any questions they have for the record 

and that the witnesses to submit to the Committee their written 

answers to these questions. I apologize for the inconvenience, but 

I don’t have control of the calendar. 

The record of today’s hearing will remain open for 10 calendar 

days to receive additional material and supplementary written responses from the witnesses to any questions posed by a Member to 

this panel. I thank you all very much and have a great day. This 

hearing is adjourned. 

[Whereupon, at 4:18 p.m., the Subcommittees were adjourned.] 

[Material submitted for inclusion in the record follows:] 

53

SUBMITTED STATEMENT OF ROBERT GILLIOM, HYDROLOGIST, U.S. GEOLOGICAL

SURVEY

Thank you for the opportunity to provide you with an overview of our current understanding of the occurrence of pesticides in streams and groundwater across the 

United States. I am Robert Gilliom, a hydrologist with the U.S. Geological Survey 

(USGS). I direct pesticide studies for the National Water Quality Assessment Program (NAWQA). Several peer-reviewed, previously published reports were drawn 

upon for today’s overview. These reports are listed at the end of my written testimony. 

Two USGS programs include a national focus on pesticides in water resources. 

These programs, NAWQA, and the Toxic Substances Hydrology Program, provide 

nonregulatory scientific information on the quality of our water resources and factors that influence it. This information used by a wide range of stakeholders, including Federal and State agencies, pesticide registrants, and interest groups. The 

NAWQA program provides a broad nationwide assessment of a wide range of pesticides. The Toxic Substances Hydrology Program complements the NAWQA program with a targeted research approach to evaluate new and emerging water-quality issues, often involving the development of new analytical methods and their application in specific pesticide-use settings. The NAWQA program’s national findings, 

summarized in a 2006 report ‘‘The Quality of Our Nation’s Waters—Pesticides in 

the Nation’s Streams and Ground Water, 1992–2001’’, provide a nationwide view of 

pesticide occurrence, potential significance to humans and aquatic ecosystems, and 

relations between pesticide use patterns and levels found in water. Recent USGS 

studies have further evaluated trends in pesticide concentrations in streams and 

rivers. Among the major findings are that pesticides are frequently present in 

streams and groundwater, are not common at concentrations known to affect humans, but occur in many streams at concentrations that may have effects on aquatic 

life or fish-eating wildlife. 

USGS Approach to Pesticide Assessment 

USGS assessment of pesticides used a nationally consistent approach to study 51 

of the Nation’s major river basins and aquifer systems. Nationally, water samples 

for pesticide analysis were collected from 186 stream sites, bed-sediment samples 

were collected from 1,052 stream sites, and fish samples were collected from 700 

stream sites. Groundwater samples were collected from 5,047 wells. Most water 

samples were analyzed for 75 pesticides and 8 degradates [pesticide breakdown 

products], including 20 of the 25 most heavily used herbicides and 16 of the 25 most 

heavily used insecticides. Although many of the most heavily used pesticides were 

included, most of the more than 400 registered active ingredients were not analyzed. 

In addition to water analyses, 32 organochlorine pesticide compounds were analyzed in bed sediment and (or) fish tissue, including 19 pesticides and 13 degradates 

or manufacturing by-products. Most of the organochlorine pesticides are no longer 

used in the United States, but organochlorine compounds still persist in the environment. 

Pesticide Occurrence 

At least one pesticide was detected generally below levels of concern in water from 

all streams studied, and pesticide compounds were detected throughout most of the 

year in water from streams with agricultural (97 percent of samples), urban (97 percent), or mixed-land-use watersheds (94 percent). In addition, organochlorine pesticides (such as DDT) and their degradates and by-products were found in fish and 

bed-sediment samples from most streams in agricultural, urban, and mixed-land-use 

watersheds. Most of the organochlorine pesticides have not been used in the United 

States since before the NAWQA studies began, but their continued presence suggests their persistence in the environment. As we will discuss later, detection alone 

does not necessarily imply adverse human health or environmental impacts. 

Pesticides were less common in groundwater than in streams. They occurred most 

frequently in shallow groundwater beneath agricultural and urban areas, where 

more than 50 percent of wells contained one or more pesticide compounds. About 

1⁄3 of the deeper wells sampled, which tap major aquifers used for water supply, contained one or more pesticides or degradates. 

The findings show that streams are most vulnerable to pesticide contamination. 

However, because groundwater contamination is difficult to reverse once it occurs, 

groundwater is also a potential concern in agricultural and urban areas where 

ground water is used for drinking water. 

54

Potential for Effects on Human Health 

Assessment of potential effects on human health is based on comparing measured 

concentrations to available U.S. Environmental Protection Agency drinking water 

standards and fish consumption guidelines. Benchmarks are defined as estimates of 

the concentrations above which pesticides may have adverse effects on humans, 

aquatic life, or fish-eating wildlife. 

Most detections of pesticides were at low levels compared to human-health benchmarks. No streams draining undeveloped watersheds and only one stream with a 

mixed-land-use watershed had concentrations greater than a human-health benchmark. Annual mean concentrations of one or more pesticides exceeded a humanhealth benchmark in 8 of 83 agricultural streams and in 2 of 30 urban streams. Agricultural streams located in the Corn Belt (Illinois, Indiana, Iowa, Nebraska, Ohio, 

and parts of adjoining States) and the Mississippi River Valley accounted for most 

concentrations that exceeded benchmarks—all by atrazine, cyanazine (no longer in 

use by the end of the study), or dieldrin (no longer in use when the study began). 

The two urban streams where benchmarks were exceeded are in Texas (diazinon) 

and Hawaii (dieldrin). 

None of the stream sites sampled for the 2006 report were located at drinkingwater intakes. For perspective, 1,679 of the nation’s public water-supply intakes on 

streams were evaluated in the context of NAWQA land-use classifications and pesticide findings. Eighty-seven percent of these water-supply intakes are on streams 

draining undeveloped and mixed-land-use watersheds and are therefore unlikely to 

withdraw water with concentrations that are greater than a human-health benchmark. The likelihood of pesticide concentrations exceeding a human-health benchmark is greatest for those streams draining agricultural or urban watersheds, which 

account for about 12 and 1 percent, respectively, of public water-supply intakes on 

streams. 

As an example of extrapolating these findings, the USGS model for atrazine in 

streams can be used to predict the likelihood that the annual average concentration 

of atrazine in untreated stream water exceeds the USEPA drinking-water standard 

of 3 micrograms per liter in any stream in the nation. Atrazine concentrations were 

predicted to be highest in the Corn Belt and parts of the southern Mississippi River 

Valley, where use is high and natural features favor the transport of pesticides by 

runoff to streams. About 7 percent of the nation’s stream miles are predicted to have 

a 5 percent or greater chance of exceeding the drinking-water standard. Some of 

these streams may not be suitable as sources of drinking water without the use of 

strategies to lower concentrations. These types of analyses can be used to identify 

locations that have the greatest likelihood of water-quality problems and that are 

the highest priority for additional monitoring. 

Human-health benchmarks were seldom exceeded in groundwater. One or more 

pesticides exceeded a benchmark in about 1 percent of the 2,356 domestic and 364 

public-supply wells that were sampled. The greatest proportion of wells with a pesticide concentration greater than a benchmark was for those tapping shallow 

groundwater beneath urban areas (4.8 percent). The urban wells with benchmark 

exceedances included 1 public-supply, 3 domestic, and 37 observation wells, and 

most concentrations greater than a benchmark were accounted for by dieldrin, 

which is no longer used. 

Potential for Effects on Aquatic Life and Wildlife 

Concentrations of pesticides were greater than water-quality benchmarks for 

aquatic life and (or) fish-eating wildlife in more than half of the streams with substantial agricultural and urban areas in their watersheds. Of the 178 streams sampled nationwide that have watersheds dominated by agricultural, urban, or mixed 

land uses, 56 percent had one or more pesticides in water samples that exceeded 

at least one aquatic-life benchmark. Urban streams had concentrations that exceeded one or more benchmarks at 83 percent of sites—mostly by the insecticides 

diazinon, chlorpyrifos, and malathion—although frequencies of exceedance declined 

during the study period. Concentrations exceeded benchmarks in 95 percent of 

urban streams sampled during 1993–1997 and in 64 percent of streams during 

1998–2000. Agricultural streams had concentrations that exceeded one or more 

benchmarks at 57 percent of sites—most frequently by chlorpyrifos, azinphos-methyl, atrazine, p,p′-DDE, and alachlor. As the use of alachlor declined through the 

study period, benchmark exceedances for this compound also declined, with no 

exceedances during the last 3 years of study. 

Aquatic-life benchmarks for organochlorine pesticide compounds in bed sediment 

also were frequently exceeded in urban areas (70 percent of urban stream sites). 

Most compounds that exceeded aquatic-life benchmarks for sediment were derived 

from organochlorine pesticides that have not been used since before the study 

55

began, such as DDT, chlordane, aldrin, and dieldrin. In agricultural streams, aquatic-life benchmarks were exceeded at 31 percent of sites—most often by DDT compounds and dieldrin. Comparisons of concentrations of organochlorine compounds in 

whole fish with wildlife benchmarks indicate a wide range of potential for effects 

on fish-eating wildlife. Similar to bed sediment, benchmarks for fish were exceeded 

most often by compounds related to DDT, dieldrin, and chlordane in urban streams, 

and by DDT compounds, dieldrin, and toxaphene in agricultural streams in areas 

where historical use on crops was most intense. 

Assessment and management of the potential effects of pesticides on aquatic life 

and wildlife are complicated by the combined presence in streams of (1) currently 

used pesticides and degradates, and (2) organochlorine pesticide compounds derived 

from pesticides that were largely banned prior to 1990. The widespread potential 

for adverse effects shown by the screening-level assessment—combined with the uncertainty due to the preliminary nature of the assessment and the complexity of pesticide exposure—indicate a continuing need to study the effects of pesticides on 

aquatic life and wildlife under the conditions of pesticide exposure that occur in the 

environment. 

Frequently Detected Pesticides and Relations to Land Use and Pesticide 

Use 

Pesticides detected most frequently in streams and groundwater are among those 

used most heavily during the study or in the past. Their occurrence follows patterns 

in land use and use intensity, with additional influence—especially for groundwater—by natural factors and management practices. The most frequently detected 

herbicides used mainly for agriculture during the assessment period—atrazine, 

metolachlor, cyanazine, alachlor, and acetochlor—generally were detected most often 

and at the highest concentrations in water samples from streams in agricultural 

areas with their greatest use, particularly in the Corn Belt. Five herbicides commonly used in urban areas—simazine, prometon, tebuthiuron, 2,4-D, and diuron—

and three commonly used insecticides—diazinon, chlorpyrifos, and carbaryl—were 

most frequently detected in urban streams throughout the Nation, often at higher 

concentrations than in agricultural streams. Total DDT was measured at some of 

the highest concentrations in bed sediment and fish in parts of the Southeast and 

in parts of California, Oregon, and Washington, where DDT was historically used 

on cotton, tobacco, orchards or other crops. 

Land use and pesticide use are not the only factors influencing the occurrence of 

pesticides. Natural features and land-management practices also affect their distribution, particularly in groundwater. Groundwater is most vulnerable to contamination in areas with highly permeable soil and aquifer materials and where drainage practices do not divert recharge to streams and other surface water. 

Pesticide concentrations in stream water also vary by season, with lengthy periods 

of low concentrations punctuated by seasonal pulses of much higher concentrations. 

For example, in streams that drain farmland throughout most of the Corn Belt, concentrations of herbicides were generally highest during spring runoff following pesticide applications. Similarly, concentrations of diazinon were highest during the 

winter in parts of the San Joaquin Valley, California, when applications to dormant 

almond orchards were followed by rainfall. Seasonal patterns in pesticide concentrations are important to consider, both in managing the quality of drinking water 

withdrawn from streams in agricultural and urban settings, and in evaluating the 

potential for adverse effects on aquatic life. 

Mixtures and Degradates 

Pesticides most commonly occur as mixtures of multiple compounds, rather than 

individually, including degradates resulting from the transformation of pesticides in 

the environment. Streams in agricultural and urban areas almost always contained 

complex mixtures of pesticides and degradates. More than 90 percent of the time, 

water samples from streams with agricultural, urban, or mixed-land-use watersheds 

contained 2 or more pesticides or degradates, and about 20 percent of the time they 

had 10 or more. Mixtures were less common in groundwater. Nevertheless, about 

1⁄2 of the shallow wells in agricultural areas and about 1⁄3 of shallow wells in urban 

areas contained 2 or more pesticides and degradates—less than 1 percent had 10 

or more. The herbicides atrazine (and its degradate, deethylatrazine), simazine, 

metolachlor, and prometon were common in mixtures found in streams and groundwater in agricultural areas. The insecticides diazinon, chlorpyrifos, carbaryl, and 

malathion were common in mixtures found in urban streams. 

Degradates are often as common in streams and groundwater as their parent pesticides. For example, atrazine, the most heavily used herbicide in the nation during 

the study period, was found together with one of its several degradates, 

56

deethylatrazine, in about 75 percent of stream samples and about 40 percent of 

groundwater samples collected in agricultural areas across the nation. Degradates 

are particularly important in groundwater, which moves relatively slowly through 

soils and aquifers, providing the extended time and conditions favorable for transformation of pesticides. Most degradates are less toxic than their parent pesticide, 

but some have similar or greater toxicities. 

The widespread and common occurrence of pesticide mixtures, particularly in 

streams, means that the total combined toxicity of pesticides in water and other 

media often may be greater than that of any single pesticide compound that is 

present. This adds uncertainty to conclusions about potential effects of pesticides 

based on individual benchmark comparisons, and continued research is needed by 

human-health specialists and toxicologists on the potential toxicity of pesticide mixtures, including degradates, to humans, aquatic life, and wildlife. USGS data on the 

occurrence and characteristics of mixtures and degradates is helping to target and 

prioritize toxicity assessments. 

Trends in Pesticides 

Following the national assessment findings discussed above, the USGS has been 

assessing whether pesticide levels in the nation’s streams and groundwater are increasing or decreasing over time. USGS trend analyses indicate that several major 

pesticides mostly declined or stayed the same in ‘‘Corn Belt’’ rivers and streams 

from 1996 to 2006. The declines in pesticide concentrations closely followed declines 

in their annual applications, indicating that reducing pesticide use is an effective 

and reliable strategy for reducing pesticide contamination in streams. 

Declines in concentrations of the agricultural herbicides cyanazine, alachlor and 

metolachlor reflect USEPA regulatory actions as well as the influence of new pesticide products. In addition, declines from 2000 to 2006 in concentrations of the insecticide diazinon correspond to the USEPA’s national phase-out of nonagricultural 

uses. Studies in progress on urban streams confirm that the decline in diazinon is 

a strong national pattern. These USGS findings on pesticide trends have been used 

by EPA to track the effectiveness of changes in pesticide regulations and use. 

The USGS studied 11 herbicides and insecticides frequently detected in the Corn 

Belt region, which generally includes Illinois, Indiana, Iowa, Nebraska and Ohio, as 

well as parts of adjoining states. This area has among the highest pesticide use in 

the nation—mostly herbicides used for weed control in corn and soybeans. As a result, these pesticides are widespread in the region’s streams and rivers, largely resulting from runoff from cropland and urban areas. Elevated concentrations can affect aquatic organisms in streams as well as the quality of drinking water in some 

high-use areas where surface water is used for municipal supply. Four of the 11 pesticides evaluated for trends were among those most often found in previous USGS 

studies to occur at levels of potential concern for aquatic life. Atrazine, the most frequently detected, is also regulated in drinking water. 

Pesticide use is constantly changing in response to such factors as regulations, 

market forces, and advances in science. For example, acetochlor was registered by 

the USEPA in 1994 with a goal of reducing use of alachlor and other major corn 

herbicides—acetochlor use rapidly increased to a constant level by about 1996, and 

alachlor use declined. Cyanazine use also decreased rapidly from 1992 to 2000, as 

it was phased out because of environmental concerns. Metolachlor use did not markedly decrease until about 1998, when S-metolachlor, a more effective version that 

requires lower application rates, was introduced. Each of these declines in use was 

accompanied by similar declines in concentrations. Overall, use is the most dominant factor driving changes in concentrations. 

Only one pesticide—simazine, which is used for both agricultural and urban weed 

control—increased from 1996 to 2006. Concentrations of simazine in some streams 

increased more sharply than its trend in agricultural use, suggesting that non-agricultural uses of this herbicide, such as for controlling weeds in residential areas and 

along roadsides, increased during the study period. 

Glyphosate, an herbicide which has had rapidly increasing use on new genetically 

modified varieties of soybeans and corn, and which now is the most heavily used 

herbicide in the nation, was not measured until late in the study and thus had insufficient data for analysis of trends. USGS studies from 2001 through 2006 to investigate and document the occurrence, fate, and transport of glyphosate and its 

degradation product, aminomethylphosphonic acid (AMPA), included analyses of 

2,135 groundwater and surface-water samples, 14 rainfall samples, and 193 soil 

samples. Results from USGS studies for 608 surface water samples show that 

glyphosate was detected in 32 percent, compared to AMPA detected in 51 percent. 

Results for 485 groundwater samples showed much lower occurrence, with 6 percent 

and 10 percent, respectively for glyphosate and AMPA. 

57

This statement provides a brief overview of USGS research on pesticides in 

streams and groundwater. We welcome the opportunity to provide any further information or assistance. 

Sources 

All material provided is from the following peer-reviewed scientific publications: 

Gilliom and others, 2006, The Quality of Our Nation’s Waters—Pesticides in the 

Nation’s Streams and Ground Water, 1992–2001: U.S. Geological Survey Circular 

1291, 172 p. 

Gilliom, R.J., and Hamilton, P.A., 2006, Pesticides in the nation’s streams and 

ground water, 1992–2001—a summary: U.S. Geological Survey Fact Sheet 2006–

3028, Available Online. 

Vecchia, A.V., R.J. Gilliom, D.J. Sullivan, D.L. Lorenz, and J.D. Martin, 2009, 

Trends in concentrations and use of agricultural herbicides for Corn Belt rivers, 

1996–2006: ENVIRONMENTAL SCIENCE AND TECHNOLOGY v. 43, pp. 9096–9102, Available Online. 

Belden, J.B., R.J. Gilliom, and M.J. Lydy, 2007, How well can we predict the toxicity of pesticide mixtures to aquatic life? INTEGRATED ENVIRONMENTAL ASSESSMENT

AND MANAGEMENT, v. 3, no. 3 ., pp. 364–372. Available Online. 

Scribner, E.A., W.A. Battaglin, R.J. Gilliom, and M.T. Meyer, 2007, Concentrations of glyphosate, its degradation product, aminomethylphosphonicacid, and 

glufosinate in ground- and surface-water, rainfall, and soil samples collected in the 

United States, 2001–06: U.S. Geological Survey Scientific Investigations Report 

2007–5122, 111 p. 

SUBMITTED STATEMENT OF AARON HOBBS, PRESIDENT, RISE (RESPONSIBLE INDUSTRY

FOR A SOUND ENVIRONMENT)®

On behalf of RISE (Responsible Industry for a Sound Environment)® and our 

member companies, I would like to thank Chairwoman Schmidt, Chairman Gibbs, 

Ranking Member Baca, Ranking Member Bishop and all of the Members of the Subcommittees for your leadership in holding this hearing. I would also like to thank 

House Agriculture Committee Chairman Lucas and Ranking Member Peterson, as 

well as House Transportation and Infrastructure Committee Chairman Mica and 

Ranking Member Rahall. I greatly appreciate the opportunity to share RISE’s concerns about the court-ordered National Pollutant Discharge Elimination System 

(NPDES) permits that will be required by United States EPA for pesticide applications ‘‘to, over, or near’’ water as of April 9, 2011. 

Our industry provides the EPA-registered products applicators use to protect public health by controlling mosquitoes and potentially dangerous insects; protect and 

enhance our forests and forest production by controlling pests and allowing for continued safe recreation, commerce, and basic usability of our nation’s water ways 

through control of invasive weeds, fish, algae and other such species. Thank you for 

your effort today to protect these essential public health, safety and natural resource product uses by supporting passage of legislation to clarify the primacy of 

the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in regulating pesticide use. 

Congress never intended to regulate pesticide applications with Clean Water Act, 

NPDES permits. In fact, EPA had no concerns in this area, but must now comply 

with a court order in National Cotton Council v. EPA that requires the agency and 

the states to create and implement an NPDES permit program and accompanying 

enforcement for applications of pesticides ‘‘to, over or near water’’ by April 9, 2011. 

We ask that you reaffirm that NPDES permits should not be required for the application of EPA-approved pesticides. Requiring NPDES permits is duplicative of the 

long-standing FIFRA-based regulatory process and will cost small businesses, cities, 

counties, and states significant resources and jobs. 

Protecting Public Health, Water and Natural Resources 

Your assistance today can help ensure protection against the many diseases carried by mosquitoes that sadly impact families every year. Without action, April 

showers will not only bring May flowers, but will also bring uncertainty, the potential for citizen actions suits, job losses, and the real potential for decreased protection from West Nile Virus, Dengue Fever, Equine Encephalitis and other mosquitoborne diseases. 

The Centers for Disease Control (CDC) reports that in 2010, 941 people in the 

U.S. became ill from West Nile Virus. According to the CDC there were 62 cases 

and 7 fatalities that year. In only 5 short years, West Nile Virus spread to 45 states 

and the District of Columbia with 9,862 cases and 264 fatalities in 2003. Since that 

58

time the numbers have continued to grow, in 2010 there were 981 cases and 45 fatalities. Other mosquito-borne diseases such as yellow fever, rift valley fever, malaria and dengue fever, have already reached the U.S. Not only are our citizens at 

risk, dogs and horses are also very susceptible to West Nile Virus, Eastern Equine 

Encephalitis, and heartworms, among other diseases. 

According to the American Mosquito Control Association, there are at least 734 

named mosquito abatement districts and 1,105 mosquito control entities that will 

be subject to NPDES permit requirements. The association estimates that it will 

cost at least $3.7 million for these entities to research, revise and file the required 

Notices of Intent (NOIs) just for mosquito control. Every dollar diverted from mosquito treatments to comply with a new, costly and duplicative regulatory regime will 

reduce the level of protection we provide to our families, pets, and friends from 

these deadly diseases. 

In addition to mosquito control, NPDES permits will reduce and possibly eliminate protection from numerous invasive species in U.S. waters. Invasive species 

such as the Snakehead fish right here in the Potomac, the Asian Flying Carp 

threatening our Great Lakes, Zebra Mussels in our Great Lakes and the California 

Delta, and hydrilla and Eurasian water milfoil choking water ways from Maryland 

to Florida to Texas and beyond are currently controlled with the responsible use of 

pesticides. Invasive plants and animal species, such as the few mentioned, have a 

devastating impact on the environment, economy, recreation, and power generation 

in the U.S. The estimated damage from and the cost to control invasive plants and 

animal species in the U.S. exceeds $138 billion on an annual basis (Pimentel et al.,

2005). These costs will sky rocket under the proposed permit scheme, jobs will be 

lost and environmental protection will be weakened. 

Eurasian zebra mussels alone are estimated to cost the U.S. $5 billion in control 

and reparation costs. Not only have these small mollusks impacted the U.S. economy, they are severely impacting the native ecosystems of U.S. lakes and major 

river systems (http://www.collegeonline.org/library/articles/zebra-mussels/). 

Hydrilla and Eurasian water milfoil spread quickly and wreak havoc on lakes, irrigation canals, and reservoirs. These weeds crowd out beneficial native vegetation, 

block irrigation and drainage canals, interfere with public water supplies and power 

generation and impede fishing and navigation. Dense mats of these invasive weeds 

also create stagnant water, a breeding ground for mosquitoes. Hydrilla also harbors 

the fast growing epiphytic cyanobacterial algae, which grows on top of the hydrilla. 

According to Susan B. Wilde, Ph.D., research professor at the University of South 

Carolina and member of the Weed Science Society of America, over a hundred bald 

eagle deaths can be attributed to a neurological disease associated with the algae. 

(http://www.wssa.net/WSSA/PressRoom/WSSAlEaglesEatingAlgae.pdf). Snake 

heads and Asian Flying Carp have fewer to no natural predators and out compete 

native fish leading to devastation of native ecosystems. 

Finally, pesticides protect and allow for the efficient regeneration of forests. 

Healthy forest land also requires vegetation management to control non-native and 

invasive species and to reduce vegetative competition. In addition to healthy forests, 

pesticides are used to manage underbrush to prevent forest fires and the enormous 

damage they cause. 

Costs and Job Losses 

As stated, the proposed permit requirements will greatly increase the costs of controlling pests that threaten our health and environment. Further, the permits 

hinder the ability of states and municipalities to maintain highways, railroad lines, 

and electricity rights-of-way in an efficient and cost effective manner. These cost increases will place a significant financial burden on these entities while decreasing 

the safety of our roads and rails and decreasing the reliability of our electricity. 

In addition to the increased control and permit compliance costs on states and localities, the proposed permit will impact numerous small businesses nationwide that 

provide treatment for these pests resulting in the loss of one full-time employee providing service to customers. Many applicator companies are struggling to survive as 

their municipal and community customers scale back on service, so reassigning one 

employee to comply with NPDES permit paperwork will effectively put many out 

of business or limit their ability to grow their business and hire new employees. For 

example, the majority of aquatic weed control treatments in the U.S. are performed 

by approximately 300 small businesses each with less than 15 employees. According 

to our analysis, the NPDES permit will require virtually every aquatic applicator 

company in the U.S. to submit a Notice of Intent (NOI) triggering compliance with 

burdensome paperwork requirements. Such requirements mean the loss of one fulltime employee providing service in the field to handle the additional paperwork and 

59

ensure compliance. The reassignment of staff to meet the paperwork requirements 

is estimated to cost these small businesses approximately $50,000 annually. 

Further, many of these small businesses operate in multiple states and will need 

to comply with several different states’ permit requirements. These companies are 

committed to complying with all new regulatory requirements. However, minor mistakes could be made as these companies struggle to understand the copious paperwork requirements associated with each state’s permit, especially since no final permits have yet to be issued. A simple paperwork violation of the NPDES permit 

under the Clean Water Act can cost small businesses $11,000, for each and every 

mistake. 

Confusion Among Applicators Is Increasing as the April 9 Deadline Approaches 

Under the court order in National Cotton Council v. EPA, pesticide applications 

‘‘to, over or near’’ water will be subject to NPDES permits as of April 9, 2011. While 

we recognize that EPA and the states have worked hard to develop these permits, 

we are deeply concerned that the court deadline is less than 2 months away. EPA 

has not yet issued a final permit for the six states under its regulatory jurisdiction. 

In fact the draft permit’s required Endangered Species Act consultation between 

EPA, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service 

is not slated to be complete until later this month. 

About half of the states that are required to develop their own permits have not 

issued draft permits because they are seeking guidance from the final EPA permit. 

At least two states require legislative action before they can implement permits. 

Further, many states are struggling to develop management systems to process numerous NOIs under tight budgetary constraints. While EPA and the states have 

worked hard to meet the court-ordered deadline, there is not enough time to get permit processes in place or to educate local governments, land owners and pesticide 

applicators about the new requirements prior to the deadline. These entities are 

struggling to plan for this spring’s pest control treatments in the absence of clear 

guidance from regulators. Without Congressional action, these entities could face enforcement action and be subject to citizen action lawsuits and EPA and state enforcement, including fines beginning on April 9. 

RISE encourages Congress to pass legislation that clarifies that NPDES permits 

should not be required for the application of FIFRA-regulated pesticides. Failure to 

pass legislation prior to April 9 will have significant consequences for states, municipalities, land owners and pesticide applicators. 

EPA’s Pesticide Registration Process Accounts for Impacts to Water and 

Aquatic Life 

Under FIFRA, our industry works collaboratively with U.S. EPA and the states 

to ensure products are rigorously regulated and available when consumers and professionals seek them. Every product sold in the U.S. must first be thoroughly evaluated by the EPA to ensure that it meets Federal safety standards to protect human 

health and the environment. EPA grants a ‘‘registration’’ or license that permits a 

pesticide’s distribution, sale, and use only after the product meets the most current 

scientific and regulatory standards. 

In evaluating a pesticide registration application, EPA assesses a wide variety of 

potential human health, animal health and environmental effects associated with 

use of the product through the review of over one hundred extensive scientific studies, including the impact of the pesticide on ground water, surface water, drinking 

water and aquatic life. These studies, which must be conducted according to strict 

EPA protocols, include an assessment of how the chemical may change or behave 

in the environment, and its toxicity or unintended impact on people, plants and animals that are not the original target of the product. The tests also include an analysis of the potential effects of the pesticide on possible sensitive subpopulations such 

as infants and children, the elderly or pregnant women, and endangered species. 

The registration process also includes an assessment of an individual’s aggregate exposure to all registered uses of the product. 

Additionally, EPA oversees product label development for each registered product. 

The label contains explicit directions for product use, including the amount, frequency or timing of applications and storage and disposal practices. The use of a 

product in a manner not specified on the label is a violation of the law and subject 

to prosecution. Furthermore, states have their own pesticide registration programs, 

adding an additional layer of oversight to product use that is specific to the use patterns of each jurisdiction. These standards are the highest and strongest scientific 

requirements in the World. 

60

Requiring NPDES permits for these products will add a great deal of paperwork 

and reporting requirements for pesticide applicators, but it will not provide any additional environmental protections that are not already in place under FIFRA and 

state regulation. 

Conclusion 

Thank you very much for the opportunity to submit this testimony and for your 

leadership in holding this hearing. The proposed NPDES permits for pesticide applications are duplicative, extremely costly and could jeopardize the ability of states, 

municipalities and landowners to protect the public health and our natural resources. Further, such permits have never been contemplated by U.S. EPA or Congress for pesticide applications and are only now required by court order. RISE encourages Congress to pass legislation that clarifies the primacy of FIFRA in regulating pesticides. NPDES permits should not be required for the application of 

FIFRA-regulated pesticides. 

SUBMITTED STATEMENT OF RODNEY SNYDER, CHAIR; AND BEAU GREENWOOD, VICE

CHAIR, PESTICIDE POLICY COALITION

The Pesticide Policy Coalition (PPC) is pleased to provide this testimony in support of this joint hearing on pesticide NPDES general permits. The PPC is a coalition of food, agriculture, pest management, and related organizations that support 

transparent, fair, and science-based regulation of pest management. PPC members 

include nationwide and regional farm, commodity, specialty crop, and silviculture 

organizations; cooperatives; food processors and marketers; pesticide manufacturers, 

formulators and distributors; pest- and vector-control operators; research organizations; and other interested parties. PPC serves as a forum for the review, discussion, 

development, and advocacy of pest management policies and issues important to its 

members. 

EPA’s Pesticide NPDES General Permit 

The Environmental Protection Agency’s (EPA’s) final pesticide NPDES general 

permit (PGP) development effort is a result of the January 2009 decision of the 6th 

Circuit Court of Appeals in the case of National Cotton Council et al., v. EPA. 553 

F. 3d 927 (6th Cir. 2009). To be finalized and fully implemented by April 9, 2011, 

the PGP will be enforced by EPA in several states and certain other areas, and its 

multitude of requirements is forming a template for permit development and enforcement by 44 other states. The PPC has previously provided public comments detailing its concerns with the draft PGP published in June 2010. Despite efforts by 

EPA to modify its PGP in light of public, state and Federal comments, the PPC continues to have very significant concerns that the permit unnecessarily duplicates 

other, more appropriate statutes, and will impose untenable costs and legal jeopardy 

on thousands of permittees and others. We believe this is not what Congress intended for pesticide regulation and water quality protection. Before we describe 

these concerns, let us provide a brief overview of the extensive regulatory regime 

that has been in place for decades. 

Congress Chose FIFRA for Pesticide Regulation and Water Quality Protection 

Four months after Congress enacted the Clean Water Act (CWA) it enacted the 

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to control all aspects 

of pesticide registration, sales and use. In the decades since, EPA has never issued 

an NPDES permit for the application of a pesticide made intentionally to target a 

pest that is present in or over, including near, waters of the U.S. Instead, EPA has 

been regulating these and all other types of applications under FIFRA, as intended 

by Congress. Congressional intent to this effect was clearly spelled out in the House 

Committee Report for FIFRA in 1971:

‘‘2. Statement of findings:

The Committee did not included in H.R. 10729 the statement of legislative 

findings as originally proposed in H.R. 4152. The Committee did not take 

this action in derogation of the basic intent of H.R. 4152, but did so to avoid 

cluttering the final statute with language which the Committee feels is interpretive of the other provisions of this legislation. It is therefore the Committee’s intent that:

‘‘The Congress hereby finds that pesticides are valuable to our Nation’s agricultural production and to the protection of man and the enviVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00066 Fmt 6621 Sfmt 6621 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
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1The Federal Food, Drug, and Cosmetic Act (FFDCA) authorizes EPA to set tolerances, or 

maximum residue levels, for pesticides used in or on foods or animal feed, and authorizes other 

agencies to monitor for pesticide residues and enforce the tolerances. Within the Food Quality 

Protection Act of 1996, Congress amended FIFRA and FFDCA to establish additional safety 

standards for new and old pesticides and to make uniform requirements regarding processed 

and unprocessed foods. Other Federal statutes may also affect pesticide registration and use, 

including the Endangered Species Act. 

ronment from insects, rodents, weeds, and other forms of life which may 

be pests; but it is essential to the public health and welfare that they 

be regulated closely to prevent adverse effects on human life and the environment, including pollution of interstate and navigable waters; . . . and that regulation by the Administrator and cooperation by 

the States and other jurisdictions as contemplated by the Act are appropriate to prevent and eliminate the burdens upon interstate and foreign 

commerce, to effectively regulate such commerce, and to protect the public health and welfare and the environment.’’ (Emphasis added)

H.R. Rep. No. 92–511, 92d Cong., 2d Sess., 13–14 (1971)

The FIFRA registration process described by EPA in the Fact Sheet accompanying 

the Agency’s draft PGP in June, 2010 detailed the requirements for many dozens 

of environmental, health and safety studies to establish the conditions under which 

pesticides can be legally used in the United States. Many of these studies form the 

basis of EPA’s use restrictions incorporated into pesticide product labels, including 

for those product uses covered by EPA’s PGP. EPA’s 2006 final rule codified the 

Agency’s long-held exemption from NPDES permitting of pesticides applied into and 

over, including near, waters of the US when made consistent with the FIFRA label 

(71 Fed. Reg. 68483). However, this rule was widely challenged and in February 

2009, the 6th Circuit Court of Appeals vacated EPA’s rule and required the development of a pesticide NPDES permitting program for these uses. The Court granted 

2 year stay of its decision to April 9, 2011. 

Unless Congress relieves them of the duty in the two months remaining to the 

end of the stay, EPA and states must complete and implement 45 different functional, achievable and defensible NPDES general permits for aquatic pesticide use. 

Pesticide Testing & Registration Requirements 

Pesticides and their timely application play an important role in protecting our 

food and water supplies, public health, natural resources, infrastructure and green 

spaces. All pesticides used in the United States for agriculture, lawn and garden, 

silviculture, mosquito control, aquatic invasive weed and animal control, and other 

pest control uses are thoroughly evaluated and strictly regulated by Federal and 

state laws. Before pesticides can be manufactured, transported or sold, they must 

undergo nearly a decade of extensive research, development, testing, governmental 

review, and approval. More than 100 studies costing more than $150 million are 

performed to determine a chemical’s safety to human health and the environment; 

only one in more than 100,000 candidate chemicals successfully pass these trials 

and become registered pesticide products for the marketplace. 

EPA regulates the testing and use of pesticides primarily under the authority of 

the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).1 Through FIFRA 

regulations, EPA controls pesticide testing, registration, manufacture, composition, 

packaging, labeling, transportation, use, storage, and disposal by applying a risk/

benefit standard (‘‘will not cause any unreasonable risk to man or the environment, 

taking into account the [pesticide’s] economic, social, and environmental costs and 

benefits . . .’’). EPA may require additional data at any time, and suspend or cancel 

a product’s registration for good cause. Pesticide product labels incorporate directions for use and specific use restrictions that are conditions of EPA’s registration 

requirements. Amendments to FIFRA in 1988 introduced a further layer of regulation by directing EPA to conduct a comprehensive pesticide re-registration program—a complete review of the human health and environmental effects of pesticides first registered before November 1, 1984, to make decisions about these pesticides’ future use. Pesticides that met current scientific and regulatory standards 

were declared ‘‘eligible’’ for re-registration, and any additional requirements for reregistration were summarized in Re-registration Eligibility Decision (RED) documents. The re-registration program was completed in 2008 and implemented a number of policy changes. Even before the re-registration program was completed, EPA 

began implementing reregistration review starting in early 2007. 

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2 Congressional Testimony, February 16, 2011, Statement of the Honorable John Salazar, 

Commissioner, Colorado Department of Agriculture, before the Joint Hearing of the Committee 

on Agriculture Subcommittee on Nutrition and Horticulture, and Committee on Transportation 

and Infrastructure Subcommittee on Water Resources and Environment to Consider Reducing 

the Regulatory Burden Posed by the Case National Cotton Council v. EPA.

Economics of EPA’s PGP 

The economic conditions of recent years have forced states, businesses and individuals across the country to face dire budget situations. This has caused everyone, 

including Congress, to tighten their belts, cancel plans for many new initiatives, examine expenditures and cut those that are unnecessary or unaffordable. We are convinced that EPA’s PGP is both unnecessary and unaffordable. As the Honorable 

John Salazar, Commissioner, Colorado Department of Agriculture and former Member of Congress, states in his testimony for this hearing, ‘‘It is very difficult to justify 

diverting even more resources to manage paperwork for a permit that is duplicative 

of other regulatory programs and has no appreciable environmental benefits.’’ 2

Last fall EPA published its statement of economic and time burden estimated to 

be levied by its PGP on private and public entities, in the form of an Information 

Collection Request (ICR). Using EPA’s data, we have determined that EPA has significantly underestimated the true potential cost and burden of the PGP. For example, EPA’s November 2010 publication of the ICR anticipates that private permittees 

will spend nearly 1 million hours and $50 million annually to comply with the PGP, 

and Federal, state and municipal permitting authorities will collectively spend nearly 46,000 hours and spend $1.7 million implementing and enforcing the PGP. While 

those ICR estimates would be indeed significant burdens, we believe they don’t come 

close to the likely real cost in time and funds for both permittees and permitting 

agencies. This underestimate is revealed when we examine the ICR in detail:

• EPA’s estimate of business-permittee burden is that 5.7 million aquatic pesticide applications are made to more than 100 million acres annually, and that 

365,000 permittees will spend a total of 987,904 hours and $50 million annually 

to comply with just the information collection requirements of the PGP. This 

translates to 2.7 hours/year and $50 for each permittee.

• EPA’s estimate of the permitting-authority burden is that 44 states will spend 

a total of 45,809 hours and $1.7 million annually to implement the program. 

This translates to 1,041 hours and $38,636 per state.

• However, as Mr. Salazar testified at this hearing, the combined estimated annual costs for Colorado municipalities and commercial permittees for PGP implementation is over $21 million. Certainly much more than EPA’s estimate.

Permittees across the country—both public sector and private sector—will most 

assuredly face costs that are several orders of magnitude greater than EPA estimates. The PPC believes that the true cost of the PGP could exceed $1 billion in 

the first year if EPA considers all permittees’ costs and permitting authorities in 

all states. This estimate would include the true costs of:

• Studying the nuances of each permit, and identifying the compliance requirements for all states in which a permittee operates;

• Communication with staff, regulators, clients, and others;

• Research to collect data needed to complete the NOIs, PDMPs, etc.;

• Development of the PDMP, and keeping it current;

• Keeping records, filing NOIs, drafting reports and other records;

• Staff recruitment and training for PGP compliance;

• Awareness of, and compliance with, endangered species/habitat protections;

• Equipment upgrades, inspections; calibrations, preventative maintenance;

• IPM considerations, actions, recordkeeping, annual reporting;

• Monitoring, surveillance, compliance assurance;

• Possible adverse incident mitigation, 24 hour/5 day reporting; and

• Business insurance costs, possible legal costs.

EPA estimated 40 hours would be necessary to develop a Pesticide Discharge 

Management Plan (PDMP), and at least 2 hours annually would be needed to update it. We agree that this figure is likely to be close to the average time it would 

take. However, EPA limits this burden for the PDMP to just 12,167 permittees 

(about 3% of the total 365,000 permittees)—those EPA feels would likely exceed the 

annual acreage threshold for submitting an NOI. On this basis, EPA calculates that 

63

the burden for the PDMP alone would be just $25.6 million for PDMP development 

and $1.0 million for PDMP maintenance. If instead, however, 10% of the total 

365,000 permittees have to develop a PDMP (EPA’s estimate of the percentage of 

permittees that will submit NOIs), then the total cost goes up to about $80 million 

just for the PDMP (remember—EPA estimated the entire PGP would cost only $50 

million annually). If 20% of the total permittees have to develop PDMPs, the total 

cost might be become $160 million. 

We believe EPA has overlooked many other important burdens and expenses too, 

for example the cost of:

• Studying the new state permits when they are final in all states where aerial 

applicators may work could easily take 24 hours the first year to accurately determine all legal responsibilities and timelines for compliance (EPA does not include these costs in the ICR).

• Communication with regulators, staff and contractors could take 8 hours annually (EPA does not include these costs in the ICR).

• Doing the research, writing an NOI, and mapping the watercourses could easily 

take 10–12 hours per state. It becomes more time consuming if a custom applicator, for example, has multiple clients and multiple states in which to operate. 

EPA estimates that it will take 2.0 hours the first time, 0.5 hours thereafter 

to do the research needed to write an NOI and submit it to regulators.

• Surveillance monitoring is currently a wild card, for it’s not clear who would 

have to do what monitoring, and under what conditions. Depending on the scope 

of the monitoring, the time required and costs could become extreme. EPA estimated that 0.25 hours would be needed four times per year (1 hour total) for 

large site visual monitoring by all permittees. Further, EPA estimates that zero 

(0) hours would be needed for smaller site visual monitoring by all permittees. 

No estimate was given for costs associated with in-stream analytical monitoring, should that be required. Equipment maintenance, calibration, and other 

required actions could take 50 to 60 hours per year (EPA does not include these 

costs in the ICR).

• Because of the explicit requirement for extensive recordkeeping and documentation of actions, ongoing recordkeeping will likely require 4 to 5 hours per week 

(200 to 250 hours per year), and the hiring of additional staff to complete. Such 

recordkeeping will be absolutely necessary for PGP compliance and a critical 

protection from opportunistic citizen lawsuits. However, EPA estimates that it 

will take only 0.25 hours, four times per year (1 hour total) to do all the recordkeeping of treatment areas and products used in the PGP.

• IPM data collection, decision making, recordkeeping and reporting could take 50 

to 100 hours per year, or more, depending on the industry segment and intensity of pests (EPA does not include these costs in the ICR).

• Annual reporting, especially when there are multiple clients, multiple pests 

treated, and multiple states involved could take 10 or more hours (EPA estimates 2 hours in the ICR).

• Adverse incident response and reporting could take up to 20 hours if an adverse 

incident occurs (EPA estimates 2 hours).

• Custom applicators will find their annual report writing complicated by the 

many products, treatment areas, and varied customers serviced during the year. 

The time for each annual report (one for each state in which the custom applicator operates) would easily require 4 hours or more. EPA estimates that it will 

take 2 hours to write and submit an annual report. 

Unknown Legal Jeopardy Awaits Permittees 

Thousands of pesticide ‘‘operators’’ in the U.S. will soon have to comply with 

NPDES permitting requirements to which they have never before been subjected. 

With the deadline for completion and implementation set by the court less than 2 

months away (and with only about 1⁄2 of the states having proposed draft PGPs), 

it is not unreasonable to expect that more than a few of the resulting permittees 

could soon (after April 9) find themselves either unable to continue to legally apply 

pesticides or be exposed to legal jeopardy from citizen suits or agency enforcement 

for minor paperwork violations that have no actual impact on environmental protection. Currently CWA penalties are $37,500 per day per violation, and EPA’s PGP 

has literally dozens of opportunities for someone to violate the CWA, sometimes 

more than once for the same infraction. This legal jeopardy is significant, and pesticide users and applicators may well have to defend themselves against trivial litigation. 

64

Conclusion 

While an objective of EPA’s PGP is to ‘‘minimize discharges of pesticides,’’ we believe it is truly an unintended consequence of the 6th Circuit decision that many 

cities, state agencies or individual companies may choose to abandon necessary pest 

control. This could hamper ongoing efforts to control invasive pests and reduce 

water quality as a result. Congress must act to clarify that pesticides applied in accordance with FIFRA product labels are not subject to Clean Water Act NPDES permitting requirements. 

We appreciate your interest in this important national issue. Thank you for providing us with this opportunity to present this testimony to you. 

Sincerely,

RODNEY SNYDER, Chair, Pesticide Policy Coalition;

BEAU GREENWOOD, Vice Chair, Pesticide Policy Coalition. 

SUBMITTED STATEMENT OF AMERICAN FARM BUREAU FEDERATION

The American Farm Bureau Federation (AFBF) would like to submit this statement for the record on the joint hearing held Feb. 16, 2011, by the Subcommittee 

on Nutrition and Horticulture, Committee on Agriculture and the Subcommittee on 

Water Resources and Environment, Committee on Transportation and Infrastructure. 

AFBF is the nation’s largest general farm organization, representing farm and 

ranch families in all 50 states and Puerto Rico. Farm Bureau members produce a 

variety of commodities grown or raised commercially in the United States. AFBF 

is a farm advocacy organization that regularly represents its members’ interests before Congress, Federal regulatory agencies and the courts. Many of AFBF’s members use pesticides to produce crops, livestock and poultry, and these producers 

could be directly affected by the proposed Environmental Protection Agency (EPA) 

general permits. 

We believe there is an urgent need for legislation to fix a regulatory quagmire 

for farmers and ranchers—the initiation by EPA of another pesticide application 

permitting process under the Clean Water Act (CWA). Pesticide applications have 

always been effectively regulated under the Federal Insecticide and Rodenticide Act 

(FIFRA)—which is also administered by EPA—and farmers are bound by law to use 

pesticides properly as directed by the product label. Having a duplicative permit 

process to apply a safe and already approved product that will not improve food 

safety or the environment does not make any sense. With EPA’s permit scheme set 

to become effective April 9, 2011, which is only weeks away, Congress needs to take 

action quickly. We all need to work with a sense of urgency to keep overly burdensome, costly and duplicative regulation and potential litigation away from the gates 

of our farms and ranches. 

Since the passage of the CWA in 1972 and major reforms of FIFRA in 1972, EPA 

has never required NPDES permits for the application of pesticides. Unfortunately, 

multiple lawsuits have undercut the policies developed by Congress, and EPA is 

now developing an NPDES permitting system for pesticides. These new general permits will double the permittees under the NPDES program and result in regulatory 

and administrative burdens that will reach well beyond just developing and issuing 

the permits. NPDES pesticide permits will affect state agencies, city and county municipalities, parks and recreation managers, utility rights-of-way managers, railroads, roads and highway vegetation managers, mosquito control districts, water 

districts and managers of canals and other water conveyances, pesticide applicators, 

farmers, ranchers, forest managers, scientists and many, many others. 

EPA has yet to finalize its NPDES general permit. Once it does, EPA and the 

states will then need to fund duplicative programs and personnel for technical and 

compliance assistance, monitoring and enforcement programs. The cost of this permit program will be a significant financial drain on Federal, state and local coffers. 

The costs associated with this dueling regulatory system are a tragedy, because 

state regulatory agencies have openly stated that the sensible and responsible approach is to maintain regulation of pesticides under FIFRA. They have also stated 


11203181 11203182
65

that they anticipate that no meaningful water quality improvement would be gained 

through permitting this new group of sources. In other words, this appears to be 

government at its worst—regulation for its own sake, resulting in duplication and 

expense that result in all cost and no benefit. 

The permit being developed by EPA will add performance, recordkeeping and reporting requirements to an estimated 5.6 million pesticide applications per year and 

preempt the science-based ecological review of pesticides and label requirements for 

uses regulated under FIFRA. Never in the 62 years of FIFRA or 38 years of the 

CWA has the Federal Government required a permit to apply pesticides for the control of such pests as mosquitoes, forest canopy insects, algae, or invasive aquatic 

weeds and animals, like Zebra mussel. Again, Congress omitted pesticides in 1972 

when it enacted the CWA NPDES program, and despite major rewrites since, never 

looked beyond FIFRA for the regulation of pesticides. 

The Problems 

The problems associated with a new permit system are numerous. The added public and private sector cost will be significant. Given tight budgets, the cumulative 

impact of this resource drain will be to force states to reallocate limited resources 

from other important activities to this new permit program. The new permit program will not be just a paper exercise, it will require monitoring and surveillance, 

planning, recordkeeping, reporting and other tasks. This will lead to significant 

delays, costs, reporting burdens and legal risks from citizen suits for hundreds of 

thousands of newly-minted permit holders, without enhancing the environmental 

protections provided by FIFRA compliance. To date, EPA’s proposed general permit 

only covers applications of pesticides registered for aquatic use and applied to water 

or forest canopies over flowing or seasonal waters. It would not cover pesticide applications registered and intended for terrestrial use. However, there are some who believe most pesticide applications should require a permit if there is even a chance 

that the pesticide could come in contact with any water. So, even though EPA may 

not currently cover farm applications, nothing in the CWA or the proposed permit 

protects against citizen suits against farmers for not obtaining a permit. 

The new permit will be directly enforced by EPA in Alaska, Massachusetts, New 

Jersey, New Mexico, Idaho, Oklahoma, on Indian and Federal lands and in most territories. The remaining states must adopt the Federal model or develop their own 

NPDES permitting program pursuant to their CWA delegated authority from EPA. 

EPA and many states will not meet the court’s deadline of April 9 for implementation of these permits, nor will permittees nationwide have time to fully understand 

or come into compliance with the permits. 

These permits will have broad and severe impacts. Without adding any additional 

environmental benefits, the NPDES permits’ complex compliance requirements will 

impose crippling economic burdens on thousands of small businesses, communities, 

counties and state and Federal agencies legally responsible for pest control; expose 

them to legal jeopardy through citizen suits over paperwork violations; and cost jobs 

across America as permittees of all kinds lose in their attempts to comply with, or 

implement, these permits. 

Legislative action is needed now. Following the 6th Circuit Court of Appeals’ decision, various interests petitioned the court for an en banc review, which was denied. 

Subsequently, two separate cert petitions were submitted to the U.S. Supreme Court 

for review of the 6th Circuit decision, supported by various amicus briefs, including 

a bipartisan amicus brief submitted by 40 members of the House and Senate. But 

the Court declined to hear the case. Because there is no possibility of a legal remedy, we ask Congress for a legislative solution that will permanently remove the 

looming specter of NPDES permits for pesticide applications. What is needed is 

nothing more or less than what has been EPA’s interpretation of the law since 

1972—that pesticides applied into, over or near waters of the U.S. are not subject 

to NPDES permits. 

Our economy is struggling to recover from a recession. This permit proposal will 

impact all levels of government and the agriculture industry by creating unnecessary costs and additional mountains of red tape, and jeopardizing our businesses 

with citizen suits. We believe there will be no additional environmental benefits resulting from a new permit, nor do we foresee any environmental harm from continuing what has been the policy for nearly 4 decades. 

We ask Congress to take action before the permits become final. Time is of the 

essence for to address this looming regulatory threat. We are ready to help you in 

this effort in any way we can. 

66

SUBMITTED STATEMENT OF CHEMICAL PRODUCERS & DISTRIBUTORS ASSOCIATION

Mr. Chairmen and Members of the Committees:

On behalf of the membership of the Chemical Producers & Distributors Association (CPDA), we submit this testimony for the record. 

CPDA is the primary advocate on Federal legislative and regulatory issues for generic pesticide registrants, adjuvant and inert ingredient manufacturers, and product formulators and distributors. With over 600 facilities nationwide, we represent 

over $7 billion worth of pest control products used on food, feed, and fiber crops and 

in non-crop segments of the pesticide industry. 

On January 18, 2011, President Barak Obama wrote in The Wall Street Journal

that he was initiating a ‘‘government-wide review of the rules on the books to remove outdated regulations that stifle job creation and make our economy less competitive.’’ The President also noted that ‘‘sometimes, those rules have gotten out of 

balance, placing unreasonable burdens on businesses—burdens that have stifled innovation and have a chilling effect on growth and jobs.’’

Today, Congress has before it the opportunity to join together in bipartisan effort 

to eliminate a regulation that meets the President’s rationale for repeal. The Environmental Protection Agency (EPA) regulation that requires a general permit under 

the National Pollution Discharge Elimination System (NPDES) for certain pesticide 

applications is one that reasonable people should agree is duplicative, costly, burdensome, and ultimately unnecessary. By amending the Clean Water Act (CWA) to 

specifically exempt EPA-registered pesticide products, Congress will make government more efficient while ensuring human health and the environment are protected and at the same time, protect jobs. 

It deserves to be noted that the rulemaking is the result of the January 2009 6th 

Circuit Court of Appeals National Cotton Council v. EPA ruling that biological pesticides and residues left in water from products regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are a pollutant and should be regulated under the Clean Water Act’s (CWA) National Pollutant Discharge Elimination 

System (NPDES). In nearly 40 years of administering the CWA, EPA had never required an NPDES permit for the application of a pesticide, when the pesticide is 

applied in a manner consistent with FIFRA and its regulations. 

It is also important to note that EPA is being required to promulgate this rule 

because of a judicial interpretation of the Clean Water Act and not because of a lack 

of Federal regulation of pesticides. FIFRA processes are designed to protect both 

human health and the environment. To be approved a pesticide product must go 

through rigorous testing and review, often taking years, to determine appropriate 

uses and application rates, and to ensure that it does not pose an unacceptable risk 

to human health or the environment. The Office of Pesticide Programs (OPP) determines, during the product application process in accordance with FIFRA, the chemical’s allowable application rate and writes a label for its use. The label is the regulation of that product and it instructs the applicators of the proper use of the chemical. It is a violation of Federal law to use a chemical in a manner that is inconsistent with its label instructions. 

Congress omitted pesticides in 1972 when it enacted the CWA NPDES program, 

and despite major rewrites since, never looked beyond FIFRA for the regulation of 

pesticides. By amending the CWA now to formally exempt FIFRA-regulated products, Congress will be reaffirming what it intended in 1972 and has worked effectively for nearly 40 years. 

Additionally, the proposed rule is not expected to provide any substantive benefit 

to the environment. As a matter of fact in the proposed rule EPA stated:

‘‘The requirements of a PDMP [Pesticide Discharge Management Plan] is not 

an effluent limitation because it does not restrict quantities, rates, and concentrations of constituents that are discharged.’’

In plain language this means that EPA wisely recognized that the agency does 

not plan to direct how, when, where and how much of a pesticide can be used 

through this permit process, as this is not the function of a permit. The rule is expected to cover 5.6 million pesticide applications per year by approximately 350,000 

applicators. Although the EPA proposed permit indicated a potential reduction in 

use of pesticides, this would come from using the minimum effective amount of pesticide and keeping application equipment in good repair, practices that are already 

in place by applicators and product users. Unfortunately, reiterating these ‘best 

practices’ in the permit process only guarantees burdensome reporting and recordkeeping requirements. 

Not only is there negligible environmental benefit, if any, but the rule will also 

be costly and burdensome to the states and permitees. In the proposed rule outVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00072 Fmt 6621 Sfmt 6621 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
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1 Responsible Industry for a Sound Environment (RISE)—www.pestfacts.org.

lining the permit plan, EPA concluded the permit will add performance, recordkeeping and reporting requirements to 5.6 million pesticide applications per year. 

EPA estimates the potential number of permit applicants at 365,000 and estimates 

the annual time burden to be 1,033,713 hours for permitees, and 45,809 hours for 

the 45 ‘delegated’ permit authorities in the states: EPA will directly implement the 

remaining non-delegated state and territorial programs. Annual costs for program are estimated at $50.1 million for applicants and $1.7 million for delegated authorities. 

Many pesticide users and state regulators, upon review of the EPA methodology, 

believe that these high numbers actually drastically underestimate the time and 

money it will take permitees, states and EPA to fully implement and comply with 

the permit program. Some commenters on the proposal believe EPA underestimated 

costs by a factor of five, while others believe the total cost across all sectors of permit applicants to be over $1 billion. 

The EPA’s estimate of the annual time burden, put in perspective, is equal to 114 

man-years of effort for no negligible benefit. We believe the record-keeping burden 

will be closer to 4 to 5 hours a week, or 200–250 hours annually, and not the 15 

minutes four times per year—an annual total of just 1 hour—predicted by EPA. 

Permitees will have to keep extensive records to prevent frivolous citizen lawsuits 

from bankrupting their business merely over a paperwork issue. Congress needs to 

address this situation immediately to prevent this incredible waste of time and 

money from becoming a reality. 

Added to these costs are potential Endangered Species Act (ESA) requirements, 

as EPA filed the proposed rule with a placeholder for incorporating Section 7 consultation results. Recent history suggests that potentially burdensome prohibitions 

are likely to find their way into the permitting scheme, either from activist environmental lawsuits, or from other Federal or state agency determinations. While there 

is no way to know how much of an additional cost burden the ESA placeholder 

might represent, it is very likely to be significant. CWA violations are punishable with fines of up to $37,500 per day per violation, 

not including attorney’s fees. Since these fines can stack up, the final toll can very 

easily bankrupt a business. The permits’ complex compliance requirements will impose tremendous new burden on thousands of businesses, communities, counties, 

and state and Federal agencies legally responsible for pest control, exposing them 

to legal jeopardy through citizen suits over paperwork violations. Ultimately, the 

permit could jeopardize jobs, the economy and threaten human health and environmental protection across America as regulators and permitees grapple to implement 

and comply with the permit process. 

In review, for 38 years the CWA and FIFRA have worked in unison, protecting 

human health and the environment. Now, due to a reinterpretation of the CWA, 

EPA is about to promulgate a costly and likely job-killing permitting scheme that 

will produce negligible environmental benefit. Clearly this regulation meets the high 

standard set by the President for repeal: one of high cost, as estimated by the agency and impacted parties, but negligible environmental benefit, as stated in the proposed regulation. Congress should quickly pass legislation that nullifies the need for 

permitting by exempting FIFRA approved products from the CWA. 

Thank you. 

SUBMITTED STATEMENT OF CROPLIFE AMERICA

CropLife America is the leading trade association representing the U.S. crop protection industry and our members supply virtually all of the crop protection products used by American farmers. CropLife America’s member companies, and members of our counterpart association at RISE,1 proudly discover, manufacture, register and distribute crop protection products for American agriculture, and specialty 

use products such as those used to protect natural resources, public health and safety. 

CropLife members work with farmers, ranchers and growers everyday to ensure 

that crop protection tools are registered properly and used correctly. As a matter 

of fact, America’s abundant, affordable food supply depends on the availability of 

safe, effective crop protection products. Significant portions of the $100 billion in US 

farm exports each year are made possible by the benefits of crop protection products. CropLife America members support modern agriculture by looking forward: 

each year the crop protection industry spends hundreds of millions of dollars on research and development, with much of that investment going into environmental 

68

and safety studies that produce data that meets or exceeds the Environmental Protection Agency’s (EPA) information requirements for pesticide registration, reregistration and other needs. 

CropLife America has a long history of working cooperatively with EPA and the 

U.S. Congress on issues affecting crop protection, natural resource protection, 

human health and water quality protection. In that spirit, we share the Committees’ 

concerns about the looming prospect of permitting aquatic pesticide applications 

under the Clean Water Act (CWA). The use of aquatic pesticides is vital to the protection of public health and the environment because these products help Federal, 

state and local governments control pests such as mosquitoes, forest insects like the 

gypsy moth and pine bark beetle, algae, and invasive aquatic weeds and animals, 

like Zebra mussels. 

Never in the 62 years of the Federal Insecticide, Fungicide, and Rodenticide Act 

(FIFRA), nor 38 years of the CWA, has the Federal Government required a permit 

to apply pesticides ‘‘to, over or near’’ waters of the U.S. In fact, Congress specifically 

omitted pesticides in 1972 when it enacted the CWA, and despite major rewrites 

since, never looked beyond FIFRA for the regulation of the regular, label-approved 

uses of pesticides. EPA codified decades of Federal policy with its 2006 rule exempting aquatic pesticide applications from the CWA National Pollutant Discharge 

Elimination System (NPDES) permitting system when used in accordance with the 

FIFRA product labels. 

Nonetheless, last year, the U.S. 6th Circuit Court of Appeals overturned EPA’s 

2006 rule, determining that NPDES permits are needed for the legal application of 

such pesticide products. Agriculture and the rest of the pesticide user community 

are still baffled by the Federal Government’s choice not to more rigorously defend 

its 2006 rule. Especially since the government, in a brief to the Solicitor General, 

stated that the 6th Circuit got it wrong in National Cotton Council v. EPA, and, 

went so far as to suggest that the circuit court violated earlier Supreme Court 

precedent by failing to provide proper due deference to an agency determination. 

CropLife America believes the 6th Circuit got it wrong. The court agreed that pesticides when applied consistent with FIFRA label directions are not pollutants, and, 

as such, should not require NPDES permits. But, the court went on to rule that any 

residues that may remain after the beneficial use has been completed are pollutants, and, in order to control those residues, NPDES permits are necessary when 

the pesticides are initially applied. We believe that the court incorrectly reversed 

EPA’s long-standing policy thus layering CWA regulations on top of established, rigorous FIFRA requirements. 

We understand that EPA now hopes to finalize its NPDES general permit for certain pesticide uses next month, in March 2011, just a few weeks before the court 

imposed deadline of April 9, 2011. At that time, EPA and the states would then 

begin implementing and enforcing the permit. Permittees across the country would 

have little time to study and comply with the 45 new EPA and state permits, assuming they were fully implemented by April 9. We have heard from state regulators that they need more time to complete their permits, and we share the states’ 

skepticism that the final permit from EPA can be ready in time for state to implement and enforce. We have also heard that Endangered Species Act (ESA) ‘consultation’ on the permit with authorities in the U.S. Departments of Commerce and Interior is expected to extend beyond its goal for completion of February 25, 2011. All 

these complications and missed deadlines leave little hope that states and pesticide 

users subject to the permit will have program in place in time to meet the court 

deadline less than 2 months away. 

The permit will add performance, recordkeeping and reporting requirements to 

millions of pesticide applications per year, and preempt the science-based ecological 

review of pesticides and label requirements for uses regulated under the FIFRA. 

And, this one decision overnight will nearly double the population of entities requiring permits under CWA and the burdens state regulators must bear to implement 

the permits. In addition, overnight the financial burdens will dramatically increase 

for state agencies, local municipalities, recreation, utility rights-of-way, railroads, 

roads and highways, mosquito control districts, water districts, canals and other 

water conveyances, commercial applicators, farm, ranches, forestry, scientists, and 

many, many others. This is an enormous burden—and no one is suggesting any related benefit to protection of humans or the environment. 

The permit will threaten their economic survival of applicators nationwide, either 

due to the cost of obtaining a permit or due to their vulnerability to citizen law suits 

under CWA. New requirements for monitoring and surveillance, planning, recordkeeping, reporting and other tasks will create significant delays, costs, reporting 

burdens and legal risks from citizen suits for hundreds of thousands of newly-mintVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00074 Fmt 6621 Sfmt 6621 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
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ed permit holders without enhancing the environmental protections already provided by FIFRA compliance. 

To date, EPA’s proposed general permit only covers applications of pesticides registered for aquatic use and applied to water or forest canopies into or over flowing 

or seasonal waters, and conveyances to those waters; it would not cover pesticide 

applications registered and intended for terrestrial use. However, activists indicate 

that they believe most pesticide applications should require a permit if there is even 

a chance that the pesticide could come in contact with any ‘‘water,’’ either flowing 

water or seasonal drainage ditches that could be a conveyance to a water of the U.S. 

So, even though EPA may not currently cover farmland and rangeland pesticide applications, nothing in the CWA or the proposed permit protects against citizen suits 

against farmers for not obtaining a permit. This establishes an uncertain, increased 

level of liability for farmers and ranchers, as well as users applying pesticides to 

golf courses and public utility rights of way, and private homes and businesses. 

CropLife is grateful that so many Members of the Committees understand the serious nature of the 6th Circuit’s ruling and EPA subsequent actions. We urge to introduction legislation that would amend the Clean Water Act to clarify that NPDES 

permits are not required for the applications of pesticides in compliance with 

FIFRA. Along with so many other stakeholders, we believe that legislation is the 

best way to relieve users and regulators of this tremendous duplicative burden, as 

well provide instruction EPA and the courts that Congress did not intend other environmental laws to overtake FIFRA. 

SUPPLEMENTAL MATERIAL SUBMITTED BY CROPLIFE AMERICA

Thank you for the opportunity to provide you with our response to the statement 

provided to the record of this hearing by Robert Gilliom, hydrologist with the U.S. 

Geological Survey (USGS), who provided an overview of the National Water Quality 

Assessment Program (NAWQA) and other studies of pesticides in surface- and 

ground-water. This statement is provided for the record in connection with the February 16, 2011 joint hearing of the Committee on Agriculture—Subcommittee on 

Nutrition and Horticulture, and Committee on Transportation and Infrastructure—

Subcommittee on Water Resources and the Environment. 

CropLife America (CLA) is an association that represents the companies that develop, manufacture, formulate and distribute crop protection chemicals and plant 

science solutions for agriculture and pest management in the United States. CLA’s 

member companies extensively test, produce, sell and distribute virtually all of the 

crop protection products used by American farmers. Customers of CLA member companies, and those of our sister organization, RISE (Responsible Industry for a Sound 

Environment)®, include farmers, ranchers, government agencies and entities such 

as mosquito- and aquatic weed-control districts, forest managers, agribusiness dealers, custom applicators, and scientists engaged in agricultural research. 

Scientists at CLA and its member companies followed NAWQA closely, and for 

many years our representative served on an advisory panel that NAWQA organized. 

In that role, we reviewed data, met with officials at USGS, reviewed draft NAWQA 

documents prior to publication, and offered recommendations and comments to 

NAWQA representatives. Overall, we found the studies conducted by USGS to be 

valuable, adding considerable information to the monitoring conducted by states and 

watershed organizations. From time to time during this period we provided input, 

primarily to urge USGS officials to clearly interpret the statistical significance of 

their findings and not extrapolate beyond conclusions directly supported by their 

empirical data and science. Dr. Gilliom’s statement to this joint hearing provides a 

brief overview of NAWQA’s findings. We offer the following additional observations 

regarding his statement for the Joint Subcommittee Hearing and the 2006 report 

‘‘The Quality of Our Nation’s Waters—Pesticides in the Nation’s Streams and 

Ground Water, 1992–2001.’’ 

Comments on NAWQA and Response to Dr. Gilliom’s Statement to the 

Subcommittees:

1. Detection Levels: Dr. Gilliom stated, ‘‘At least one pesticide was detected 

generally below levels of concern in waters from all streams studies, and pesticide compounds were detected throughout most of the year in water from 

streams with agricultural . . . land-use watersheds.’’ This was likely an expected result, for ‘‘USGS analytical methods were designed to measure concentrations as low as economically and technically feasible. By this approach . . . pesticides were commonly detected at concentrations far below Federal or state standards and guidelines for protecting water quality. Detections of 

pesticides do not necessarily indicate that there are appreciable risks to human 

70

health, aquatic life, or wildlife.’’(2006 Report, p. 33). Pesticides provide important social benefits and, with almost a billion acres of total farmland and more 

than 300 million acres of harvested cropland in the U.S. (USDA Economic Research Service, http://www.ers.usda.gov/statefacts/us.htm), the detection of extremely low levels of pesticide products in selected watercourses is not remarkable. Pesticide best management practices (BMPs) coupled with land conservation measures continues to be an important deterrent to off-target movement.

2. Focus of Water Analyses: Dr. Gilliom stated, ‘‘Most water samples were 

analyzed for 75 pesticides and 8 degradates [pesticide breakdown products], including 20 of the 25 most heavily used herbicides and 16 of the 25 most heavily 

used insecticides . . . most of the more than 400 registered active ingredients 

were not analyzed.’’ It is unlikely that the addition of analyses for any of the 

other registered products would have enhanced the determinations of the 

NAWQA study, for most of the 75 products actually studied were found at either nondetection levels (ND) or very infrequently (see attached USGS statistical summary of NAWQA detections in water from agricultural streams, 1992–

2001).

3. Single Year’s Analysis: Entitled as a 10 year study of the nation’s water 

quality, the 2006 NAWQA report states that ‘‘most data analyses for stream 

water [quality] are based on the single year of most intensive sampling’’ (p. 2). 

However, that ‘‘single year’’ was not the same study period throughout, but varied widely across the many sites monitored and the number of samples collected. Sampling followed a rotational schedule over the 10 year period (20 of 

the 51 watershed Study Units sampled during 1992–1995, 16 during 1996–

1998, and 15 during 1998–2001), and the data collected were undoubtedly affected by periods of widely differing seasonal weather patterns and stream flow 

rates, different sampling periods and intensities, changes over time in performance of the analytical method and changes in data-reporting practices, as well 

as changes over time and seasons in farming practices, crop rotations, and pesticide use. This bias and how USGS overcame it to produce ‘‘agricultural’’ detection trends are important considerations.

4. Oversampling of Targeted Agricultural Sampling Sites: Detections of 

pesticides from ‘‘agricultural areas’’ are a key focus of the NAWQA 2006 report, 

in which monitoring results are presented from 1992 to 2001 at major agricultural stream and river sites in 51 Study Units representing ‘‘a wide range of 

hydrologic and environmental settings across the Nation’’ (p. 33). We understand 

from the 2006 report that the agricultural watershed land-use criteria for 

NAWQA selection were that the sites had greater than 50 percent agricultural 

land use and less than or equal to five percent urban land use (p. 32). With 

more than 300 million acres of harvested cropland (USDA Economic Research 

Service), there are likely many such agricultural sites in the U.S. However, the 

2006 report’s map of NAWQA agricultural watershed sampling sites (p. 37) suggests that the 83 agricultural watersheds and basins selected may have had the 

additional selection criterion of providing the greatest likelihood of pesticide detections, which could have had the effect of biasing the total percentage of ‘‘agricultural detections’’ in the study. Monitoring sites selected were often closely 

bunched within discrete regions of targeted states while many other agricultural regions and states were either completely or largely ignored:

• For example, no samples were taken at all from more than a dozen states.

• The map (p. 37) suggests that samples were taken from only one site each 

in New York, Idaho, Arkansas, Missouri, and Mississippi; from only two sites 

in all of Oregon, both near each other in the Willamette Valley; from only two 

sites in all of Florida, both located in the same southern part of the state; 

from only two sites in all of Wisconsin, near each other in the eastern part 

of the state; from only three sites in all of Nebraska, near each other along 

the Platte River; from three sites in the same part of California’s San Joaquin 

Valley (plus one site farther north in the Central Valley); and from three sites 

in the same part of southeastern Texas (plus one site farther north in the 

same Brazos River basin), but no where else in the state.

• However, certain agricultural regions appear to have been oversampled. For 

example, eight sites in eastern Iowa were sampled. Seven sites in southern 

Indiana were sampled. Five sites in Washington State’s agricultural Palouse/

Yakima region were sampled. It would be appropriate to describe how such 

sampling was intended to represent a ‘‘nationwide’’ view of agricultural impacts, and how such selection bias was removed when interpreting pesticide 

detections.

71

5. Potential Effects on Human Health: Dr. Gilliom explained that the 

NAWQA assessment of potential effects on human health was based on comparing measured concentrations to available U.S. Environmental Protection 

Agency drinking water standards and fish consumption guidelines. He reported, 

‘‘Most detections of pesticides were at low levels compared to human-health 

benchmarks. Annual mean concentrations of one or more pesticides exceeded a 

human-health benchmark in 8 of 83 agricultural streams and in 2 of 30 urban 

streams.’’ He added, ‘‘About 7 percent of the nation’s stream miles are predicted 

[using USGS’ models] to have a 5 percent or greater chance of exceeding the 

drinking-water standard.’’ However, all of the samples are of raw water, and 

none was taken from public drinking water systems (water treated by municipal 

systems to remove contaminants).

6. Potential Effects of Multiple-Pesticide Detections: The assessment of 

the risks associated with the detection of so-called ‘‘mixtures’’ is another area 

of discussion within the NAWQA report and Dr. Gilliom’s statement. As USGS 

acknowledges, available data on the co-occurrence of multiple chemicals is 

sparse, and is not sufficient to draw valid science-based conclusions regarding 

potential exposures. Whenever products are designed to be used in the field as 

mixtures and this is specifically stated on the pesticide label, registration will 

not be granted until EPA’s concern for application rates and/or the allowed mixtures are addressed. With respect to hypotheses concerning the possibility of 

synergistic, antagonistic or additive effects of multiple pesticide residues detected in water, EPA has determined that there is currently no valid and accepted method for determining any such risks; nor is there data showing that 

there is reason to believe that such effects would make any significant difference in the risks that EPA calculates. Best available data suggest that synergism, antagonism and potentiation do not occur at expected environmental concentrations of pesticides.

7. Declining Levels of Agricultural Detections: The NAWQA study was initiated almost 20 years ago, and many of the product detections declined 

throughout the study because of forces such as changes in agricultural management practices, advances in science, market forces, and regulations. Dr. Gilliom 

recognized this in his statement for the hearing. He described a 2009 USGS report, ‘‘Pesticide Levels Decline in Corn Belt Rivers,’’ which referenced lower detections from 1996 to 2006 (http://pubs.usgs.gov/sir/2009/5132/), but concluded that, overall, use is the most dominant factor driving changes in detected 

concentrations in sampled water. We believe that pesticide BMPs can be just 

as important, and reference the statement of Dr. Sullivan, lead author of the 

2009 report, in which the reported concentration downtrends for several important Corn Belt pesticides from 1996 to 2006 ‘‘indicat[e] the possibility that agricultural management practices may have increasingly reduced transport to 

streams . . .’’ CLA and its member companies are committed to product stewardship through sponsorship of educational programs and research.

This statement provides a brief response to Dr. Gilliom’s overview of USGS research on pesticides in streams. We welcome the opportunity to provide any further 

information or assistance.

72

ATTACHMENT

Table 7A–1. Statistical summary of pesticide compounds in water from agricultural streams, 1992–2001

[μg/L, microgram per liter; NWIS parameter code, the number used to identify a pesticide in the U.S. Geological Survey National Water Information System; LT–

MDL, long-term method detection level; >=, greater than or equal to; GCMS, gas chromatograph/mass spectrometry; HPLC, high performance liquid chromatography; ND, not detected—concentration is less than the maximum LT–MDL and is expected to be less than any higher percentile concentration shown in the table for that pesticide; —, detection frequency not calculated.] 

Agricultural land use Frequency of detection (percent) Percentiles of concentration (μg/L) 

Analytical 

method 

Detection

category 

Pesticide

compound 

Maximum 

LT–MDL, 

1992–

2002 (μg/

L) 

Number of 

streamwater sites 

Number 

of 

streamwater 

samples 

All >=0.01 μg/L >=0.1 μg/L >=1 μg/L 50th 75th 90th 95th Maximum 

GCMS *** Acetochlor 0.003 54 1,113 29.87 21.95 5.86 1.65 ND 0.008 0.045 0.130 10.600GCMS *** Alachlor 0.002 83 1,996 40.07 26.72 5.68 1.14 ND 0.011 0.040 0.110 6.700GCMS   Atrazine 0.004 83 2,009 89.93 82.13 43.37 8.74 0.073 0.210 0.800 2.400 201.000GCMS **  Azinphos-methyl 0.020 83 1,961 2.35 * >=2.23 0.59 0.00 ND ND ND ND 0.540GCMS Benfluralin 0.005 83 2,014 0.82 0.00 0.00 0.00 ND ND ND ND 0.007GCMS Butylate 0.001 83 1,998 3.72 1.92 0.39 0.06 ND ND ND ND 1.400GCMS ** Carbaryl 0.021 83 2,006 10.05 * >=5.90 0.82 0.06 ND ND 0.002 0.013 4.780GCMS ** Carbofuran 0.010 83 2,003 10.37 9.00 2.75 0.37 ND ND 0.004 0.044 7.000GCMS ** Chlorpyrifos 0.003 83 1,980 11.55 5.29 0.25 0.00 ND ND 0.004 0.010 0.220GCMS *** Cyanazine 0.009 83 1,994 44.02 38.87 12.22 2.81 ND 0.030 0.140 0.430 160.000GCMS ** Dacthal 0.002 83 2,008 12.67 3.28 0.98 0.26 ND ND 0.001 0.005 40.000GCMS p,p′-DDE 0.001 83 2,013 5.75 0.29 0.00 0.00 ND ND ND 0.002 0.062GCMS   Deethylatrazine 0.003 83 2,000 79.36 60.06 11.84 0.24 0.016 0.050 0.128 0.216 3.030GCMS **  Diazinon 0.003 83 1,990 13.34 6.38 0.84 0.03 ND ND 0.005 0.014 3.800GCMS Dieldrin 0.002 83 2,002 3.61 1.81 0.00 0.00 ND ND ND ND 0.064GCMS 2,6-Diethylaniline 0.003 83 2,005 2.39 0.07 0.00 0.00 ND ND ND ND 0.018GCMS Disulfoton 0.011 83 2,013 0.40 * >=0.31 0.08 0.02 ND ND ND ND 3.340GCMS ** EPTC 0.001 83 1,995 15.70 8.20 1.58 0.32 ND ND 0.007 0.020 7.300GCMS Ethalfluralin 0.005 83 2,006 1.49 1.18 0.07 0.00 ND ND ND ND 0.130GCMS Ethoprop 0.002 83 1,996 2.90 1.86 0.25 0.00 ND ND ND ND 0.455GCMS Fonofos 0.001 83 2,004 3.85 2.18 0.24 0.02 ND ND ND ND 1.200GCMS alpha-HCH 0.002 83 2,001 0.35 0.17 0.00 0.00 ND ND ND ND 0.069GCMS gamma-HCH 0.002 83 2,001 1.02 0.63 0.00 0.00 ND ND ND ND 0.053GCMS Linuron 0.018 83 2,005 2.45 * >=1.93 0.53 0.01 ND ND ND ND 1.400GCMS Malathion 0.014 83 2,013 5.50 * >=3.80 0.26 0.00 ND ND ND 0.004 0.523GCMS **** Metolachlor 0.006 83 2,007 81.72 67.27 29.32 5.97 0.029 0.130 0.490 1.200 77.600GCMS ** Metribuzin 0.003 83 1,986 17.18 12.38 2.24 0.44 ND ND 0.013 0.037 6.610GCMS ** Molinate 0.001 83 1,997 10.89 8.81 4.57 1.93 ND ND 0.005 0.077 200.000GCMS Napropamide 0.003 83 1,994 4.19 3.27 0.48 0.00 ND ND ND ND 0.767GCMS Parathion 0.005 83 2,001 0.05 0.05 0.03 0.00 ND ND ND ND 0.141GCMS Parathion-methyl 0.003 83 1,997 0.93 0.88 0.18 0.00 ND ND ND ND 0.422GCMS Pebulate 0.002 83 2,001 1.16 0.59 0.12 0.00 ND ND ND ND 0.240GCMS Pendimethalin 0.011 83 2,000 6.14 * >=5.03 0.89 0.05 ND ND ND 0.010 2.050GCMS cis-Permethrin 0.003 83 2,003 0.18 0.18 0.00 0.00 ND ND ND ND 0.019GCMS Phorate 0.006 83 2,003 0.08 0.08 0.01 0.00 ND ND ND ND 0.600

73

GCMS *** Prometon 0.007 83 2,007 43.65 24.76 0.76 0.00 ND 0.010 0.020 0.035 0.250GCMS Pronamide 0.002 83 2,004 2.46 1.54 0.23 0.00 ND ND ND ND 0.275GCMS Propachlor 0.005 83 2,003 2.16 0.78 0.14 0.00 ND ND ND ND 0.511GCMS Propanil 0.005 83 2,006 1.47 0.93 0.35 0.02 ND ND ND ND 2.050GCMS Propargite 0.011 83 1,991 3.06 * >=1.94 0.82 0.21 ND ND ND ND 20.000GCMS **** Simazine 0.006 83 2,009 58.16 42.23 7.46 1.07 0.006 0.024 0.074 0.175 5.760GCMS ** Tebuthiuron 0.008 83 1,983 21.17 11.89 2.52 0.18 ND ND 0.013 0.034 6.330GCMS Terbacil 0.017 83 1,997 2.80 * >=2.26 0.17 0.00 ND ND ND ND 0.540GCMS Terbufos 0.009 83 2,004 0.05 0.05 0.02 0.00 ND ND ND ND 0.560GCMS Thiobencarb 0.002 83 1,994 4.21 3.20 1.03 0.22 ND ND ND ND 4.380GCMS Triallate 0.001 83 2,014 3.84 1.55 0.15 0.00 ND ND ND ND 0.650GCMS ** Trifluralin 0.005 83 2,005 12.93 4.22 0.15 0.00 ND ND 0.004 0.008 0.168HPLC Acifluorfen 0.040 62 1,466 3.67

— 1.82 0.08 ND ND ND ND 1.100

HPLC Aldicarb 0.100 62 1,470 0.13

— 0.13 0.00 ND ND ND ND 0.510

HPLC Aldicarb sulfone 0.100 62 1,469 0.00

— 0.00 0.00 ND ND ND ND ND 

HPLC Aldicarb sulfoxide 0.140 62 1,470 0.13 — * >=0.13 0.05 ND ND ND ND 1.910HPLC ** Bentazon 0.030 62 1,466 16.55

— 7.40 1.14 ND ND 0.070 0.140 8.600

HPLC Bromacil 0.040 62 1,470 1.68

— 1.43 0.03 ND ND ND ND 1.900

HPLC Bromoxynil 0.030 62 1,466 0.66

— 0.27 0.00 ND ND ND ND 0.770

HPLC Chloramben methyl ester 0.110 62 1,470 0.00 — * >=0.00 0.00 ND ND ND ND ND HPLC Chlorothalonil 0.070 62 1,462 0.03

— 0.00 0.00 ND ND ND ND 0.290

HPLC Clopyralid 0.210 62 1,465 0.00 — * >=0.00 0.00 ND ND ND ND ND HPLC ** 2,4-D 0.080 62 1,465 13.08 — 10.59 1.28 ND ND 0.110 0.270 15.000HPLC Dacthal monoacid 0.040 62 1,466 0.18

— 0.11 0.00 ND ND ND ND 0.430

HPLC 2,4-DB 0.130 62 1,466 0.06 — * >=0.02 0.00 ND ND ND ND 0.130HPLC Dicamba 0.050 62 1,466 1.39

— 0.87 0.08 ND ND ND ND 1.140

HPLC Dichlobenil 0.050 62 1,470 0.32

— 0.00 0.00 ND ND ND ND 0.010

HPLC Dichlorprop 0.060 62 1,466 0.42

— 0.27 0.00 ND ND ND ND 0.260

HPLC Dinoseb 0.040 62 1,466 0.27

— 0.11 0.07 ND ND ND ND 1.000

HPLC ** Diuron 0.060 62 1,469 12.90

— 7.23 1.37 ND ND 0.040 0.250 14.000

HPLC DNOC 0.130 62 1,466 0.09 — * >=0.09 0.00 ND ND ND ND 0.190HPLC Fenuron 0.030 62 1,470 0.12

— 0.05 0.00 ND ND ND ND 0.100

HPLC Fluometuron 0.030 62 1,470 6.04

— 4.34 0.98 ND ND ND 0.060 8.600

HPLC 3-

Hydroxycarbofuran 0.050 62 1,470 0.00 — 0.00 0.00 ND ND ND ND ND 

HPLC MCPA 0.100 62 1,466 1.41

— 1.17 0.00 ND ND ND ND 0.940

HPLC MCPB 0.130 62 1,465 0.00 — * >=0.00 0.00 ND ND ND ND ND HPLC Methiocarb 0.030 62 1,469 0.08

— 0.08 0.00 ND ND ND ND 0.100

HPLC Methomyl 0.240 62 1,469 1.41 — * >=1.17 0.04 ND ND ND ND 1.000HPLC Neburon 0.030 62 1,470 0.07

— 0.00 0.00 ND ND ND ND 0.030

HPLC Norflurazon 0.021 62 1,468 4.15

— 3.27 0.03 ND ND ND ND 1.240

HPLC Oryzalin 0.140 62 1,470 0.49 — * >=0.26 0.11 ND ND ND ND 1.800HPLC Oxamyl 0.080 62 1,469 0.57

— 0.30 0.00 ND ND ND ND 0.160

HPLC Picloram 0.040 62 1,465 0.00

— 0.00 0.00 ND ND ND ND ND 

HPLC Propham 0.110 62 1,470 0.03 — * >=0.00 0.00 ND ND ND ND 0.060HPLC Propoxur 0.060 62 1,454 0.11

— 0.11 0.00 ND ND ND ND 0.110

HPLC 2,4,5-T 0.040 62 1465 0.03

— 0.00 0.00 ND ND ND ND 0.050

HPLC 2,4,5-TP 0.030 62 1,465 0.00

— 0.00 0.00 ND ND ND ND ND 

HPLC Triclopyr 0.040 62 1,466 2.17

— 1.76 0.30 ND ND ND ND 16.000

* The reporting limit for a nondetection is greater than the threshold concentration used for computing detection frequency. Therefore, the reported detection frequency may be an underestimate of the actual percentage of concentrations that are greater than the threshold concentration. 

74

* There was no response from the witness by the time this hearing went to press. 

SUBMITTED QUESTIONS

Response from Dr. Steven Bradbury, Director, Office of Pesticide Programs, U.S. Environmental Protection Agency * 

Questions Submitted by Hon. Jean Schmidt, a Representative in Congress from Ohio 

Question 1. Could you comment on the discussion draft and whether it takes us 

back to before the Cotton Council decision? 

Question 2. Has the EPA sought additional authority under FIFRA to address perceived problems associated with pesticides in surface water? 

Question 3. Are there benefits to the use of pesticides, and if so, how does EPA 

account for this during your review? 

Questions Submitted by Hon. Bob Gibbs, a Representative in Congress from Ohio 

Question 1. As I understand it, EPA evaluates pesticides during the registration 

process and again during the registration review process. Is there an example you 

can discuss where the agency has addressed a problem of pesticide exposure in 

water through either the registration or registration review process? 

Question 2. How does the EPA pesticide program account for exposure through 

drinking water when evaluating dietary exposure to pesticides? 

Question 3. Are there examples of pesticides where EPA has identified an unreasonable risk to surface water and has taken action to phase out the chemical? 

Questions Submitted by Hon. Joe Baca, a Representative in Congress from California 

Question 1. How do you assess chronic exposure to pesticides? 

Question 2. How do you assess acute exposure to pesticides? 

Question 3. You have talked extensively about the FIFRA risk assessment process. 

Can you talk more about how risk is mitigated under FIFRA? 

Response from Dr. Andrew Fisk, Director, Maine Bureau of Land and 

Water Quality; President, Association of State and Interstate Water Pollution Control Administrators 

Questions Submitted by Hon. Jean Schmidt, a Representative in Congress from Ohio 

Question 1. You were each presented with a copy of the draft legislation. The bill 

was drafted with the help of EPA to ensure that it would be consistent with the 

agency’s final regulation issued on November 27th, 2006. Do any of you have an 

opinion or position on the draft legislation? 

Answer. Our review of the draft legislation indicates that it would clarify that pesticides are exempt from the NPDES program. We are still trying to fully understand 

the legislative exceptions and how these would be implemented in practice. We expect to provide further comments as more information becomes available.

Question 2. We have found an excerpt from House Report 92–511 accompanying 

the 1971 amendments to FIFRA in which the Congress states:

‘‘. . . but it is essential to the public health and welfare that [pesticides] be regulated closely to prevent adverse effects on human life and the environment, including pollution of interstate and navigable waters, . . . and that regulation . . . as contemplated by this Act are appropriate to . . . protect the . . . 

environment.’’

Given that FIFRA was being amended at the same time the CWA was being enacted, does anyone on the panel disagree that Congress intended that pesticide applications in or near navigable waters be regulated under FIFRA, and not the Clean 

Water Act? 

Answer. I do not disagree.

Question 3. If this legislation is not enacted, which pesticide applicators will be 

required to have an NPDES permit? 

Answer. EPA has proposed specific size thresholds and application types in or 

near water to be regulated, and indications are that the final permit will cover applications of pesticides registered for aquatic uses and applied to water or forest 

canopies into or over flowing or seasonal waters, and conveyances to those waters. 

However, there is nothing in the CWA nor the permit that protects many other 

FIFRA compliant pesticide applications from CWA citizen suits. This creates an uncertain liability for these users, which may prompt them to ultimately seek permit 

coverage and protection. EPA has projected that its final pesticides general permit 

will expand the NPDES universe by 360,000 plus permittees. 

75

Questions Submitted by Hon. Bob Gibbs, a Representative in Congress from Ohio 

Question 1. Does anything in the pesticide general permit or the Clean Water Act 

protect pest applicators not subject to the permit from a citizen suit under the Act—

for example, applications to land on farms? 

Answer. No. But to be fair anyone can file a citizen lawsuit claiming a violation 

of the Act and so you could pose this concern for any number of possible activities 

other than pesticide application. However, as indicated in the earlier response to 

your colleague, Mrs. Schmidt, those pesticide applications not covered in EPA’s final 

pesticide general permit, including agricultural applicators, are not protected from 

citizen suits under the permit. The CWA does provide several exemptions including 

agriculture stormwater runoff and irrigation return flows which could be applicable, 

depending upon the fact pattern (see e.g., Headwaters, Inc. v. Talent Irrigation Dist.,

243 F.3d 526 (9th Cir. 2001)). Many citizen groups have indicated that they believe 

most pesticide applications should be permitted if there is even a chance that the 

pesticide could come in contact with any water, either flowing water or seasonal 

drainage ditches that could be a conveyance to a Water of the United States. Some 

have rebutted this scenario by saying that this type of activity not ‘‘near’’ waters 

would be determined by a court to be a nonpoint source and so not regulated. However, the court’s reasoning in National Cotton Council (Natl. Cotton Council of Am. v. USEPA, 553 F.3d 927 (6th Cir. 2009) seems to define a pesticide nozzle as a point 

source regardless of where it happens to be located when it is in use.

Question 2. Many of our states have not yet even drafted general permit or a permit consistent with the ruling from the 6th Cir. Case. What do you recommend to 

these states and pesticide applicators in these states that are facing fines of $37,500 

PER DAY for non-compliance? 

Answer. States have been actively working with EPA on developing draft general 

permits, but they are in varying stages of implementing those permits. Although we 

don’t anticipate an immediate wave of litigation, many potential permittees and 

states would be vulnerable to liability. With that in mind, ASIWPCA, along with 

APPCO and NASDA, sent a letter to EPA on February 11, 2011 requesting the 

Agency seek a 6 month extension of the stay in the 6th Circuit. Although states 

have in good faith been developing their own pesticide permits, there are several 

factors beyond states control for which the majority feel a 6 month stay is both necessary and appropriate to ensure significant vulnerability does not exist after the 

current stay expires on April 9th. Although EPA has worked diligently with many 

stakeholders in developing the permit, it has not yet finalized and circulated the 

permit, which will be used in jurisdictions where EPA administers the NPDES program. This delay has compromised permit finalization in the states with delegated 

authority to administer the NDPES program. Many of those states are using the 

Federal permit as a design and implementation template. Additionally, states’ permits will at minimum have to meet the thresholds specified in EPAs final permit. 

States that already have proposed permits may need to make adjustments to be consistent with EPA, which could require further public notice and comment procedures.

Question 3. Notwithstanding EPA’s efforts to develop a pesticide general permit, 

how many states will have to develop their own NPDES pesticide permit program? 

Answer. There are currently 46 states that have delegated authority under the 

CWA to administer their own NPDES permit programs. Of these 46 authorized 

states, two of them (Alaska and Oklahoma) will be covered by the Federal pesticides 

general permit. This means that 44 states must develop their own pesticide permit 

that is at least as protective as EPA’s final pesticide general permit, but can be 

more stringent.

Question 4. If Congress does not act by April 9th, and the necessary permits are 

not in place in the states, what will be your likely course of action? 

Answer. Many states will be in a difficult position and subject to legal vulnerability. On behalf of states, ASIWPCA has requested EPA seek a 6 month extension 

of the stay in order to provide more time to fine tune their pesticide permits and 

build capacity for the wave of new permittees. To date we are not aware that any 

extension has been requested. 

Questions Submitted by Hon. Joe Baca, a Representative in Congress from California 

Question 1. Would EPA’s pesticide general permit, if finalized in its current form 

require pesticide applicators to apply products differently than the FIFRA-registered 

label? 

Answer. Although EPA’s final pesticide general permit has not been shared with 

states, based on the proposed the permit pesticide applicators would apply products 

in accordance with the FIFRA-registered label.

76

Question 2. So, if the permit is a permit to discharge a pesticide that is already 

regulated under the FIFRA label, isn’t the permit really a paperwork exercise? 

Answer. States are concerned that it could become one for the reason you note, 

but also because of staff and resource limitations. NPDES permits are based on the 

filing of information by applicants, technical assistance, compliance inspections, as 

well as monitoring and assessment to determine whether permit limitations and 

conditions are appropriate. Given the size of the pending universe of permittees, 

states are well convinced that they cannot perform the variety of tasks associated 

with a NPDES permit program. There is just not sufficient staff or funding to do 

this.

Question 3. Can you identify a concrete actual environmental benefit that will be 

gained from requiring an NPDES permit? 

Answer. In preparation for this hearing, ASIWPCA polled states as to whether 

they anticipated meaningful water quality improvements through permitting this 

new group of sources. Of the states able to respond in a tight time frame, an overwhelming majority said no. Given that state resources are already stretched, it 

seems an inefficient use of resources to have state regulating sources already covered under FIFRA. Additionally, states are concerned that their currents successes 

in other areas of the NPDES universe will be compromised by the addition of more 

sources to permit. Therefore other environmental gains may suffer due to the resources demands of the impending pesticide permitting programs. 

Questions Submitted by Hon. Timothy H. Bishop, a Representative in Congress from 

New York 

Question 1. I am concerned with what the scientific data from USGS on the presence of pesticides in surface and ground waters says about the effectiveness of current regulatory practices in protecting human health and the water-related environment. 

As I would guess you would recognize, states have similarly reported that pesticides are a significant pollutant of concern in the nation’s list of impaired waters. 

According to state-reported data, roughly 17,000 miles of rivers and streams, 1,300 

square miles of bays and estuaries, and 370,000 acres of lakes are currently impaired or threatened by pesticides. 

In certain states, such as the State of California, pesticides are listed as the number one cause of impairment for 303(d) listed waters. 

I recognize that your organization believes that the best way to address this issue 

is through FIFRA regulation. 

However, I have to question whether the status quo regulation is sufficiently protective of the water-related environment if pesticides keep showing up as a major 

source of impairment. 

In your view, is it simply a question of substituting the current FIFRA implementation process for Clean Water authorities, or do you believe, in the absence of Clean 

Water authorities, that FIFRA, itself, needs to be modified or strengthened to protect our nation’s waters? 

Answer. As I noted in my testimony states recognize that pesticides are present 

in the nation’s waters and that in certain locations there are impairments. However, 

in citing the thousands of miles of impaired streams, consideration must be given 

for pesticides whose use has been severely restricted or completely banned including 

DDT, chlordane, hexachlorobenzene, aldrin, dieldrin, and many, many others that 

show up on impaired waters lists. The list of impaired waters gets much smaller 

once you filter out the list of persistent legacy pesticides no longer (or very rarely) 

being applied. We have not had the opportunity to do such a refinement of the data 

you present, but it is relevant to the question at hand. An NPDES program for pesticide application near water will not resolve the legacy contamination of our nation’s waters from banned or restricted pesticides. 

Likewise USGS data does not attribute a source for the pollution but rather indicates presence. Agriculture runoff and irrigation return flows are specifically exempted from NPDES, along with many other nonpoint sources of contribution, all 

of which can contribute to presence. 

States are comfortable that there is enough underlying authority in FIFRA to 

tackle the water quality problems that have been identified by states themselves or 

the USGS. If as a result of your inquiries you feel that additional statutory language should be added to FIFRA or specific work conducted by EPA’s pesticide programs that would be entirely appropriate. 

Additionally, it is not apparent whether a CWA regulatory tool would improve 

pesticide mitigation. The NPDES program has accomplished much due to its focus 

on predictable and manageable flows, identifiable end-of-pipe controls, extensive 

monitoring, and substantial Federal and state funding for treatment facilities and 

77

technologies. Pesticide permitting will involve hundreds of thousands of transient, 

mini-point source very different from those the NPDES program was designed to 

control. Furthermore, when you take into account the larger water quality picture, 

once already scarce resources are spread to cover the projected 60 percent increase 

in the NPDES universe, states’ successes in combating other impairments may decline. ASIWPCA informally polled states as to whether they anticipated meaningful 

water quality improvements through permitting this new group of sources. Of those 

states able to respond in the short time frame, an overwhelmingly majority indicated they do not anticipate meaningful improvements.

Question 2. Dr. Fisk, generally speaking, would you agrees that decreasing the 

amount of pesticides and pesticide-by-products entering U.S. waters should improve 

overall water quality? 

Answer. Yes, with certain exceptions. Maintaining or restoring the environmental 

integrity of a watershed can be a complex activity, which may include eliminating 

invasive species, managing predator/prey relationships, maintaining stream bank 

vegetation and buffer zones, reducing aquatic weeds, protecting forests and tree 

stands, all of which can be assisted by the use of pesticides.

Question 3. Would you agree that calibration and maintenance of pesticide spraying equipment should result in less pesticides showing up in U.S. waters? 

Answer. Yes, better maintained equipment would be more effective in minimizing 

this risk. However, these practices are currently set forth in regulations promulgated under FIFRA. Therefore, we find that requiring the same under the CWA 

would only be duplicative.

Question 4. Similarly, would you agree that the use of non-chemical alternatives 

to pest control should result in less pesticides showing up in U.S. waters? 

Answer. While non-chemical alternatives might result in less pesticide contamination, these alternatives are not always without their own set of unintended consequences, and may present other sources of water quality impairments. Without 

more specifics on the composition of these alternatives I am hesitant to offer an 

opinion as to their overall water quality benefit.

Question 5. Would you also agree that applying the lowest effective amount of pesticides necessary to control pests should reduce pesticide wastes in U.S. waters? 

Answer. Yes, this should reduce the amount of overall pesticides. However, I don’t 

believe that a regulation requiring this practice under the Clean Water Act, that 

would only parallel the regulations currently under FIFRA, would produce any 

added benefit. I think it is worth mentioning that in some areas around the country 

where pesticides are detected in surface waters, you have individual homeowners 

applying lawn and garden products who would not be covered by the NPDES permitting program. Those very significant sources of pesticides need to be dealt with 

under FIFRA as well as continued and sustained public education and outreach.

Question 6. Finally, would you agree that applying pesticides in accordance with 

their FIFRA labeling requirements should improve overall water quality? 

Answer. Yes. I agree that application of pesticides in accordance with FIFRA labeling is sufficient to address water quality impacts, especially when local conditions 

are considered. If there are specific instances where label requirements are not sufficient, then EPA’s pesticide program should continue to address these issues 

through the use of their FIFRA authorities. Dual regulation under the CWA is duplicative and an inefficient use of strapped state resources. 

Response from Dominick V. Ninivaggi, Superintendent, Division of Vector 

Control, Suffolk County Department of Public Works, Yaphank, NY; on 

behalf of American Mosquito Control Association; and David Brown, 

Manager, Sacramento-Yolo Mosquito and Vector Control District 

Questions Submitted by Hon. Jean Schmidt, a Representative in Congress from Ohio 

Question 1. You were each presented with a copy of the draft legislation. The bill 

was drafted with the help of EPA to ensure that it would be consistent with the 

agency’s final regulation issued on November 27th, 2006. Do any of you have an 

opinion or position on the draft legislation? 

Answer. We support the current language if it successfully resolves the problems 

created by the 6th Circuit Court of Appeals ruling.

Question 2. We have found an excerpt from House Report 92–511 accompanying 

the 1971 amendments to FIFRA in which the Congress states:

‘‘. . . but it is essential to the public health and welfare that [pesticides] be regulated closely to prevent adverse effects on human life and the environment, including pollution of interstate and navigable waters, . . . and that regulaVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00083 Fmt 6621 Sfmt 6621 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
78

tion . . . as contemplated by this Act are appropriate to . . . protect the . . . 

environment.’’

Given that FIFRA was being amended at the same time the CWA was being enacted, does anyone on the panel disagree that Congress intended that pesticide applications in or near navigable waters be regulated under FIFRA, and not the Clean 

Water Act? 

Answer. We agree that Congress intended that pesticide applications in or around 

navigable waters be regulated under FIFRA and not the CWA. In view of the timing 

of the passage of the CWA and FIFRA, it appears that Congress appreciated that 

for efficiency purposes and to avoid unnecessary burdens both for the affected public 

and the Agency, pesticide impacts associated with their beneficial intended uses 

would appropriately be handled under FIFRA and not the CWA.

Question 3. If this legislation is not enacted, which pesticide applicators will be 

required to have an NPDES permit? 

Answer. Absent legislative relief, the permit currently proposed will require the 

following pesticide applicators to have an NPDES permit: mosquito and other flying 

insect control, aquatic weed and algae control, aquatic nuisance animal control, and 

forest canopy pest control. However, other pesticide users have also expressed their 

concerns that the 6th Circuit decision on its face is also directly applicable to certain 

agricultural applications, subjecting them as well to potential litigation. The extraordinary expansion of CWA jurisdiction that the 6th Circuit ruling represents 

makes many uses that historically were not subject to NPDES requirements, now 

have to potentially address them or face substantial liability for their failure to do 

so. As far as we can determine, this emanates from the court misinterpreting what 

Congress intended almost 40 years ago.

Question 4. How common is the misapplication of pesticides in the control of mosquitoes? 

Answer. While it cannot be guaranteed that absolutely no misapplications have 

occurred, the focus on compliance with labeling makes this a very uncommon event. 

We are not aware of enforcement actions that have been initiated by state or Federal regulators for pesticide applications made by mosquito abatement districts. 

Mosquito control professionals take great pride in ensuring that pesticides, when 

needed, are applied using technology that ensures effective targeting, dosage, and 

droplet spectrum—applied by individuals trained and certified in their use. GPS/

GIS-monitored spray routes and spray output, droplet analysis, equipment calibration, comprehensive equipment maintenance schedules, and continuing education 

requirements are integral facets of any effective mosquito abatement program and 

are strongly endorsed by all members of the American Mosquito Control Association 

(AMCA). This comprehensive effort is designed to not only minimize misapplication, 

but to ensure that there is a margin of error should human fallibility intervene.

Question 5. Who would pay the legal fees for you to defend against citizen suits? 

Answer. The overwhelming majority of mosquito control operations are publicly 

funded. Local taxpayers would pay the fees to defend against citizen suits. Should 

plaintiffs prevail in court, state and local governments would also be required to 

shoulder court costs that could easily exceed any fines and run into the millions of 

dollars.

Question 6. If you have to divert program funding to defend against frivolous citizen suits, how would this affect the health and safety of the communities you 

serve? 

Answer. Tax funded mosquito control districts are already operating with tight 

budgets. Indeed, the current economy has significantly increased public funding 

challenges. Any diversion of funds that are currently used to control mosquitoes will 

result in increased infestations of biting mosquitoes and disease transmission in the 

communities served.

Question 7. EPA is in the process of developing a pesticide general permit. Does 

the agency issuance of the general permit automatically cover applicators, or is it 

the responsibility of the pesticide applicators to seek coverage under the NPDES 

permit? 

Answer. It will be the responsibility of the pesticide applicators to seek coverage 

under the NPDES permit. Notices of Intent (NOI’s), Pesticide Discharge Management Plans (PDMP’s), duplicative record-keeping and reporting will divert important financial resources that are currently being used to protect the public health 

from mosquitoes and mosquito-borne diseases.

Question 8. Generally speaking, what will be the cost to those states to implement 

and administer an NPDES permit process for pesticide applications? 

79

Answer. It is unclear as to what the total cost will be to states to implement, administer and enforce the NPDES permits. States with many districts and smaller 

control entities will incur more costs than states without commensurate numbers 

of applicators. Much of the cost will ultimately be driven by efforts to forestall potential litigation. In California, it has already been estimated that it will cost local 

mosquito control agencies over $1 million of taxpayers’ money to comply with the 

NPDES permit. The 734 districts and 1,105 smaller entities we have identified nationwide will all face record-keeping costs. In addition, the 1,105 smaller jurisdictions with budgets less than $50,000 will have to hire vector biologists and purchase 

expensive surveillance and GPS/GIS equipment to fully comply with even minimal 

permit requirements. These new budgetary needs will far surpass historical budgets 

and remain beyond the public’s ability to sustain.

Question 9. Are aquatic uses of pesticides subject to approval under the Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA)? 

Answer. All pesticides and their uses are subject to approval under the Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Question 10. What, if any environmental protection is gained by having pesticide 

applicators get a NPDES permit? 

Answer. We believe there is no environmental protection gained by having pesticide applicators obtain an NPDES permit. The environmental protections are already provided though adherence to FIFRA and standard mosquito control practices.

Question 11. How many states have large budget surpluses such that they can afford to administer duplicative programs such as this? 

Answer. We understand that at least 40 states (and likely more) are experiencing 

severe budget deficits. California, for example, is experiencing a budget deficit of 

over $20 billion. We are aware of no states or other jurisdictions with the excess 

funds available to implement unnecessary, duplicative regulation.

Question 12. What are some of the benefits of using pesticides? 

Answer. The judicious use of pesticides as part of a fully integrated mosquito management program protects the public from pestiferous and disease-carrying mosquitoes. Considered utilization of public health pesticides may also protect wildlife, including endangered species, from mosquito-borne diseases such as West Nile Virus 

and both Eastern and Western Encephalitis. Further benefits include protection of 

tourism, property values and beef/milk production.

Question 13. In light of EPA’s extensive and rigorous program, is there any reason 

to regulate under the Clean Water Act, pesticides that EPA has registered under 

FIFRA, and if so, under what circumstances? 

Answer. We do not believe there are circumstances that would require further regulation of pesticides under the Clean Water Act. The pesticide registration process 

fully evaluates potential environmental effects.

Question 14. Would requiring pesticide users to obtain NPDES permits under the 

Clean Water Act before using pesticides increase environmental protection? 

Answer. We do not believe it would increase environmental protection, and could 

result in an increase in mortality in many birds and animals that are susceptible 

to mosquito-borne diseases. Crows, jays and magpies are very susceptible to West 

Nile Virus. Raptors such as hawks, eagles and owls are also killed in large numbers 

by this disease. Additionally, endangered species such as Sandhill Cranes have fallen victim to mosquito-borne encephalitis outbreaks in the past. Without effective 

pesticide applications in a mosquito control program we could see sharp reductions 

of many species of concern.

Question 15. Are you aware of any credible data showing widespread, significant 

deterioration in water quality in recent years caused by pesticides? 

Answer. We are aware of a USGS report that suggested finding pesticides in certain waterways, and we know of certain studies in California that have shown increased loads of pesticides in certain waterways after storm events. An NPDES permit would not address these issues as the evidence points to homeowner 

misapplications and improper disposal.

Question 16. Have public health officials, forestry groups, farmers, or other pesticide users raised concerns about being required to obtain NPDES permits for pesticide use? 

Answer. All of the mentioned groups are on the record through comments on Federal dockets regarding the increased costs and duplicative regulations related to obtaining permits for lawful pesticide use.

Question 17. Has EPA ever required users to obtain NPDES permits before applying agricultural pesticides? 

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Answer. We are not aware of any NPDES permit requirements for agricultural 

pesticide use prior to the 6th Circuit decision.

Question 18. Is the policy articulated in the Discussion Draft Bill consistent with 

the position EPA takes in its rulemaking on NPDES permits and pesticides? 

Answer. We believe the draft bill is fully consistent with the EPA’s rulemaking 

relative to NPDES permits and pesticides. 

Mosquito Control 

Question 19. Are public health pesticide programs, such as mosquito control programs exempt from the 6th Circuit decision? 

Answer. Public health pesticide programs are not exempt from the 6th Circuit decision and will be required to apply for and comply with NPDES permitting programs at either the state or Federal level.

Question 20. Do pesticide applications aimed at protecting public health such as 

mosquito control programs aimed at minimizing the risk of West Nile Virus fall 

within the universe of applications that will be subject to the permit requirement? 

Answer. Yes.

Question 21. If the court order goes into affect on April 9th as currently antici- pated, the fine for non-compliance is $37,500 per day. Are mosquito control programs subject to EPA enforcement action? 

Answer. If a mosquito control program is not in compliance with an NPDES per- mit after April 9th they may be subject to enforcement action and up to $37,500 

per day fines and/or incarceration, depending upon the nature of the offense.

Question 22. If the Federal or state agency fails to enforce for noncompliance with 

the permit requirement, are citizens free to file suit against applicators? 

Answer. Yes, and mosquito control districts would be subject to civil penalties and 

attorney fees from these citizen suits. Such penalties, court costs and legal fees 

could far exceed EPA fines.

Question 23. If the agency were to announce the issuance of a general permit tomorrow, would there continue to be operational problems related to this issue for 

your members? 

Answer. Yes. Allocating resources to comply with a permit that are normally used 

to control and survey for mosquitoes would hamper normal operations and result 

in an increase in mosquitoes and mosquito-borne diseases. In addition, this permit 

and those issued by the states would be subject to legal challenge that could result 

in continued uncertainty and confusion.

Question 24. Do any of your members treat Federal lands, such as national parks, 

and if so, does this issue have any potential impact on those areas? 

Answer. Yes. It is unclear, however, just what impacts permits developed in other 

states would have on pesticide applications performed on Federal lands, particularly 

Federal lands overlapping state lines. Absent a codified Service policy on mosquito 

control applications on refuges and other Federal lands, impacts of the NPDES permitting system in these jurisdictions will be an area of acute concern for mosquito 

control programs.

Question 25. Can’t you simply avoid this whole issue by simply not treating for 

mosquitoes in, over or near water? 

Answer. No. Mosquitoes complete their full lifecycle on both terrestrial and aquatic sites. Larval mosquitoes are found in aquatic sites, including waters of the U.S. 

Adult mosquitoes lay eggs on or around areas that may include waters of the U.S. 

and may aggregate in such areas. Effective mosquito control includes pesticide applications in, over or near water. Adulticides, are often applied over water, but deposition of the minute particles is precluded by drift downwind on air currents to the 

target areas well beyond the water body.

Question 26. Do you think the issuance of an NPDES permit will have any substantive impact on enhancing mosquito treatment operations? 

Answer. No. In fact, allocating tax payer dollars to comply with the permit will 

take away scarce resources normally used to conduct mosquito surveillance and 

prompt and effective control.

Question 27. Could you expand on the methods typically employed by mosquito 

districts in their control programs? 

Answer. Mosquito control programs use an integrated approach to control mosquitoes in the communities they serve. These methods, or Integrated Mosquito Management (IMM) use a variety of surveillance measures to identify what and where the 

problem is, and then based on available resources, employ an integrated approach 

to address the problem. The methods used consist of physical, biological, or targeted 

use of pesticides to reduce mosquito populations. The methods used are largely deVerDate 0ct 09 2002 11:41 Apr 08, 2011 Jkt 041481 PO 00000 Frm 00086 Fmt 6621 Sfmt 6621 I:\DOCS\112-03\64689.TXT AGR1 PsN: BRIAN
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pendent on the sites where the mosquitoes are found and the available resources 

to employ them.

Question 28. Are mosquito levels creating a public health risk for West Nile Virus 

or other vector-borne infectious diseases? 

Answer. West Nile Virus is still found throughout the continental United States, 

and Dengue fever has been found recently in parts of Florida. An increase in mosquito levels could result in an increase of these potentially fatal diseases being 

transmitted to local residents. Malaria, although rarely transmitted in the United 

States nowadays, was historically prevalent, with 125,000 cases being transmitted 

as late as 1935. The mosquito species which transmitted these cases are still plentiful in the United States. Several thousand imported cases each year are reported 

to the Centers for Disease Control and Prevention. Without mosquito control, these 

cases could serve as the source of future outbreaks.

Question 29. How would mosquito control districts’ efforts be constrained if they 

were required to obtain NPDES permits before being able to treat for mosquitoes? 

Answer. Resources normally allocated to perform IMM would be diverted to comply with the provisions of NPDES permits. California mosquito control districts have 

estimated it will take $1 million to comply with a permit. This figure exceeds many 

of the mosquito control districts’ operating budgets.

Question 30. West Nile Virus has become quite a problem around the nation. Has 

the West Nile Virus rate decreased since you began to more aggressively treat for 

adult mosquitoes? 

Answer. Yes. One must remember, though, that due to ethical considerations, it 

is extremely difficult to design studies to determine efficacy and document decreased 

disease incidence from spray operations. Nonetheless, the prevalence of West Nile 

Virus has been reduced in areas where targeted mosquito control has reduced mosquito populations. North Sacramento County documented significant reductions in 

mosquito trap counts and elimination of West Nile Virus cases after aggressive control measures were applied in 2005. 

Empirical observations and retrospective risk analysis conducted by Michigan 

State University suggest that citizens living outside of mosquito control jurisdictions 

in Michigan during the 2002 West Nile Virus outbreak had a tenfold increased risk 

of WNV infection compared to people living inside of these jurisdictions. WNV infection rates in vector mosquito populations within mosquito control jurisdictions were 

approximately 7.8 times lower compared to populations outside of these jurisdictions.

Question 31. How common is the misapplication of pesticides in the control of 

mosquitoes? 

Answer. While it cannot be guaranteed that absolutely no misapplications have 

occurred, the focus on compliance with labeling makes this a very uncommon event. 

We are not aware of enforcement actions that have been initiated by state or Federal regulators for pesticide applications made by mosquito abatement districts. 

Mosquito control professionals take great pride in ensuring that pesticides, when 

needed, are applied using technology that ensures effective targeting, dosage, and 

droplet spectrum—applied by individuals trained and certified in their use. GPS/

GIS-monitored spray routes and spray output, droplet analysis, equipment calibration, comprehensive equipment maintenance schedules, and continuing education 

requirements are integral facets of any effective mosquito abatement program and 

are strongly endorsed by all members of the American Mosquito Control Association 

(AMCA). This comprehensive effort is designed to not only minimize misapplication, 

but to ensure that there is a sufficient margin of error should human fallibility intervene.

Question 32. We understand that there are several hundred state and local mosquito control programs around the country, and that each year these programs conduct several hundred thousand ground and aerial applications of chemical and biological pesticides to control and manage mosquitoes. Are those numbers approximately correct? 

Answer. Yes. We have identified 734 mosquito abatement districts in the United 

States in addition to 1,105 smaller control agencies affiliated with municipalities. 

Each makes public health pesticide applications within their jurisdictions in accordance with locally established intervention thresholds—the number and type of applications are driven by local conditions. Mosquito larviciding, in particular, can encompass several thousand applications to water sources, storm drains, etc., per each 

entity annually.

82

Question 33. How would your association members secure NPDES permits to 

cover this many applications? Can you describe specific concerns that need to be 

taken into account in securing NPDES permits for all of these applications? 

Answer. Given the broad range of authority states have with implementing 

NPDES permits, it is unclear just how AMCA members will be able to comply.

Question 34. What types of pesticides are typically used to control mosquitoes? 

Are most of the larvicide and adulticide pesticides used to control mosquitoes ‘‘biological’’ or ‘‘chemical’’ in nature? 

Answer. A wide range of pesticide classes are utilized where and when deemed 

appropriate by competent authority. ‘‘Biological Controls’’ are most often used in 

larviciding, as they are inappropriate for adult mosquito control. These controls consist of various species of bacteria that produce toxins in the gut of specific target 

species. In some cases, certain species of small, top-feeding fish can be used to reduce larval populations. Certain chemicals specifically engineered to exploit either 

behavioral or physiological vulnerabilities in the mosquito larvae are also used when 

appropriate. 

It should be noted that there is no inherent benefit to utilizing biological controls 

over chemical controls except where the situation dictates. Environmental impacts 

from chemical controls tend to be short term and defined in area by design. Nontarget effects are transitory, with populations of aquatic nontargets rebounding rapidly 

after initial impact. Biological controls such as predators and/or habitat modification, on the other hand, produce far more profound and lasting effects.

Question 35. Why are adulticides used to control mosquitoes, instead of just 

larvicides? 

Answer. It is impossible to apply enough larvicides to each larval habitat throughout a mosquito season to prevent all mosquito adults from emerging. In addition to 

the sheer number of potential oviposition sites to be treated, timing of the applications is critical and will vary substantially with season, rainfall and mosquito species. Furthermore, there will also be continual migration in from outlying areas. 

Areas encompassing Federal lands often forbid any mosquito larvicidal control applications. This will ultimately result in adulticiding being required to control the mosquitoes originating from these untreated areas. 

In many cases, districts must follow strictly enforced treatment algorithms dictated by the state that preclude larviciding until disease becomes manifest through 

bird/mosquito surveillance or human cases. During the intervening incubation period, adult mosquitoes are hatching out unimpeded. Once disease case is diagnosed, 

these potentially infective adult mosquitoes require control, as larviciding success 

becomes moot at this point.

Question 36. How is mosquito control handled (if at all) in localities where there 

are no Mosquito Control Agencies? 

Answer. In the absence of organized on-site control programs, jurisdictions that 

require control efforts turn to contract applicators or pest control operators with the 

equipment/expertise to institute control methods. These are stop-gap measures and 

are rarely sustainable. In addition, when there is an infestation that individual 

homeowners find intolerable, they frequently treat their property themselves. These 

applications are not as carefully controlled as those conducted by professionals, and 

pesticide doses applied can be 64 times the dose used by professionals. 

Questions Submitted by Hon. Bob Gibbs, a Representative in Congress from Ohio 

Question 1. Does anything in the pesticide general permit or the Clean Water Act 

protect pest applicators not subject to the permit from a citizen suit under the Act—

for example, applications to land on farms? 

Answer. As mentioned earlier, we believe other pesticide applicators, such as 

those involved in certain agricultural applications may be subject to citizen suits 

even though the current permit does not cover those applications.

Question 2. If Congress does not act by April 9th, and the necessary permits are 

not in place in the states, what will be your likely course of action? 

Answer. It is unclear just what each mosquito control district will do if there is 

no permit in place in all states by April 9th. Mosquito control agencies take their 

public mandate to protect public health seriously, and many agencies will likely still 

try to perform their public mandate . . . until they receive 60 day notices of intention to sue under the Clean Water Act. It is believed most Districts will halt operations at that time. The April 9 deadline is especially unfortunate because it comes 

at the beginning of the mosquito season in many parts of the country. This is particularly poor timing for the mosquito control agencies, having to deal with potential 

legal delays while also addressing rising mosquito populations.

83

Question 3 What burden, if any, does obtaining an additional, completely duplicative permit create for your programs? 

Answer. Any unnecessary expenditures for permit compliance will needlessly divert resources from current operations. This will result in a reduction in control 

measures and an increase in mosquitoes and mosquito-borne diseases. Besides the 

burden of additional administrative paperwork, CWA permits could result in costly 

monitoring requirements. 

Questions Submitted by Hon. Joe Baca, a Representative in Congress from California 

Question 1. Would EPA’s pesticide general permit, if finalized in its current form 

require pesticide applicators to apply products differently than the FIFRA-Registered label? 

Answer. There would be no difference. FIFRA-registered labels provide a range of 

application rates with which applicators must comply. The EPA’s pesticide general 

permit would not change this requirement. In addition, the proposed general permit 

mandates control decision algorithms based on integrated mosquito management 

principles that are already being practiced by mosquito control entities.

Question 2. Does the proposed pesticide general permit limit or require reductions 

in the numbers or volume of a pesticide applied? 

Answer. The proposed pesticide general permit suggests utilization of control 

methodologies that may result in reductions in volumes in pesticides applied, but 

may compromise strategies to prevent virus amplification in avians through early 

season adulticiding. This could result in higher environmental loading by districts 

forced to address virus-positive mosquito populations later in the season. 

In general, the idea that federally mandated reductions in volume of pesticide applied would automatically result in benefits is flawed. If too low a dose is applied, 

for instance, the result can be a failed treatment. Treatment failure can, in turn, 

result in the need to use even more pesticide to deal with the failure as a pest problem spreads and worsens. A failed treatment can also impact public health by failing to control infected vectors and allowing disease transmission to continue. Chronic application of too low a dose, in an attempt to meet CWA permit mandates, can 

also result in pesticide resistance and a long term need to use a higher dose to get 

the same control level. 

Applicators already conduct cost-benefit analyses to determine the most efficient 

method for managing mosquito populations as part of their jurisdictional charters. 

Indeed, the rationale for requiring reductions under a permit system assumes that 

applicators accountable to the taxpayers and/or contracting authorities would apply 

expensive pesticides without regard to budgetary considerations or professional 

standards. The cost of pesticides alone would preclude their use at label rates beyond that needed. CWA permitting is not the proper vehicle to control pesticide 

dose; this is already addressed under FIFRA and the user community.

Question 3. Mr. Baca: So, if the permit is a permit to discharge a pesticide that 

is already regulated under the FIFRA label, isn’t the permit really a paperwork exercise? 

Answer. We believe the permit is an unnecessary paperwork burden regarding 

pesticide applications that are already fully and successfully regulated under 

FIFRA. The permit will not result in environmental protections beyond those already afforded under FIFRA and standard mosquito control techniques. However, 

the permit requirement is more than a paper exercise in the sense that CWA permitting exposes users to citizen lawsuits under that Act. The concern is not merely 

that more paperwork will be required; CWA permitting carries significant legal 

risks to applicators attempting to operate under its jurisdiction.

Question 4. Can you identify a concrete actual environmental benefit that will be 

gained from requiring an NPDES permit? 

Answer. We cannot. While some people would suggest that eliminating pesticide 

applications would be an environmental benefit, we would argue that the resulting 

increase in mosquito populations, with the attendant additional pestiferous and disease burden in both humans and wildlife would actually be detrimental to the environment. In fact, failure to control mosquitoes in and around water due to CWA 

strictures could result in more pesticide use in upland areas as the mosquitoes fly 

out and infest populated areas. Aquatic areas are the source of mosquito problems, 

and they are best controlled at the source. Infestations that could be easily controlled by treating a few acres of wetland could turn into swarms that fly out and 

infest hundreds of acres of upland. Controlling the problem after that happens could 

easily require more pesticide than if the problem were controlled at the source. Such 

a result is likely and clearly not beneficial to the environment. 

84

Response from Hon. John Salazar, Commissioner, Colorado Department of 

Agriculture; on Behalf of National Association of State Departments of 

Agriculture 

Questions Submitted by Hon. Jean Schmidt, a Representative in Congress from Ohio 

Question 1. You were each presented with a copy of the draft legislation. The bill 

was drafted with the help of EPA to ensure that it would be consistent with the 

agency’s final regulation issued on November 27th, 2006. Do any of you have an 

opinion or position on the draft legislation? 

Answer. NASDA strongly supports a legislative fix. Congress must act quickly. 

NASDA continues to review the draft and engage our state legal experts. We believe 

the draft goes a long way to alleviating the problems caused by the 6th Circuit and 

we look forward to working with you to make sure we fix this problem.

Question 2. We have found an excerpt from House Report 92–511 accompanying 

the 1971 amendments to FIFRA in which the Congress states:

‘‘. . . but it is essential to the public health and welfare that [pesticides] be regulated closely to prevent adverse effects on human life and the environment, including pollution of interstate and navigable waters, . . . and that regulation . . . as contemplated by this Act are appropriate to . . . protect the . . . 

environment.’’

Given that FIFRA was being amended at the same time the CWA was being enacted, does anyone on the panel disagree that Congress intended that pesticide applications in or near navigable waters be regulated under FIFRA, and not the Clean 

Water Act? 

Answer. It is clear Congress intended for FIFRA to be the controlling statute in 

regards to pesticide applications in or near navigable waters.

Question 3. If this legislation is not enacted, which pesticide applicators will be 

required to have an NPDES permit? 

Answer. The permit in some states will extend to ‘‘waters of the state’’ which in 

many cases are more expansive that waters covered under the Federal Clean Water 

Act. This is the case in Colorado, where ditches, whether dry or flowing, will be included. This obviously greatly expands the universe of those impacted and our permit would likely include: municipalities, counties, mosquito control programs, and 

even farmers and ranchers with ditches on their property. 

Questions Submitted by Hon. Bob Gibbs, a Representative in Congress from Ohio 

Question 1. Does anything in the pesticide general permit or the Clean Water Act 

protect pest applicators not subject to the permit from a citizen suit under the Act—

for example, applications to land on farms? 

Answer. This is one of our biggest concerns. By extending the reach of the Clean 

Water Act’s NPDES permitting requirements to these pesticide applications, the 

Court has exposed a very large universe of pesticide users to citizen suits.

Question 2. If Congress does not act by April 9th, and the necessary permits are 

not in place in the states, what will be your likely course of action? 

Answer. If EPA or a state’s general permit has not been finalized prior to April 

9, pesticide applicators would face significant legal vulnerabilities under the Clean 

Water Act and all applicators—large and small—would be required to obtain an individual NPDES permit. However, it is important to emphasize that obtaining an 

individual permit can be very expensive to applicants and processing the numbers 

of individual permits would likely cripple state agencies. Furthermore, in Colorado 

our partners in the Department of Public Health and Environment tell us that it 

takes about 18 months to issue individual permits so even trying to obtain coverage 

is not an option for this and possibly next year’s application season. Because of this, 

as detailed in my testimony, it is likely a significant number of pesticide applications that are vital to public health, water availability and the economic vitality of 

our rural communities would simply not be made. Additionally, we would be unable 

to combat emergency pest situations, again, significantly impacting public health 

and the economy.

Questions Submitted by Hon. Joe Baca, a Representative in Congress from California 

Question 1. How important are pesticide applications in protecting your state? 

Answer. Pesticide applications are vital for vector control programs. West Nile 

Virus killed 63 Coloradans in 2003. Annual deaths from West Nile Virus have been 

kept under 7 per year following our implementation of pesticide-based control programs. Colorado depends on pesticides to treat our forests for Mountain Pine 

Beatles and to keep our waterways clear of vegetation. If untreated, our forests 

would become even more devastated and vegetation in our waterways could deprive 

85

farmers and downstream states of much-needed water. In addition, agricultural producers depend on pesticides to protect crops from economically devastating pests. 

This is particularly true in combatting emergency pest situations that must be dealt 

with swiftly in order to protect public health and the economy.

Question 2. Would EPA’s pesticide general permit, if finalized in its current form 

require pesticide applicators to apply products differently than the FIFRA-Registered label? 

Answer. EPA’s draft general permit does not prescribe for pesticide products a different manner of application from the FIFRA-registered label. Instead, it creates an 

additional layer of paperwork requirements that are duplicative and provide no additional environmental benefits that are not already taken into account through the 

FIFRA registration and re-registration processes. All the permit really does is create 

unnecessary burdens on states and applicators, while injecting significant confusion 

and uncertainty among permitting agencies and applicators.

Question 3. Does the proposed pesticide general permit limit or require reductions 

in the numbers or volume of a pesticide applied? 

Answer. The permit does not outline specific reductions or limits on pesticide applications (in contrast, FIFRA-registered labels do). However, the permit does include language that, because of its vagueness, could create confusion and uncertainty among applicators. We are concerned this uncertainty would inadvertently 

constrain applicators from being able to make appropriate, judicious and legal pesticide applications when needed.

Question 4. So, if the permit is a permit to discharge a pesticide that is already 

regulated under the FIFRA label, isn’t the permit really a paperwork exercise? 

Answer. Yes. A duplicative and expensive one that diverts much-needed state resources. It is important to note that this is in conflict with the Clean Water Act 

itself, which states, ‘‘the procedures utilized for implementing this Act shall encourage the drastic minimization of paperwork and interagency decision procedures, and 

the best use of available manpower and funds, so as to prevent needless duplication 

and unnecessary delays at all levels of the government.’’ (Sec. 101(f). [33 U.S.C 1251, 

2008])

Question 5. Can you identify a concrete actual environmental benefit that will be 

gained from requiring an NPDES permit? 

Answer. No. In fact, there could actually be adverse environmental consequences: 

Waterways could become clogged with vegetation, depriving farmers and downstream states of much-needed water; pests could devastate forest canopies, raising 

temperatures of streams and impairing waterways; and invasive pests and noxious 

weeds could spread significantly.

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SUBMITTED REPORT BY HON. TIMOTHY H. BISHOP, A REPRESENTATIVE IN CONGRESS

FROM NEW YORK


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Æ


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