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25–913 PDF 2006

H.R. 1749, PEST MANAGEMENT AND

FIRE SUPPRESSION FLEXIBILITY ACT

(109–33)

HEARING

BEFORE THE

SUBCOMMITTEE ON

WATER RESOURCES AND ENVIRONMENT

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

SEPTEMBER 29, 2005

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

CHARLES W. DENT, Pennsylvania

TED POE, Texas

DAVID G. REICHERT, Washington

CONNIE MACK, Florida

JOHN R. ‘RANDY’ KUHL, JR., New York

LUIS G. FORTUN ̃ O, Puerto Rico

LYNN A. WESTMORELAND, Georgia

CHARLES W. BOUSTANY, JR., Louisiana

JEAN SCHMIDT, Ohio

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

ROBERT MENENDEZ, New Jersey

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JOHN T. SALAZAR, Colorado

(II)
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

JOHN J. DUNCAN, JR., Tennessee, Chairman

SHERWOOD L. BOEHLERT, New York

WAYNE T. GILCHREST, Maryland

VERNON J. EHLERS, Michigan

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

GARY G. MILLER, California

HENRY E. BROWN, JR., South Carolina

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

TOM OSBORNE, Nebraska

TED POE, Texas

CONNIE MACK, Florida

LUIS G. FORTUN ̃ O, Puerto Rico

CHARLES W. BOUSTANY, JR., Louisiana,

Vice-Chair

JEAN SCHMIDT, Ohio

DON YOUNG, Alaska

(Ex Officio)

EDDIE BERNICE JOHNSON, Texas

JOHN T. SALAZAR, Colorado

JERRY F. COSTELLO, Illinois

GENE TAYLOR, Mississippi

BRIAN BAIRD, Washington

TIMOTHY H. BISHOP, New York

BRIAN HIGGINS, New York

ALLYSON Y. SCHWARTZ, Pennsylvania

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

RUSS CARNAHAN, Missouri

NICK J. RAHALL, II, West Virginia

ELEANOR HOLMES NORTON, District of

Columbia

JOHN BARROW, Georgia

JAMES L. OBERSTAR, Minnesota

(Ex Officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Brown, David, Manager, Sacramento-Yolo Mosquito and Vector Control District, American Mosquito Control Association, accompanied by Karl

Malamud-Roam, Chairman, Legislative and Regulatory Committee, American Mosquito Control Association ...................................................................... 25

Campbell, Scott L., Chairman, Water Quality Task Force, National Water

Resources Association, Inc., accompanied by Norm Semanko, President,

National Water Resources Association and Executive Director, Idaho Water

Users Association ................................................................................................. 25

Cardoza, Hon. Dennis A., a Representative in Congress from the State of

California .............................................................................................................. 9

Flanagan, Edward R., President and CEO, Jasper Wyman and Son, American

Farm Bureau Federation ..................................................................................... 25

Grumbles, Hon. Benjamin H., Assistant Administrator for Water, U.S. Environmental Protection Agency, accompanied by James J. Jones, Director,

Office of Pesticides Program, U.S. Environmental Protection Agency ............ 11

Hoover, Shawnee, Special Projects Director, Beyond Pesticides/National Coalition Against the Misuse of Pesticides ................................................................. 25

Koehn, Steven W., Director and State Forester, Maryland Department of

Natural Resources-Forest Service, the National Association of State Foresters ..................................................................................................................... 11

Otter, Hon. C.L. ‘‘Butch’’, a Representative in Congress from the State of

Idaho ..................................................................................................................... 4

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Cardoza, Hon. Dennis A., of California .................................................................. 46

Otter, Hon. C.L. ‘‘Butch’’, of Idaho ......................................................................... 109

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Brown, David ........................................................................................................... 38

Campbell, Scott L. ................................................................................................... 42

Flanagan, Edward R. ............................................................................................... 48

Grumbles, Hon. Benjamin H. ................................................................................. 54

Hoover, Shawnee ..................................................................................................... 61

Koehn, Steven W. .................................................................................................... 104

ADDITIONS TO THE RECORD

Association of Metropolitan Water Agencies, Diane VanDe Hei, Executive

Director, letter, September 29, 2005 .................................................................. 18

Idaho Gem County, Sharon Pratt, Michele Sherrer, Lan Smith, Gem County

Commissioners, letter, September 28, 2005 ....................................................... 6

(1)

H.R. 1749, PEST MANAGEMENT AND FIRE

SUPPRESSION FLEXIBILITY ACT

Thursday, September 29, 2005

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND, INFRASTRUCTURE, SUBCOMMITTEE ON

WATER RESOURCES AND ENVIRONMENT, WASHINGTON,

D.C.

The committee met, pursuant to call, at 10:00 a.m. in room 2167,

Rayburn House Office Building, Hon. John J. Duncan, Jr. [chairman of the committee] presiding.

Mr. DUNCAN. Since we have Congressman Otter here and we

have Ms. Johnson here, we are going to go ahead and start. I

would like first to welcome everyone to our hearing on H.R. 1749,

the Pest Management and Fire Suppression Flexibility Act.

H.R. 1749 is aimed at addressing regulatory uncertainties that

have recently been created for farmers, foresters, irrigators, water

resource managers, and public health agencies that utilize pesticides or other products in or around water bodies. All Americans

want to do everything possible to protect public health, protect the

natural resources and have a safe and ample food supply.

In order to meet these goals, pesticide products and other materials sometimes need to be used to eradicate mosquito-borne illnesses, protect forests and control forest fires, and enhance crop

production. Pesticide products also are used to protect lakes, reservoirs and irrigation canals from noxious weeds and in some instances to control invasive or non-native species.

If we did not control these weeds and non-native species, we

could lose our ability to fish and boat in our lakes, store drinking

water, operate hydropower facilities, transport irrigation water to

farms, protect native species and really help feed millions and millions and millions of people, even billions of people in this Country

and around the world.

Pesticide products are regulated under the Federal Insecticide,

Fungicide and Rodenticide Act, commonly known as FIFRA. Under

this act, before a pesticide product is used, the Environmental Protection Agency must make sure that use of the pesticide will not

result in unreasonable adverse effects on the environment.

FIFRA prohibits the sale of any pesticide unless it is registered

and labeled indicating approved uses and restrictions. It is a violation of Federal law to use a pesticide product in a manner that is

inconsistent with the product’s FIFRA label instructions.

As long as a pesticide is applied according to this label, it has

been EPA’s longstanding interpretation that no other permit is required. Over the last few years, however, a series of lawsuits have
2

been filed to require a Clean Water Act permit while applying pesticides and fire suppressants in or around water bodies. These lawsuits have created uncertainty over how agriculture or silviculture,

water resource and municipal public health activities are to be regulated.

Farmers, foresters and local officials are now afraid they may

face a lawsuit unless they go through the burdensome process of

getting a Clean Water Act permit before using a pesticide product.

The lawsuits have gotten so out of hand that one local mosquito

control district actually sued EPA to confirm that they did not need

a Clean Water Act permit to apply a pesticide.

Requiring a permit under the Clean Water Act, in addition to an

approval under FIFRA, adds delays, costs and other burdens on

both the regulatory agencies which have to issue the permits and

those who need to get a permit without increasing environmental

protection.

The problem is the way all this regulatory burden acts on the

smallest of our landowners, the smallest of our farmers, the smallest operators in any area. The big giants can always manage, but

the ones that are being hurt by this regulatory over-burden are the

smallest of our landowners, the smallest of our farmers and other

small cities and municipal agencies.

Recognizing the overlap and redundancy and the costs between

FIFRA and the Clean Water Act, Congressman Otter and Congressman Cardoza have decided to take action and have introduced

H.R. 1749. The objective of H.R. 1749 is to try to put common sense

back into the Federal regulatory process by eliminating the duplicative regulation of pesticide products under both FIFRA and the

Clean Water Act.

H.R. 1749 aims to ensure the Clean Water Act is directed at its

intended purpose: regulating the disposal of waste and not the

proper use of a product. We first will hear today from Congressman

Butch Otter and Congressman Dennis Cardoza, two of the original

sponsors of this bill. I want to commend them for their efforts and

also welcome them to this hearing today.

We will also hear today from the Environmental Protection Agency and the State Forestry Agency and from representatives of the

agricultural community, the irrigation community, mosquito control

districts and a public interest group about their views on this bill.

Let me now turn to my good friend, the Ranking Member, Ms.

Johnson for her opening statement.

Ms. JOHNSON. Thank you very much, Mr. Chairman, and thank

you for conducting today’s hearing on the relationship between the

Clean Water Act and the Federal Insecticide, Fungicide and

Rodenticide Act, more commonly referred to as FIFRA. I look forward to a comprehensive examination of whether the Nation has

adequate programs to protect public health and safety and the environment from unintended consequences arising out of the lawful

use of pesticides and other chemicals.

Today, several interest groups will request that we approve legislation exemption pesticides and certain other chemicals from the

Clean Water Act regulatory program. Exemptions from the Clean

Water Act for known sources of water quality impairment should
3

carry the highest burden of proof. The focus of the Federal-State

commitment to water quality cannot be lost.

Just last month, as part of the Energy Bill, the President signed

into law a Clean Water Act exemption for some 30,000 construction

sites for the oil and gas industry. The exemption was enacted without consideration by this Committee and notwithstanding that

sediment run-off rate from construction sites are typically 10 to 20

times greater than those from agricultural lands and 1 to 2,000

times greater than those of forest lands.

During a short period of time, construction activity can contribute more sediment to streams than would be deposited naturally

over several decades, causing severe degradation of water and

water quality. Now the Committee is being asked to create an exemption for the application of pesticides, fire retardants and other

chemicals. Proponents seek this exemption even though pesticides

are a leading polluter in nearly 6,000 square miles of estuaries and

over 630,000 acres of lakes.

Fifteen States report that pesticides are a major source of

groundwater contamination. The water quality reports submitted

by the States clearly indicate that pesticides in waters are a problem. Any Clean Water Act exemption must address these shortcomings in current programs.

Proponents of the legislation contend that much of the justification for exempting pesticides and other chemicals from the Clean

Water Act derives from what is referred to as the Talent case out

of the Ninth Circuit Court of Appeals. While the court determined

that a Clean Water Act permit was necessary, critics of that decision tend to ignore the facts of that case.

I also point out that the Ninth Circuit just three weeks ago

issued an opinion where the use of FIFRA-registered pesticide did

not require a Clean Water permit. In Talent, the argument was

made that application of magnacide H in accordance with the label

obviates the need of a Clean Water permit. However, in Talent, the

application of the pesticide was not in accordance with the label.

The label specifically warned against any release of magnacide-H

or its toxic residue for six days into fish bearing waters or where

it will drain into them.

These label instructions were not followed, and the subsequent

death of 92,000 steelhead in nearby Bear Creek was not in accordance with the pesticide label. I do not believe that killing 92,000

steelhead is a justification for relaxing the protection of water quality.

Instead of focusing on creating additional exemptions from environmental laws, I intend to work to see that protection of water

quality, human health and the environment remains this Committee’s focus. Whether that involves the Clean Water Act or FIFRA,

or a combination of both, the goal of protection cannot change.

Mr. Chairman, I will be pleased to pursue effective programs to

address our water quality needs, as well as our need to control

pests, noxious weeds, non-native species and fires in the most efficient means. I look forward to today’s testimony. Thank you.

Mr. DUNCAN. Thank you, Ms. Johnson.

We are honored to have with us the two primary sponsors of this

legislation, as I mentioned in my opening statement, Congressman
4

C.L. ‘‘Butch’’ Otter, and Representative Dennis A. Cardoza. It is an

honor to have each of you here with us in this Subcommittee on

a members panel.

We will let you place your full statement in the record, we will

let you say anything you want to say, and then we will let you

move on, because we know how busy your schedules are, and we

have a chance to ask you questions on the floor or at other points.

We move on into other witnesses, so we won’t subject you to a lot

of questions. We will just let you make your statements and thank

you once again for your good work on this legislation.

We always proceed in the order the witnesses are listed on the

call of the hearing. That means, Congressman Otter, we will go

with you first.

TESTIMONY OF THE HONORABLE C.L. ‘‘BUTCH’’ OTTER, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mr. OTTER. Thank you very much, Mr. Chairman. It is good to

be back in this Committee room with you. While I am no longer

a member of this Subcommittee, I certainly appreciate all your help

in holding this hearing today and working with me on this important piece of legislation.

I also want to welcome a fellow Idahoan, Scott Campbell, who is

the Chairman of the Water Quality Task Force of the National

Water Resources Association. He will be testifying later today. I am

proud to represent Scott here in Congress, and I know that I could

not have done half the job that I have done in Congress without

the information and the ideas that I have received from Scott and

his associations over the years. I hope you will all listen closely and

take heart to what we has to say.

I am also pleased to be sharing the table with Congressman

Cardoza. I appreciate all his help in getting support for the Pest

Management and Fire Suppression Flexibility Act, which currently

has 70 members who have signed on as co-sponsors.

House Resolution 1749 or the Pest Management and Fire Suppression Flexibility Act codifies the Environmental Protection

Agency’s rulemaking and longstanding policies regarding the Clean

Water Act and pesticides application, fire suppression and other

pest management activities. In doing so, H.R. 1749 reaffirms Congressional intent and the long-held positions of Republican and

Democrat administrations.

Congress passed the Federal Clean Water Act in the early 1970s

in an attempt to account for an more closely regulate discharges of

municipal waste and pollutants into our national waterways from

large industrial facilities. More than 30 years later, however, Federal courts have expanded the scope of the Clean Water Act far beyond that original intent of Congress.

Today, family farmers, mosquito abatement and pest control districts, irrigators, rural water districts, Federal and State agencies,

foresters, pest and lawn care control operators and many others are

subject to the unnecessary bureaucratic permitting requirements

and nuisance lawsuits based upon misguided interpretation of the

Clean Water Act by the Ninth U.S. Circuit Court of Appeals.

In the Talent case that was referred to earlier, the court ruled

that persons applying a pesticide according to the federally ap-
5

proved label directly to or above a body of water must first obtain

a Clean Water Act permit. The court’s viewpoint in Talent blatantly disregards the comprehensive pesticide registration process

required by the primary Federal pesticide statute, the Federal Insecticide, Fungicide and Rodenticide Act, FIFRA, and the EPA review environmental effects in water quality data and approved specific uses and directions for pesticides based upon the information

that it has evaluated, a factor the district court in Talent relied

heavily upon in rejecting the suit.

Failing to use a pesticide in accordance with the EPA approved

labeling is a violation of both Federal and State laws. It has been

the operating approach of the EPA that the application of agricultural and other pesticides in accordance with label directions is not

subject to Clean Water Act permitting requirements. EPA has

never stated in any general policy or guidance that a permit is required for such application. EPA recently issued rulemakings specifically exempting pesticide application, performed according to

the label instructions, directly to, above or near bodies of water

from the Clean Water Act permitting requirements.

While rulemaking is helpful, I fear it will not stop the lawsuits.

In my home district, in Gem County, Idaho, the Gem County Mosquito Abatement District is being sued, not for having a Clean

Water Act permit before spraying. Yet the EPA refused to grant

the application for such a permit. The agency explained to the

county that no permit is necessary. But the county now has to use

its scarce resources to defend its position in court.

I would like to submit a letter from the Gem County Board of

Commissioners and have that letter submitted for the record, Mr.

Chairman.

[The referenced document follows:]
6
7
8

Mr. OTTER. By transferring regulatory primacy over pesticide use

from FIFRA to the Clean Water Act, the Ninth Circuit has authorized attorneys for activist groups to bully and intimidate farmers,

mosquito abatement districts and others in deceasing long and

widely practiced activities that have been authorized and already

are closely overseen by Federal and State agencies.

An equally important but less frequently discussed part of the

bill involves fire suppression, which is terribly important out west.

It aims to protect State and Federal firefighters from nuisance litigation by reaffirming that the use of fire retardant by or in conjunction with Federal and State firefighting agencies is not subject

to NPDES permitting requirements. This provision was necessitated by the Ninth Circuit Forsgren decision. In that case, the

court misinterpreted a longstanding EPA rule clearly stating that

the fire control activities do not require such a permit.

My district is home to the National Interagency Fire Center, the

Country’s support center for wildland firefighting. The National

Interagency Fire Center is comprised of seven Federal agencies and

State agency networks that work together to coordinate and support wildland firefighting and disaster operations.

In developing H.R. 1749 I learned that activist groups had

threatened to file a Clean Water Act lawsuit against the U.S. Forest Service for its use of fire retardants in Montana and Idaho.

Montana and many other western States are very vulnerable to

dangerous, destructive and potentially deadly wildfires. I feel

strongly that the redundant red tape and mischievous litigation

should not delay efforts to combat these outbreaks.

Moreover, the use of fire retardants already is heavily regulated.

Before approving any fire retardant for use, the Forest Service conducts an intensive two-year procedure that includes testing for the

product for aquatic toxicity. In addition, the Forest Service and the

Bureau of Land Management require a 300 foot buffer zone for use

of fire retardants near aquatic environments.

The court’s misinterpretation gives license to activist groups to

intimidate farmers, Federal agencies, State agencies and mosquito

abatement districts and to discontinuing well-established, expressly

approved and heavily regulated activities. H.R. 1749 provides needed protection against such costly and needless lawsuits.

Thank you again, Mr. Chairman and Ranking Member, for holding this hearing today. I look forward to working with the Committee to pass this legislation into law.

Mr. DUNCAN. Thank you very much. Any letter or documentation

you wish to supplement your statement with can be placed into the

record. Congressman Cardoza wasn’t here, we started two or three

minutes early. But I did say in my opening statement some of the

same things that you said, that the problem with these rules and

regulations and red tape is, they hit the little guy the hardest; the

small farmer and the small water districts.

These lawsuits are always brought by people who, most of the

time have never set foot on a farm or who have never worked with

a small water district. They really don’t understand the costs and

the problems. The big giants can take care of themselves. But a lot

of these people in these smaller rural counties and so forth, they
9

don’t have the money and the staff and the resources to fight all

this.

All right, Congressman Cardoza, we certainly want to welcome

you here and we are pleased to have you with us. You may begin

your statement.

TESTIMONY OF THE HONORABLE DENNIS A. CARDOZA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. CARDOZA. Thank you, Mr. Chairman and Ranking Member

Johnson. I appreciate the opportunity and invitation to be here.

I would just like to start out by saying I couldn’t agree more with

the statement you just made, Mr. Chairman. The small farmers in

my area get buried in paperwork on a repeated basis. Even when

they are complying with the laws and the label requirements, as

you will see in my testimony, they just get, they are always getting

into situations where they have a very difficult time.

I also want to acknowledge and thank my colleague, Mr. Otter,

for his statement at the opening and his hard work on this issue

and I want to associate myself with his remarks with regard to the

Ninth Circuit. I come from California, out west, where we have regular challenges with that particular court.

Mr. Chairman, as you may know, in the early 1970s, Congress

enacted both the Clean Water Act and the Federal Insecticide,

Fungicide and Rodenticide Act to better protect our environment

and human health. The Clean Water Act authorized EPA to safeguard our Nation’s waterways from pollutants while FIFRA governed the proper labeling, distribution, sale and use of pesticides,

insecticides, herbicides in order to protect people and the environment against adverse effects of pesticide use.

For years, these two laws worked in tandem to provide a regulatory framework for polluters and pesticides with little conflicts,

since pesticide users were exempt from obtaining Clean Water Act

permits if they were applying the product according to label directions, devised from a rigorous EPA registration process, a process

whose goal is to allow for use of a pesticide in the most environmentally friendly manner.

Unfortunately, due to two recent court decisions, as has already

been discussed, the way these two pieces of legislation interact is

now under scrutiny. In the 2001 Headwaters v. Talent Irrigation

District case, the court ruled that the irrigation district, applying

a pesticide into an irrigation canal, according to label directions,

was in violation of the Clean Water Act because it did not have a

discharge permit. A 2002 case, League of Wilderness Defenders v.

Forsgren, the court narrowed a longstanding EPA rule that exempted pest and fire control and other forestry activities from obtaining a permit for applying pesticides and fire retardants near

waterways.

The legislation before you today, introduced by my colleague,

would clear up the confusion from these court cases and other ones

that are pending and clarify that using products registered under

FIFRA and applied according to the label directions do not require

the user to obtain a Clean Water Act permit. It would not give any

user additional authority or clearance to circumvent the permit,
10

but would only maintain the status quo that has been in effect

without problem for over 30 years.

As Congressman Otter touched on the impacts of these recent

court cases on agricultural uses and fire prevention, so I would like

to direct my comments toward pest control, specifically mosquito

abatement, in order to show another sector of the economy that has

been affected by these cases.

For those of you from urban centers, you might not be as familiar

with mosquito abatement districts, but in rural counties throughout the United States, like my Congressional district, mosquito

abatement districts play an absolutely critical role in protecting

residents, crops and livestock from mosquito-borne illnesses. My

daddy spent 32 years on the local mosquito abatement board before

he died. I am very aware of some of the challenges that these

boards have.

This is especially important in California, as we are facing the

second and more deadly year of West Nile Virus infection outbreak.

As of September 23rd, 54 counties in the United States have reported West Nile Virus activity in California this year. Seven hundred and thirty-five individuals have been infected with the virus

and of that 735, there have been 15 fatalities. In addition to the

human cases, 405 horses, 2,534 birds, 832 chickens have all tested

positive for West Nile Virus.

I will tell you that just last week, one of our colleagues on the

floor came up to me and told me that one of her family members

who lives in her district had just contracted the virus. So it hits

close to home.

We are facing an epidemic in California, and it is absurd to think

now that after 30 years of regulation under FIFRA, our 61 mosquito abatement districts should be required to engage in a costly

and duplicative permitting process under the Clean Water Act in

order to continue the practice of protecting human lives.

In addition, I want to clarify that FIFRA is not the only regulatory mechanism mosquito abatement districts must comply with.

In fact, in California, mosquito abatement districts are regulated

under a number of State, Federal and local agencies, including

EPA, U.S. Fish and Wildlife, the California Department of Health

Services, the California Department of Pesticide regulation, the

California Department of Fish and Game, and each county department of agriculture, weights and measures, not to mention Proposition 65.

In January this year, EPA published a rule that attempted to address uncertainty in the regulated community of whether or not

they were required to obtain a Clean Water Act permit by clarifying that the application of pesticides in or near U.S. waters does

not require a permit because those products are regulated under

FIFRA and are not considered chemical wastes or biological materials as declared under the Clean Water Act.

While Congressman Otter and I are both very supportive of

EPA’s recent ruling, we feel that legislation from Congress is needed in order to ensure farmers, irrigators, mosquito abatement districts, firefighters, Federal and State agencies, pest control operators, or foresters, can continue performing the longstanding prac-
11

tice of pest management techniques and public health protection

activities.

I hope this Subcommittee can support the bill and provide those

entities that have a responsibility to protect the public health to

continue to do their work without threat of litigation.

Thank you very much, Mr. Chairman, thank you very much, Ms.

Johnson. I look forward to working with you.

Mr. DUNCAN. Thank you very much.

Ms. Johnson, is there anything you wish to say?

Ms. JOHNSON. No, thank you, Mr. Chairman.

Mr. DUNCAN. As I said earlier, we don’t generally ask questions

of members’ panels, so they can move on. In addition to what I

have already said, that these things hit the smallest farmers and

landowners and smallest counties, and those least able to fight all

these lawsuits, these costs have to be passed on to the public in the

form of higher prices or higher taxes. It is just, it is really sad that

we are hitting the poor and the lower income and the working people hardest of all.

Thank you very much for being with us.

We will go ahead and start now with the first panel. The first

panel will be testimony from the U.S. Environmental Protection

Agency, represented by the Honorable Benjamin H. Grumbles,

former staff director of this Subcommittee, who is Assistant Administrator for Water at the EPA. And also testimony from the National Association of State Foresters, and they are represented

today by Mr. Steven W. Koehn, who is the Director and State Forester of the Maryland Department of Natural Resources, from Annapolis, Maryland. We are certainly honored to have both gentlemen with us.

In this Subcommittee, we set the time limit for six minutes. We

ask that you come with a five minute prepared statement, but we

know five minutes sometimes, or usually, more often, takes six

minutes to get completed. We do ask that you stop, though, when

the red light comes on, in consideration of other witnesses. So Mr.

Grumbles, we will begin with you. You may give your statement.

And your full statements will be placed, all the witnesses’ full

statements will be placed in the record, along with any supplementary material that they wish to attach to their statements.

Mr. Grumbles.

TESTIMONY OF THE HONORABLE BENJAMIN H. GRUMBLES,

ASSISTANT ADMINISTRATOR FOR WATER, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY:

JAMES J. JONES, DIRECTOR, OFFICE OF PESTICIDES PROGRAM, UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; AND STEVEN W. KOEHN, DIRECTOR AND STATE

FORESTER, MARYLAND DEPARTMENT OF NATURAL RESOURCES-FOREST SERVICE, THE NATIONAL ASSOCIATION

OF STATE FORESTERS

Mr. GRUMBLES. Thank you, Mr. Chairman. Thank you, Congresswoman Johnson, as well. It is always an honor to appear before the

Subcommittee.

I would just like to say how much we appreciate, the agency appreciates the leadership that this Committee has taken on this par-
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ticular issue. Quite some time ago, you brought to our attention the

importance and the need for greater clarity and the reduction of

duplication in the regulatory process that delays or confusion could

lead to unnecessary litigation. We support your efforts to help to

prevent that, and to also ensure that water quality is protected.

I want to also note that we appreciate the efforts of Congressman

Otter and Congressman Cardoza on their legislation, bringing it to

your attention and to ours, about the need for improvement in the

regulatory process.

I am accompanied by Jim Jones. Jim is the Director of the Office

of Pesticide Programs at EPA.

I would just like to say, in the brief oral statement before the

Committee, that EPA has two offices, two programs that are involved in this issue, and my office, which has jurisdiction over the

Clean Water Act and water quality programs, and the Office of

Prevention, Pesticides and Toxic Substances with duties under

FIFRA, the statute. Our goal, Mr. Chairman, with you and your

committee members, is to reduce the potential for confusion or duplication and to also meet the requirements of the Clean Water Act

and of FIFRA.

The overarching goal and the mission for the pesticide regulatory

programs is to protect human health and the environment from potential pesticide risks while ensuring that pesticides meet today’s

more stringent safety standards and offer benefits to society. The

focus through the regulatory programs is to ensure that pesticides,

when used according to label directions, can be employed without

posing unreasonable risks to human health and the environment.

I know that many of you are aware of this, and Jim is the expert

on this, but the FIFRA regulatory process offers a thorough review

of pesticides before they are sold, distributed or used. There is a

registration process, there is a re-registration process. Environmental impacts are very much taken into account and that certainly includes water and aquatic impacts.

I think one of the issues that people are right to raise is the extent to which localized concerns about water quality impacts on a

particular lake or water body that is not necessarily mentioned or

contemplated in a label, how can local and State and other officials

ensure that those water bodies are protected. For us, the key is

working together using tools under FIFRA, as well as the Clean

Water Act.

But the bottom line that I would say to the Committee is that

for us, and what we have captured in our proposed rule, in our interpretive statement, is that if you are using a registered pesticide

in accordance with the label, and all the relevant requirements accompanying that process under FIFRA, you don’t need to get a

Clean Water Act permit. Because the Clean Water Act permit is for

discharging wastes, chemical wastes, biological materials, the focus

is on wastes. When you are using as lawfully applied and according

to the label a FIFRA product, that does not trigger the permitting

requirement under the Clean Water Act.

But the thing I want to emphasize to members, particularly this

Committee with jurisdiction over the Clean Water Act, is that

there are other tools under that Act that we fully intend and continue to use in coordination with State and local water quality offi-
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cials through the water quality standards programs, through criteria, through pollution reduction and TMDL programs. Those are

still in place.

What I would like to say is that we are very much focused in the

EPA, in the pesticides office, on ensuring that aquatic factors are

taken into account in the registration and re-registration processes,

and as labels are developed. As well, EPA is reassessing tolerances,

pesticide residue limits in food, to ensure they meet safety standards under other statutes.

With respect to the Clean Water Act, as you know, we have

issued an interpretive statement. We have also proposed a rulemaking, Mr. Chairman, to help clarify the regulatory requirements

and their relationship to FIFRA. We hope to finalize that rule very

early in the next year, or by the beginning of next year.

The guidance focuses on two specific circumstances. It basically

says that if you are lawfully applying a pesticide, and it is a direct

application to waters of the U.S., or if it is an application to control

pests over or near waters of the U.S., you don’t need a Clean Water

Act permit. We very much appreciate the efforts of the members

of Congress in proposing the legislation.

I would note, I would just simply conclude by noting that we are

supportive of the efforts to provide greater clarity with respect to

flame retardants. We are still working on components of the legislation and reviewing it, because it does go broader than our proposed rule, particularly in the areas of spray drift and also biological controls under the Plant Protection Act. But we appreciate your

efforts in those, the members of Congress, in moving this effort forward.

Thank you very much, Mr. Chairman. I would be happy to answer any questions you may have.

Mr. DUNCAN. Very fine testimony, Mr. Grumbles.

Mr. Koehn.

Mr. KOEHN. Yes, good morning, Mr. Chairman, members of the

Committee. My name is Steve Koehn, and I am the Director and

the State Forester of Maryland’s Department of Natural Resources

Forest Service. On behalf of the National Association of State Foresters, I am pleased to have this opportunity to testify before you

today on the Pest Management and Fire Suppression Flexibility

Act, introduced by Congressmen Otter and Cardoza.

As you know, H.R. 1749 would codify the Environmental Protection Agency’s longstanding position that forestry activities, aerial

use of fire retardant and application of pesticide in accordance with

its labeling do not require a National Pollution Discharge Elimination System Permit. The National Association of State Foresters

strongly endorses the bill as it would ensure our continued ability

to manage and protect State and private forest resources across the

Nation.

In 1976, EPA issued a regulation that specifically excluded nonpoint source silvicultural activities from the NPDES permitting requirements and delegate the authority for the enforcement to the

individual States. Over the past 30 years, State forestry agencies

and their local partners have developed and implemented a strong,

efficient and workable process for ensuring forestry activities, pri-
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marily timber harvesting, would not significantly degrade water

quality.

Collectively, these regulations and guidelines are known as forestry best management practices, or BMPs. These programs are

updated regularly and the States are constantly monitoring the implementation and effectiveness of their forestry BMP programs

with steadily improving progress.

In my State, in Maryland, controlling non-point source water pollution from forestry activities is a top priority of my agency. The

Maryland Forest Service, along with the Maryland Department of

the Environment, oversees the implementation of a highly effective

forestry BMP program.

My staff of more than 50 State foresters and forest rangers work

closely with land owners, loggers and the forest industry to ensure

timber harvesting meets our State’s BMP standards. The process

works efficiently and effectively, allowing loggers and landowners

to accomplish their goals while simultaneously protecting water

quality.

I am concerned that without this legislation, future legal action

may require landowners to obtain an NPDES permit prior to initiating any forestry activities. This scenario would have several detrimental effects. The permitting process would be redundant with

respect to current State forestry BMPs and it would be a prohibitively expensive step for many small family forest landowners who

only harvest timber once, possibly twice in their lifetime. The income gained from these timber harvests is often pivotal to ensuring

that landowners keep their land in forest as opposed to selling it

for development.

I am sure that many of you have seen pictures and television reports of aircraft dropping water and fire retardants on wildfires in

order to slow their spread. Fire managers often use this tool to protect houses and other properties in those areas where forests and

communities are intermingled. These areas are commonly known

as the wildland-urban interface, and are increasingly becoming

more common across the landscape in both the eastern and western

parts of our Country.

The aerial application of water and fire retardant is often an essential tool to protect life and property in these communities. This

technique is also valuable when fighting fires in more remote

areas, where initial attack access is limited. That can be a problem.

The National Interagency Fire Center, a coordination group of

seven Federal and numerous other State agencies, has developed

guidelines for the application of fire retardant to wildland fires.

These guidelines are published in the interagency standards for

fire and aviation operations guidebook, specify that aircraft must

not apply fire retardant within 300 feet of a waterway, which includes lakes, rivers, streams and ponds.

Retardant drops are usually supervised by ground personnel who

also ensure that these guidelines are followed. These guidelines

provide sufficient protection to waterways while allowing fire managers to work quickly. Once again, applying for the NPDES permitting process to fire suppression would be redundant with current

protections that are already in place, and wildly unrealistic, given

the emergency nature of firefighting in the west.
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As the stewards of more than 500 million acres of State and private forest lands across the Country, State foresters take an active

role in detecting, controlling and eradicating invasive forest pests

and pathogens. When controlling insect and disease outbreaks, it

is often very difficult or impossible to treat trees from the ground

due to their height and inaccessibility. The aerial application of

pesticides is often the best and only method for treatment in many

cases.

An example of successful aerial application in eastern forests is

our effort to control the gypsy moth caterpillar, a problem in my

State since the 1980s through the use of an organism known as Bacillus thuringiensis, or commonly known as Bt. This naturally-occurring bacterium is a parasite of the caterpillar and is effective

only during a short time during the gypsy moth’s life cycle. The larvae consume vast quantities of foliage, especially from oaks, and

weakening the trees often to the point where they become susceptible to other insects or disease.

The Maryland Forest Service, along with the Maryland Department of Agriculture’s Forest Pest Management section, works closely with private landowners and other government agencies to initiate an aerial spray program to control gypsy moth in our hardwood

forests. Since the advent of the spray program, defoliation of gypsy

moth has decreased dramatically.

The success of the program is due in large part to our ability to

move quickly and be nimble to guarantee that our window for opportunity is not missed. This bill will ensure that we are able to

continue to effectively control this and other forest pests.

We strongly support EPA’s development of a new rule to clarify

the NPDES process. But we feel that it does not go far enough. The

Otter-Cardoza bill would remove uncertainty, redundancy and complexity from the process of protecting clean water. State foresters

believe the current suite of regulatory processes is sufficient, effective and workable, and more importantly, it has successfully protected the Nation’s water for nearly three decades.

Thank you for the opportunity to testify. I would be happy to answer any questions.

Mr. DUNCAN. Thank you very much. I have already made extensive comments in my opening statement and in my remarks to

Congressmen Otter and Cardoza. So I am going to yield at this

time to Dr. Boozman, who was the first member here. Dr.

Boozman.

Mr. BOOZMAN. Thank you very much, Mr. Chairman. And thank

you for holding this hearing.

My brother was the head of the health department in Arkansas.

Fighting the West Nile virus was and is still a major undertaking.

This issue is very, very important.

Does the pesticide statute of FIFRA provide EPA with the comprehensive, effective authorities to regulate the use of pesticides?

Mr. GRUMBLES. Congressman, I would say the FIFRA statute

does provide important and necessary authorities. The Clean Water

Act provides authorities as well, and those help supplement with

respect to protecting water bodies. But when it comes to the

NPDES permitting program, what we are saying is that when the

pesticides are being applied, based on all the work and review that
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has gone into the FIFRA program and the FIFRA label, then you

don’t need a Clean Water Act permit under these specific circumstances, because it is really not a waste that is being applied,

it is a product.

But the Clean Water Act still has tools that are very important

in ensuring water quality and protection to supplement the FIFRA

program.

Mr. BOOZMAN. So I guess in light of EPA’s extensive and rigorous

program, is there any reason to regulate under the Clean Water

Act pesticides the EPA has registered under FIFRA, and if there

is, I think you are answering this, but I just want to make it clear

so I understand, and we have it for the record, is there any circumstance that we need to do that?

Mr. GRUMBLES. I think our position, and just to make sure everyone understands, we issued an interpretive statement, which I will

summarize, and we also have a proposed rulemaking to codify that,

to give it greater stature. We are going through the public comments on that. So that hasn’t been finalized yet.

But Congressman, you are right, the basic position we are taking

is that Clean Water Act permits, that type of regulation under the

Clean Water Act, is not required in these circumstances when you

are directly applying and you are using the pesticide as a product

and you are following the FIFRA program.

Mr. BOOZMAN. Thank you very much. Thank you, Mr. Chairman.

Mr. DUNCAN. Thank you very much.

Ms. Johnson.

Ms. JOHNSON. Thank you very much, Mr. Chairman.

Let me ask EPA, if this Act was enacted, would it become easier

or harder to ensure safe and reliable drinking water supply?

Mr. GRUMBLES. This Act, meaning the bill, H.R. 1749?

Ms. JOHNSON. Yes.

Mr. GRUMBLES. Would it be easier or harder to ensure safe water

supply? Well, I think, I have to say there are three or four different

pieces of the bill, and a few of those pieces, we are still reviewing.

They involve more than just a FIFRA-Clean Water Act permitting

connection.

But on the FIFRA-Clean Water Act permitting connection, we

feel that source water protection is important, and using tools

under the Clean Water Act and the State authorities under the

Clean Water Act that would still be preserved in the legislation, it

allows for an appropriate and protective approach.

Also, the important point is that it will help provide greater clarity and reduce confusion that local health officials combatting West

Nile virus or agricultural producers need in order to get their products to the market.

Ms. JOHNSON. What tools are you speaking of?

Mr. GRUMBLES. I am talking about, one of the key tools and approaches that we have as an agency and that we fully embrace,

and that is also reflected in the proposed bill, is that if a State or

local authority feels they want to have additional water quality

protections or use other aspects, separate from the Clean Water

Act permitting program, they can do so.

I am thinking about additional tools, though, Congresswoman,

under the Clean Water Act that are extremely important, and
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those are science-based criteria that we develop and are in the

process of developing more with respect to pesticides, so that we

know and in coordination with the FIFRA program can incorporate

the latest scientific information about debate on transport and impacts of pesticides.

Ms. JOHNSON. Are you aware that the Association of Metropolitan Water Agencies has taken a position against this bill?

Mr. GRUMBLES. I am not aware of their position on this bill, no.

I know the important role they play in looking at source water protection and other matters, but I haven’t seen their specific approach on the bill, no.

Ms. JOHNSON. Mr. Chairman, I ask unanimous consent to submit

this letter for the record.

Mr. DUNCAN. That may be placed in the record.

[The referenced document follows:]
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19
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Ms. JOHNSON. Are the pesticides a water quality problem?

Mr. GRUMBLES. Pesticides can in fact be a water quality problem

if they are not applied properly. That is one of the major messages

that we want to send, both the Pesticide Office and the water offices, that if pesticides are not applied according to the label and

approval process that they have gone through, they are subject to

penalties and fines under relevant statutes, including the Clean

Water Act.

Ms. JOHNSON. How is that supervised?

Mr. GRUMBLES. How is what supervised?

Ms. JOHNSON. How do you make the determination as to whether

someone is following the label or not? Would you say that pesticides do or do not affect the quality of water?

Mr. GRUMBLES. I am going to say one thing, then I will turn to

Mr. Jones with the Pesticide Program. One of the things we do at

the Federal level is work closely with State authorities, water quality authorities, and local authorities in requiring them to list impaired water bodies on a regular basis, and then to track and identify the potential sources of pollution.

So a very important part of our mission and the Clean Water Act

is to, setting aside from just the permitting program, is monitoring

and assessing the status of water bodies across the Country, and

to follow up, to see if there are problems and how best to reduce

the pollution if there is.

Jim, did you want to add on?

Mr. JONES. The pesticide labels are enforced under FIFRA largely by States. State agencies are designated and have the responsibility for enforcing pesticide use in the United States. Periodically

EPA regional offices will be involved. But the vast majority of the

enforcement occurs by States in the United States.

Ms. JOHNSON. And you depend—I think my time is about up—

but you depend on the States to monitor?

Mr. JONES. The States do enforcement of labels with EPA oversight.

Ms. JOHNSON. Thank you. I will wait for a second round.

Mr. DUNCAN. Mrs. Kelly.

Mrs. KELLY. Thank you.

Mr. Grumbles, I appreciate your joining us today to talk about

the use of pesticides and fire suppressants near drinking water. It

is an important issue and I think it deserves a lot of attention, especially what it is getting today.

But the constituents in my Congressional district are concerned

with a different, troubling drinking water industrial contaminant,

TCE. As the Assistant Administrator for Water, I am sure you are

familiar with the toxicity and the detrimental effects of exposure

to TCE. Drinking or breathing in TCE may cause nausea, liver

damage, unconsciousness, impaired heart function and bring on

near death.

In fact, in 2001, the EPA determined that TCE is actually 5 to

65 times more toxic than previously believed. Yet in spite of this

determination, and the risks that I just cited, the EPA has passed

the buck and asked the National Academy of Sciences to re-review

the finding of its 2001 assessment.
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My constituents who live at a recently-named Superfund site in

Duchess County are forced to live every day with contaminated

groundwater, soil and air. They really can’t afford to wait the years

it is going to take for an outsourced re-review. They need a clear,

national standard for addressing the TCE contamination, and they

need it now. They can’t wait, Mr. Grumbles.

The Hopewell Junction Citizens for Clean Water is a coalition

that was formed by the residents of this Superfund site. They want

the EPA to do everything within its authority to investigate and respond to this TCE contamination based on protective, provisional

standards and to finalize the draft assessment for TCE.

Let me read from a letter one of my constituents sent. She said,

‘‘People who are breathing this stuff can’t wait for the Federal bureaucracy to take action at its normal pace.’’ I want to know why

we would let red tape get in the way of a good governmental policy

which has already been established by your agency. My constituents and I feel that the EPA in New York, on the ground, has been

very helpful in working with us. The EPA here in Washington,

however, is not finalizing this draft assessment for the TCE as urgently as it needs to be done.

I am uncertain as to why this was outsourced for one more rereview. I think Americans across, I know, and you do, too, Americans across this Nation are exposed every day to TCE in their

water and air. There is no clear EPA standard for these exposures.

Can you tell me why there is not a greater sense of urgency to

finalize some sort of a national standard on TCE, and why this

can’t be expedited in relationship to the terrible health risk assessment that we already have on TCE?

Mr. GRUMBLES. Congresswoman, I appreciate your remarks and

the sense of urgency and the concerns of your constituents and others. What I can tell you is that I will certainly relay that sense or

urgency with my colleagues in the Superfund office and the Administrator’s office. I think we share your passion for source water protection and protecting water quality and the drinking water, because it involves the health of citizens. It is a public health statute

and program.

I know that we are committed to science-centered, results-oriented approaches to these water quality issues. I know that your

concerns about red tape have caused us to act in similar areas to

try to reduce regulatory confusion or uncertainty in the context of

this FIFRA NPDES permitting issue. But on this important one of

TCE, I can’t speak to the specifics of the scientific questions. But

I certainly understand the need for urgency and to try to get resolution. I would be happy to follow up with you directly on that and

confer with those in the agency who are more closely working on

the TCE challenge.

Mrs. KELLY. Mr. Grumbles, you have been in my district. You

know our water quality issues. You know that we protect one-third

of all the drinking water for New York City. You also probably

know that in this area, this new Superfund area that I am speaking of, it is part, the plume of this TCE is headed in that direction.

I know you know this district that I represent, and I know you

didn’t come here this morning to talk about TCE.
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But I hope we can work with you to get a very rapid determination. TCE is affecting many more people than just my people that

are living in this Superfund site. Those people have been fighting

for a long time. We need help, and we need help fast. I hope that

you will give it to me, and I hope that we can work, maybe you

can find something out and send me a letter, put something in

writing so we get some kind of a determination.

Mr. GRUMBLES. Certainly.

Mrs. KELLY. Thank you very much. I appreciate your consideration.

Mr. GRUMBLES. Thank you.

Mr. DUNCAN. Thank you very much. Mrs. Kelly is correct, her

issue is important, very important to her constituents and to her.

Actually, TCE does not, it is more of a Superfund issue and is not

really involved with this legislation, but I appreciate her raising it

at this point and I appreciate your response.

Mr. Carnahan.

Mr. CARNAHAN. I have no questions, Mr. Chairman.

Mr. DUNCAN. No questions. All right. Let me ask you, Mr. Grumbles, how long does it take a typical on average for a pesticide or

a herbicide to be approved by the EPA, on average? Should I ask

Mr. Jones?

Mr. GRUMBLES. I would defer to Mr. Jones.

Mr. DUNCAN. Sure. Mr. Jones.

Mr. JONES. If it is an altogether new chemical, one that we have

not before approved in the United States, it takes between two and

three years. Although recent legislation passed by the previous

Congress gave EPA a mandate to make such decisions in two

years. We fully expect to be in that situation very shortly.

If it is you are adding a new use, for example, the product may

already be approved for use on corn, and you are trying to add oats

to the label, that would take anywhere from six months to twelve

months.

Mr. DUNCAN. So the main point though is that EPA already has

a very extensive process that they put these proposed chemicals or

pesticides through now, and it has been taking two to three years

to get approval?

Mr. JONES. That is correct. We require for all pesticides to either

be registered, or if they were registered some time ago, for them

to be re-registered, a wealth of information, not just environmental

impacts, but the human health impacts of that pesticide. So for

every pesticide registered in the United States, we have a vast

array of data particular to this issue on aquatic effects of that product, probably more information around the aquatic effects of these

pesticides than exists anywhere in the world.

Mr. DUNCAN. And I understand that most of these pesticides, or

many of them, at any rate, require certified people to even apply

them. Is that correct?

Mr. JONES. If the pesticide has been designated as restricted use,

then you cannot apply, you can’t purchase, in the first place, or

apply the pesticide unless you are a certified applicator, which requires you to go through a certification program that is managed

by the State lead agency, the agencies I was referring to before as

being the chief enforcement agency for pesticide use.
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Mr. DUNCAN. And before you approve them, you of course are

making sure that they wouldn’t be harmful to the environment or

to clean water, and also if there is any danger at all, you put restrictions or limitations on some of them. Is that correct?

Mr. JONES. The standard we apply under FIFRA is unreasonable

adverse effect, which involves the evaluation of the safety of the

product for both aquatic environments, terrestrial environments

and human health.

Mr. DUNCAN. Mr. Koehn, are you aware of any data showing any

kind of widespread or significant deterioration of water quality

caused by pesticides?

Mr. KOEHN. Again, as was testified to earlier, if they are misapplied, that certainly can happen. But again, as the testimony has

already been stated, most States, I know in my State, the Maryland Department of Agriculture regulates the use of pesticides and

enforces the labeling of the pesticides. Unless they are mis-applied,

there normally is not a problem with the application of herbicides

or pesticides.

Mr. DUNCAN. So there is not only Federal regulation already,

there is State regulation as well?

Mr. KOEHN. Yes, Mr. Chairman.

Mr. DUNCAN. Do you know of any cases of people that are using

pesticides or herbicides that have not been approved?

Mr. KOEHN. Not in my experience. I mean, when we are talking

about dealing with forest pests, we are normally dealing with contractors, larger outfits, they are all licensed, they are all bonded,

they know the regulations, they are very familiar with the application of procedures and processes. So that has been an experience

that I have had.

Mr. DUNCAN. How long have you been working in this field?

Mr. KOEHN. Twenty-one years.

Mr. DUNCAN. All right, well, thank you very much, you have all

been very helpful and informative witnesses. Ms. Johnson?

Ms. JOHNSON. Yes, Mr. Grumbles, does the EPA favor enacting

this legislation for clarity?

Mr. GRUMBLES. Does the EPA favor enacting this legislation?

Ms. JOHNSON. Yes.

Mr. GRUMBLES. Congresswoman, we don’t have a formal or official position on the legislation. Parts of it involve other agencies,

and those other agencies are continuing to review it.

I can tell you that I think—

Ms. JOHNSON. I am just speaking about EPA.

Mr. GRUMBLES. Yes. From my perspective, there are pieces of

this legislation that would be helpful. There are components of it

that are also, to the extent they are consistent with our proposed

rulemaking, we are supportive of.

We are still reviewing other pieces of it and we do support the

overall notion of harmonizing, better harmonizing the two statutory programs while ensuring water quality is protected.

Ms. JOHNSON. What other agencies are you speaking about?

Mr. GRUMBLES. Well, the Department of Agriculture has certainly an important role in the lot of the provisions and aspects of

this bill. And we certainly want to coordinate. We are also interested in getting views of the stakeholders.
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We find it is important, as we read through the 1,500 plus comments on our proposed rulemaking, to be able to look at the lessons

from those comments and use those to inform us in our review of

the proposed legislation.

Ms. JOHNSON. Does any other agency besides EPA have the authority to enforce the Clean Water Act?

Mr. GRUMBLES. The Army Corps of Engineers certainly does. We

also work very closely with the Department of Justice. We work

closely, there are other agencies that are involved in implementing

the Clean Water Act that we work closely with, the Department of

Agriculture and Department of Interior.

Ms. JOHNSON. But EPA has the authority to enforce the Clean

Water Act?

Mr. GRUMBLES. Yes, we do, and it is an important part of our

mission.

Ms. JOHNSON. Thank you.

Mr. DUNCAN. All right, well, thank you very much. You can see

from the more than 1,500 comments you have received and various

other things, this is a much more important issue than a lot of people realize. We appreciate your being here with us this morning.

Thank you very much.

We will now call up the second panel. This panel consists of a

representative of the American Mosquito Control Association, Mr.

David Brown, who is manager of the Sacramento-Yolo Mosquito

and Vector Control District, from Elk Grove, California; representing the National Water Resources Association, Mr. Scott Campbell,

who is chairman of the Water Quality Task Force from Boise,

Idaho; representing the American Farm Bureau Federation is Mr.

Edward R. Flanagan, who is the president and CEO of the Wyman

Farms; and representing Beyond Pesticides/NCAMP is Ms. Shawnee Hoover, who is the special projects director for that organization. She is from this city, Washington, D.C.

We are appreciative that all of you would take time out of your

very busy schedules to be with us today, especially those of you

who have traveled long distances to be here. We do proceed with

the witnesses in the order they are listed on the call of the hearing.

I will say, as I said earlier, all of your full statements will be

placed in the record. Every other subcommittee asks that witnesses

limit their statements to five minutes. In this Subcommittee, we

give six minutes. But we do expect you to quit after six minutes

in consideration of other witnesses and also the members.

So if you see me pick up this and start waving it, I usually try

not to pound it, but if you see me waving it, that means stop.

[Laughter.]

Mr. DUNCAN. Thank you very much. Mr. Brown.
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TESTIMONY OF DAVID BROWN, MANAGER, SACRAMENTOYOLO MOSQUITO AND VECTOR CONTROL DISTRICT, AMERICAN MOSQUITO CONTROL ASSOCIATION, ACCOMPANIED

BY: KARL MALAMUD-ROAM, CHAIRMAN, LEGISLATIVE AND

REGULATORY COMMITTEE; AMERICAN MOSQUITO CONTROL

ASSOCIATION; SCOTT L. CAMPBELL, CHAIRMAN, WATER

QUALITY TASK FORCE, NATIONAL WATER RESOURCES ASSOCIATION, INC., ACCOMPANIED BY: NORM SEMANKO, PRESIDENT, NATIONAL WATER RESOURCES ASSOCIATION AND EXECUTIVE DIRECTOR, IDAHO WATER USERS ASSOCIATION;

EDWARD R. FLANAGAN, PRESIDENT AND CEO, JASPER

WYMAN AND SON, AMERICAN FARM BUREAU FEDERATION;

AND SHAWNEE HOOVER, SPECIAL PROJECTS DIRECTOR, BEYOND PESTICIDES/NATIONAL COALITION AGAINST THE MISUSE OF PESTICIDES

Mr. BROWN. Good morning, Mr. Chairman and Congresswoman

Johnson. My name is David Brown and I am the past president of

the AMCA, or American Mosquito Control Association. I am also

the manager of the Sacramento-Yolo Mosquito and Vector Control

District in California.

I have with me today as well Dr. Karl Malamud-Roam, who is

the chairman of our legislative and regulatory committee, and may

offer some help in terms of answering some questions later.

The district I represent in California has been sued for alleged

Clean Water Act violations regarding our district’s response to a

West Nile virus outbreak in California. The suit concerns the very

issues which this Committee is considering today.

The AMCA supports H.R. 1749, because mosquito control districts have seen a significant number of legal challenges, at least

four, involving a number of circuit courts, to mosquito control efforts that are needed, that are recommended by Centers for Disease Control, and use products that are approved by EPA to combat West Nile virus.

The proposed legislation would clarify for the courts that Congress recognizes that our pesticide applications, when made in accordance with the relevant provisions of the EPA-approved labeling, are not pollutant discharges, and do not need an NPDES permit.

To be clear, the AMCA also supports the goals of clean water.

However, the NPDES permit process of the CWA is not the best

way to protect water quality relative to the approved and authorized applications of pesticides. In fact, since the inception of both

FIFRA and the CWA in 1972, the two Acts have worked remarkably well together. Therefore, we believe NPDES permits are not

required for the applications of pesticides for the following reasons.

First, the current system works. Modern mosquito control pesticides, applied by trained and certified technicians in California,

have been repeatedly evaluated and have been shown to not cause

detrimental impacts on aquatic ecosystems. Mosquito control products are environmentally benign, both because of their low inherent

toxicity and because they are applied in such small quantities,

often not more than one ounce per acre.

Larvacides applied directly to water have minimal non-target effects, and adulticides applied over or near waterways either do not
26

enter the water or do so in negligible quantities when applied according to the labels.

Second, the FIFRA label system is flexible enough to accommodate change when needed to ensure that aquatic sites are protected

by the labels. For example, the mosquito adulticide labels are currently being updated to clarify droplet sizes and reapplication periods. The risk assessments for these products under FIFRA are frequently updated with the best available science, and EPA’s Office

of Pesticide Programs has significantly expanded its review of potential impacts on threatened and endangered aquatic organisms.

Third, the NPDES system would be duplicative of FIFRA protections, expensive and inappropriate for our pesticide applications.

We apply pesticides not at single points of discharge, such as industrial outfalls, but at thousands of different sites relative to effective mosquito control.

As an example, my district’s monitoring costs this summer ex- ceeded $50,000, even though the pesticides used were at or below

the detection limits of the chemical test, which is much lower than

the levels where they would cause harm.

As you heard previously, EPA has recently issued an interpretive

memo on proposed rulemaking on this issue, outlining its position

that our pesticide applications for mosquito control are not pollutant discharges and do not require NPDES permits. AMCA strongly

supports the adoption and finalization of this rulemaking.

Unfortunately, not everyone has agreed with EPA on this position, which leads us to the biggest problem for mosquito control

and the need for prompt action. The courts require clarity on the

relationship between pesticide regulation and the protection of

water quality because of abuses of the citizen suit provisions of the

Clean Water Act. This Subcommittee recently heard testimony on

the potential for frivolous lawsuits abusing the Clean Water Act,

forcing government agencies that were performing critical work

and complying with appropriate laws to spend time and money defending themselves in Federal courts.

Unfortunately, this problem has not gone away. For example,

when New York City was faced with the first cases of West Nile

virus on the western hemisphere in an outbreak in 1999, the city

responded in a manner which CDC and all reputable public health

officials have supported. To this day, the city is still in the Federal

courts, defending itself against the charge that they sprayed without an NPDES permit even though no government agency ever had

required such a permit for mosquito control spraying in the long

history of the Clean Water Act and FIFRA.

Even thought U.S. EPA has repeatedly stated that no permit is

needed for the work done by New York City, and even though no

harm was shown to aquatic organisms from the spraying, the city

is still in court, spending time and money defending the use of

emergency actions it undertook. More recently, Gem County, Idaho

was sued for mosquito control spraying and threatened with

$25,000 per day fines if they used pesticides to protect their citizens from mosquitos and West Nile virus.

Unfortunately for Gem County, it is impossible to obtain an

NPDES permit for the use of aquatic pesticides in Idaho because

the State does not issue NPDES permits and because U.S. EPA,
27

which does issue the permits in the State, has held that mosquito

control spraying does not require permits. Thus, a small public

health agency faced with a potential outbreak of fatal disease and

seeking to follow CDC’s recommendations to stop the outbreak is

caught between the proverbial rock and hard place.

Finally, this summer, the district I manage had to respond to an

outbreak of West Nile virus that had placed dozens of citizens in

local hospitals. My job is to prevent a massive outbreak of the disease in the epicenter of the epidemic here in California. I provided

extensive information on where and when we would spray, so that

people could avoid the spraying if they had particular concerns.

But I was sued in Federal court the day we planned to start the

spraying, because I did not have an NPDES permit for my aerial

applications of pesticides to control infected adult mosquitoes with

West Nile virus.

As an aside, if the conditions that currently exist in New Orleans

happened in California, we would not be able to treat for the mosquitos coming from those flood waters without threat of litigation

or restraining orders.

In summary, my colleague Joe Cowan told you three years ago

about the West Nile virus outbreak that was spreading across our

Country and how the good intentions of the Clean Water Act were

obstructing the reasonable response to the disease. Unfortunately,

though other news has dominated the national media over the intervening years, the disease has continued to sicken thousands and

kill hundreds of Americans. Also unfortunately, the Clean Water

Act is currently being interpreted by the courts as still an impediment to protecting our public health.

Thank you for the opportunity to voice my concerns, and I will

look forward to questions.

Mr. DUNCAN. Thank you very much.

Mr. Campbell.

Mr. CAMPBELL. Thank you, Mr. Chairman, members of the Committee. My name is Scott Campbell, I am a resident of Boise, Idaho

and have been a licensed attorney for 27 years. I have practiced in

the areas of water rights, natural resources and environmental law

for over 20 years. I presently serve as the chairman of the Water

Quality Task Force of the National Water Resources Association

and am appearing on behalf of the Association and all of its 17

western State member associations.

I also have sitting behind me Mr. Norm Semanko, who is president of the National Water Resources Association, and executive director of the Idaho Water Users Association.

H.R. 1749 is critically important legislation. Because of activists’

litigation and inaccurate judicial reasoning, Federal appeals court

decisions over the last four years have produced a number of erroneous interpretations of the language of the Federal Water Pollution Control Act.

Agriculture has been dramatically impacted in the States where

the Ninth Circuit has rendered these decisions. Irrigated agriculture production suffers the most direct and costly impacts. The

effective delivery of water requires periodic treatment of surface

water canals and ditches to reduce growth of moss and other

aquatic plants. Non-treatment will force water delivery reductions,
28

resulting in crop loss or crop failure, water blockage, which can

cause flooding of facilities and adjoining lands, and the inability to

operate regulation devices to properly control water.

The so-called Talent decision concluded that EPA-approved

aquatic herbicides, used in irrigation canals, were required to have

an NPDES permit. Before the Ninth Circuit decision, an NPDES

permit for such activities had never been required by the Environmental Protection Agency.

In Idaho, because it is a non-delegated State, that is, the State

does not have the delegated regulatory authority under the Clean

Water Act, it is impossible to get an NPDES permit for the application of these aquatic herbicides, because EPA does not believe the

Clean Water Act should require such permits. Consequently, in

Idaho, a Ninth Circuit State, any applicator of those chemicals is

subject to a Clean Water Act violation, yet they cannot obtain the

permit. The same Gem County situation: rock and a hard place.

Because of these erroneous decisions by the Ninth Circuit and

other circuits of this Country, personnel costs have increased due

to the extremely stringent monitoring requirements where they can

obtain permits in some of the other States. Additionally, the large

expenditures of funds for attorneys and consultants to assist irrigation entities and private landowners in obtaining the permits, an

unnecessary cost that just places unnecessary burden upon production agriculture and individuals. Any violation of an NPDES permit

that is issued results in a violation of the Clean Water Act and

subjects the person to enforcement actions by the State agencies or

citizen environmental activist organizations that pursue many of

these cases just to obtain the citizen suit attorney’s fees and the

publicity.

In addition to the impacts to these entities, water delivery systems for municipalities and recreational water bodies are affected

by these incorrect judicial interpretations. Any open storage reservoir for municipal water systems are subject to these decisions,

thereby mandating NPDES permits for treatment of water in those

facilities.

Most significantly for the general public, lakes, ponds and other

water bodies for recreation are less likely to be treated for nuisance

aquatic vegetation or invasive aquatic plant species. Without effective herbicide treatment, these non-native invasive plant species

can totally destroy the recreational value of water bodies. Additionally, they restrict and diminish the quality of aquatic habitat for

native fish and aquatic life.

Congress has the opportunity to solve the problems created by

these erroneous judicial interpretations. H.R. 1749 provides unambiguous clarification of the meaning of the Clean Water Act to

counter this spate of inaccurate decisions.

I encourage the members of the Subcommittee and the full Committee to restore the Clean Water Act to the proper balance which

existed since its adoption until these judicial misinterpretations

tilted the playing field so dramatically. Common sense suggests

that the wise use of beneficial chemical products, in accordance

with label restrictions previously adopted by EPA, is more than

adequate to protect the environment and allow the human population to obtain the benefits of these pest control substances.
29

Control of West Nile virus, protection of forest health, continued

functioning of vastly productive irrigated farm lands and preservation of recreational water bodies are beneficial goals which should

not be unnecessarily precluded or hindered simply because of activist litigation and mistaken judges.

On behalf of my clients and the member State associations of the

National Water Resources Association, I strongly urge passage of

H.R. 1749. Thank you for the opportunity to address you on this

critically important piece of legislation.

Mr. DUNCAN. Very fine testimony. Thank you very much.

Mr. Flanagan.

Mr. FLANAGAN. Chairman Duncan, Ranking Member Johnson

and members of the Committee, my name is Ed Flanagan. I am the

president and CEO of Jasper Wyman and Son, a family-owned

blueberry operation founded in Milbridge, Maine in 1874. Wyman’s

is also a grass roots member of the American Farm Bureau Federation, the Nation’s largest general farm and ranch organization.

I am grateful for the chance to present this testimony on behalf

of thousands of threatened farmers nationwide. Let me get right to

it.

Wild blueberries are wild because they have never been planted.

They are a root system that has been indigenous to the sandy glacial souls of downeast Maine for thousands of years. A wild blueberry crop takes two years to grow, so in any given year, half of

our land is cropping and the other half is sprouting for the following year.

Wild blueberries are not a high chemical use crop. The fruit has

natural disease resistance due to its high acidity. However, weeds

compete for nutrients and block efficient harvesting, so the use of

herbicides is imperative to commercial crop success.

Pesticides are needed to control outbreaks of leaf-eating caterpillars and fruit fly infestation that can reduce yield and quality. Further, because wild blueberries grow low to the ground, they are vulnerable to fungal diseases during the wet weather of the spring. A

crop with two years worth of investment can be lost to blight in

two weeks of wet weather in May unless the fields are quickly and

efficiently treated with a fungicide.

During the 1980s, the wild blueberry industry became early

adopters of integrated pest management. Through field scouting

and target applications, our industry reduced the use of pesticides

by 80 percent. To put it in perspective, a wild blueberry field now

receives 300 to 400ths of an ounce of total chemicals per square

foot over the course of two years.

For the 2005 crop, pesticide residual testing, which we do each

year, indicated that the highest level of chemical found in any sample was 45 times below the EPA’s limit for that chemical.

When Wyman’s uses aerial application for crop protection, we

also employ ground scouts to communicate with the pilots in wind

speeds and air inversions. The planes spray no more than 10 to 15

feet from the ground and do not fly at wind speeds in excess of 10

miles an hour.

A key advantage of aerial spraying is the ability to use one licensed chemical handler to handle all treated acres. Another key
30

advantage of aerial is the fact that wild blueberries do not grow in

rows, and the wheels of ground-based sprayers crush the fruit.

In 2000, Wyman’s participated voluntarily in a State board of

pesticide control study of aerial spray drift into waterways. Detections varied from zero to values of 11/110ths to 94/100ths of 1 part

per billion, and 3,400 nanograms, which is a billionth of a gram.

We believe these results to be positive evidence of our stewardship

of our land.

The BPC published the results on a web site and a group of environmental organizations issued notice of 60 day intent to sue for

violating the Clean Water Act, regardless of the amount detected.

We asked ourselves, if we can get sued for voluntarily working with

Government, why would we? Furthermore, by filing a citizen suit,

the environmentalists can have their legal expenses paid by us if

they prevail. But if we prevail, we cannot petition for our legal expenses. That is tremendously discouraging bias and should not be

the way.

The very day that the environmentalists received notice that the

Maine Department of Environmental Protection, that no permit

under the Clean Water Act was legally required, we received their

notice of intent to sue. In other words, Wyman’s was to become the

guinea pig in the activists’ attempt to gain power over agriculture

through litigation.

Aware that the EPA was in the process of rulemaking and that

Congress was finally looking seriously into this issue, we discontinued aerial spraying, we leased two boom sprayers and we introduced our growers to a helicopter spray service to replace the coverage we offered. After a disastrous 2004 crop and booming sales

in blueberries, we desperately needed a good crop in 2005. When

a very wet month of May ensued, two critical treatments for blight

were necessary in a very narrow window of time. Wyman’s was

able to get most of its fields covered with its boom sprayers.

Maine’s small growers, of which there are 400 in Maine, unable

to afford or coordinate with aerial sources and handicapped from

using mist blowers due to wet fields and availability, suffered

losses to their crop of 50 percent or more, mostly due to blight. In

addition, we estimate our loss to the wheels of the boom sprayers

at 6 percent of our crop.

Adding up the impact on the State of Maine, we estimate a farm

gate loss of $10 million and a critical inability to meet a demand

that we have worked years to create. In our opinion, the environmentalist agenda goes beyond the elimination of aerial spraying. It

seeks the elimination of pesticides.

Let me give you an analogy. At age 54, I now see a cardiologist

each year. His profession recommends an 81 milligram aspirin each

day for heart health. And if you have a headache or body aches,

two aspirin has given relief for over 100 years. You take 50 aspirin,

though, you’re dead.

The environmentalist perspective applied to aspirin is, if 50 will

kill you, then 81 milligrams is bad, too. And that is as wrong for

aspirin as it is for the safe, regulated use of pesticides. Congress

owes it to American farmers and consumers to not leave us vulnerable to abuse of the Federal citizen suit privileges and blackmail

by litigation. The plight of Maine’s wild blueberry growers is evi-
31

dence this year enough that Congress must step in and take fast,

decisive action to clarify Federal law and preserve a farmer’s right

and ability to provide a safe, affordable food supply.

On behalf of Wyman’s, Maine blueberry growers and farmers

throughout the Nation, please pass the Pest Management and Fire

Suppression Flexibility Act this year so that agriculture can get

back to business without fear of litigation. Thank you for listening

to our story, and I am happy to answer any questions.

Mr. DUNCAN. Thank you, Mr. Flanagan. Thank you for coming

down from Maine to represent the American Farm Bureau Federation.

Ms. Hoover.

Ms. HOOVER. Mr. Chairman and members of the Subcommittee,

thank you for the opportunity to appear before the Subcommittee

today. I am Shawnee Hoover, Special Projects Director of Beyond

Pesticides.

Beyond Pesticides was founded almost 25 years ago, and is a national environmental health organization with a grass roots membership base representing thousands of people, with partners extending well into the hundreds of thousands.

The legislation we discuss today turns on the central question of

whether or not the Federal Insecticide, Rodenticide and Fungicide

Act, or FIFRA, through its registration and labeling process of pesticides, can adequately replace the role of the Clean Water Act and

its regulatory enforcement mechanism, the National Pollutant Discharge Elimination System, or NPDES, permit process.

More than three decades after the Clean Water Act was enacted,

the Nation’s waters continue to be polluted. Pesticides are one of

the main sources of this pollution, as State monitoring and the U.S.

Geological Survey reports continue to inform us. We feel that neither pesticide users, the public nor the environment are well served

or better protected by this bill.

There are three main reasons why sole reliance on FIFRA does

not offer adequate protection of water, the environment or communities across the Country. Under FIFRA, EPA does not take into

account unique, local conditions when regulating risk and designing labels, and has no official mechanisms to do so. Direct deposition of pesticides to waters occurs even when the label is properly

followed. Third, the risk assessment process used to register pesticides under FIFRA has admitted limitations that create the need

for complementary laws.

Before proceeding, I would like to ask the members of the Subcommittee to keep in mind that I am but a messenger. I speak on

behalf of my organization, but my views are representative of a

much larger network of stakeholders that include community residents, health professionals, scientists, farmers, sport fish and bee

associations, public health officials and of course, water groups and

those seeking to protect our environment.

As mentioned, there have been several Federal court cases concerning this precise issue. Those who have ruled have ruled in

favor of the use of NPDES permits. I will not go over the specifics

of each statute, though it is important to note that EPA did submit

an amicus brief in the Talent case agreeing that a NPDES permit

was required in addition to following the FIFRA label.
32

EPA’s risk assessment process that determines label requirements under FIFRA operates in a national context, using

probabalistic modeling that averages risk factors and assumes full

label compliance that does not include non-target impacts that

occur from pesticidal drift, runoff, and other unintentional exposure. The Clean Water Act NPDES permits work in tandem with

FIFRA to consider local environmental conditions and the specific

impacts of pesticide application to local water bodies.

NPDES permits under the Clean Water Act are highly local and

specific and include monitoring and reporting requirements that

contract which pesticide applications may occur and when. FIFRA

has no tools to monitor local situations that are happening on the

ground and to collect such information.

The Congressional Research Service report on this issue plainly

stated that the NPDES permits under the Clean Water Act are undertaken by States to protect water quality ‘‘because the Federal

Government lacks the resources for day to day monitoring and enforcement.’’ EPA’s risk assessment process by nature is insufficient

to protect waterways for a multitude of reasons. The labels for the

vast majority of chemicals do not address off-site, non-target effects, sub-lethal effects or pesticidal drift that can be more deleterious than the lethal concentrations stated on the label. These limitations can, however, be mitigated with enforcement of other statutes, such as the Clean Water Act.

The EPA risk assessment also considers only the effect of the active ingredient and not the synergy of the multiple ingredients in

the actual pesticide formulation or between pesticides. NPDES by

nature of its monitoring and reporting provisions can assess the effect of the actual pesticide formulation on local water body ecosystems.

Third, the re-registration of pesticides under FIFRA is a lengthy

and ongoing process, as you have heard today. Hundreds of pesticides currently registered and commonly used unfortunately still

lack a full assessment of their potential short and long term effects

on human health, particularly on children and the environment.

Case in point is the lack of EPA evaluation of pesticide’s capacity

to cause endocrine or hormonal disrupting effects.

Section 2 of the FIFRA statute furthermore denotes that EPA

may consider the risks and benefits of the public health uses of

pesticides separately from the risks and benefits of other pesticides.

It must be made clear, however, that to date the agency has never

done such an assessment of public health uses. In addition, the

agency also has not evaluated the efficacy of the pesticides used in

the context of public health as required by law.

EPA, under FIFRA, presumes that if the label is complied with,

there will not be any unintentional pesticide exposure to water,

such as runoff and drift. NPDES permits under the Clean Water

Act can assess the realities of pesticide runoff, drift, harm to specific local species and ecosystems and other issues central to overall

water quality.

While we do not underestimate the importance of protecting the

public from mosquito-borne disease, we do believe that there are

many ways to do this, as supported by the Centers for Disease Control and Prevention, without removing the vital protections af-
33

forded by the Clean Water Act. I have attached for the Subcommittee Appendix A which gives some examples of mosquito management techniques that have served to simultaneously protect the

public from mosquito-borne disease as well as exposure to pesticides.

It should be noted that a related recent guidance by EPA to

change the labels of mosquito pesticides without having completed

its legal obligation to determine if the label changes will result in

unreasonable harm to human health or the environment has further weakened our confidence in the protections—

Mr. DUNCAN. Ms. Hoover, I have let you go one minute longer

than any other witness, so I will ask that you use 30 seconds to

wrap it up.

Ms. HOOVER. Okay, very good, thank you, Mr. Chairman.

Finally, it is important to note that the EPA Assistant Administrator for Water has stated that drinking water will be adversely

affected by the spill and that the burden of cost will fall unfairly

on local communities to do cleanup of these pollutants.

Thank you for the opportunity to testify today. I value the exploration of the Subcommittee to seek improvements in public health

and pest management approaches. Thank you.

Mr. DUNCAN. Thank you very much for your testimony.

Ms. Johnson.

Ms. JOHNSON. Thank you very much.

Mr. Flanagan, you indicated that small farmers were the ones

who were going to be affected most in a negative fashion. We have

had, I have had some correspondence from small farmers that complain about drift from others. And the organic farmers are not supportive of this legislation. Have you had any conversation with any

of them?

Mr. FLANAGAN. With organic farmers, no, I have not. There are

not many organic wild blueberry farmers in Maine. But I can tell

you there was an article in the Bangor Daily News at the very beginning of August on the leading organic farmer. His basic comment was, the story was that he wasn’t opening for business this

year, because nature took his crop. I would say he has perfectly got

his right to farm organically and incur that risk.

When a crop only happens every two years, you don’t get another

shot at your crop for two years, then. For us, we would love to do

organic farming if it was commercially viable. But with the way

blueberries grow, low to the ground, we don’t see this as feasible.

Ms. JOHNSON. Thank you. That’s all for now, Mr. Chairman.

Mr. DUNCAN. All right, Dr. Boozman.

Mr. BOOZMAN. Mr. Brown, with the aftermath of Hurricane

Katrina, including the stagnant water, can you comment about the

breeding grounds, what is going on to address this potentially serious problem?

Mr. BROWN. Certainly with the life cycle of mosquitoes, they require water to start their life cycle. With the amount of acreage

that has been flooded there, I am aware that CDC has already

gone out there and started to conduct mosquito control efforts to

try to reduce the mosquito population. I know there have been reported incidents of biting rates of over 100 per minute. Clearly, the

need for effective mosquito control is not only being endorsed by
34

Centers for Disease Control right now, but is being performed in

conjunction with Centers for Disease Control right now in that

area.

Mr. BOOZMAN. So you feel like those steps are adequate?

Mr. BROWN. I think relative to what this Committee is hearing,

and perhaps to put it in context that if that were to happen out

in California, I am not sure that we would be able to conduct those

exercises that are being conducted right now out there without

threat of litigation or restraining orders, in light of NPDES permit

processes.

In terms of it being adequate, I haven’t seen the results of the

treatments, but I have the confidence in Centers for Disease Control as they are conducting those that they will be able to reduce

the adult mosquito population by conducting both aerial

adulticiding and larvaciding operations.

Mr. BOOZMAN. Mr. Campbell, is the NPDES permitting process

practical for pesticide users?

Mr. CAMPBELL. I would say that it is, practical is a very general

term. If you mean practical in the sense of, can a pesticide user

eventually get an NPDES permit in the States that have delegated

authority, maybe, if they are willing to spend thousands, tens of

thousands of dollars and wait, in some cases years, before they can

get the permit.

Now, in reality out there, that kind of a circumstance will put

people out of business or will, if they are successful in getting a

permit, foster additional litigation. For example, in the State of Oregon, where they do have NPDES permits issued by the State, the

Talent case came from Oregon. In that particular State, after they

got an NPDES permit for all of the irrigation uses of magnacideH and other aquatic herbicides, the environmental activists sued

the State, claiming the NPDES permit was illegal.

So even though they complied with the new judicial interpretation, which I think is erroneous, that wasn’t good enough. So the

reality is, is it practical? I think it just engenders more litigation

and more costs for the productive members of society. As a lawyer,

from my professional standpoint, it is wonderful news. But from

the standpoint of society as a whole, and the economics of this

Country, I think it is a travesty. I think Congress needs to do

something about it.

Mr. BOOZMAN. Thank you, Mr. Chairman.

Mr. DUNCAN. Thank you very much, Dr. Boozman.

Mr. Baird, you don’t have any questions?

Mr. BAIRD. No, thank you, Mr. Chairman.

Mr. DUNCAN. Ms. Norton?

Ms. NORTON. No questions, thank you, Mr. Chairman.

Mr. DUNCAN. Ms. Johnson, do you have any other questions or

comments?

Ms. JOHNSON. Nothing, thank you, Mr. Chairman.

Mr. DUNCAN. Let me ask you, Mr. Brown, the West Nile virus

has become quite a problem in California and a lot of western

States. We have a comment here from the California State health

chief who has said she is quite certain there would have been more

illness and death or there will be more illness and death associated

with the West Nile virus.
35

Has that disease rate decreased since you began to more aggressively treat for adult mosquitos?

Mr. BROWN. Based on the results that we received, and I can relate that to Sacramento and Yolo County, that’s were my district

exists, we were seeing an increased case load. When we did perform the adult mosquito control operations, we did see a significant

reduction in both the infected mosquitos and in the adult mosquito

counts within the areas where we did our treatment.

In answering your question directly, in terms of the caseloads,

were they reduced, we believe that based on the information we

were getting we will see that. However, because of the lag time between when a case is, the onset of a case and when it is report,

I can’t give you a specific or definitive answer on that yet. We are

certainly tracking that very closely with our health officer as well.

Certainly by implications of reducing both the adult mosquito

counts and the infected mosquitos in the area, we do believe we

will see a reduction in the human case load after our treatment.

Mr. DUNCAN. I guess you never thought you would be sued by

environmentalists for trying to keep them from getting West Nile

virus.

Mr. BROWN. No, sir. In fact, in California, we do have an NPDES

permit process, and in fact, after intense negotiations with the

State of California, my district has an application, or has an

NPDES permit for the application of aquatic larvacides.

However, when I needed to make an adulticide application to immediately and effectively reduce an infected adult mosquito population, I was sued in Federal court because I could not get an

NPDES permit because I am not making direct applications to

water. So yes, it was a bit disconcerting to try and protect public

health in the most effective and efficient means and in the endorsed methods from both CDC and using approved products by

EPA, and find myself in Federal court, trying to protect public

health.

Mr. DUNCAN. How common is the misapplication of pesticides in

the control of mosquitos? Is it common?

Mr. BROWN. The short answer is, it is not common at all. We all

undergo extensive training and certification through, as has been

mentioned earlier, in the State of California through the Department of Health Services, in conjunction with the local agricultural

commissioners. So it is not often at all, if at all, those mis-applications of pesticides occur from trained and certified mosquito applicators.

Mr. DUNCAN. Mr. Campbell, expanding on Dr. Boozman’s question about is it practical to get an NPDES permit; you basically

said it’s cumbersome, costly, and very time-consuming. You said

that it would take many thousands of dollars, and probably several

years. That’s the point I was trying to make earlier when I said

maybe the big giant companies and operations and farmers and

others can go through that. But these regulations are the hardest

and hit the small landowners, the small farmers, the rural counties; the very people who are least able to go through that process.

Is that not correct?

Mr. CAMPBELL. Mr. Chairman, I can say that is absolutely correct from my own personal experience. I represent irrigation dis-
36

tricts, farmers, ranchers, other water users in the State of Idaho

on water resource issues. After the Talent case came out initially,

I was contacted by one of my clients who operates a small ditch

company, less than 1,000 acres of irrigated crop land, with major

concerns about their liability under this decision. They said, well,

we have to treat or we can’t get water delivered. What do we do?

The fact that they had to come to an attorney who specializes in

water resource issues for advice was troubling enough to them. But

when I told them that until there is some clarification from EPA

as to whether or not this applies in the State of Idaho, which is

not a delegated State, and has the authority to issue the permits.

In Idaho, you can’t go to the State Department of Environmental

Quality and get one of these NPDES permits.

So they would have to go to EPA to get the permit and EPA says

no, they are not required. So like Gem County, you are in a situation where you either use the chemical so you can continue to deliver water the same way you’ve done for 100 years, and face liability from a citizen suit, because of the Ninth Circuit decision, or on

the other hand, not make the application and not get your water.

So it is a completely inappropriate circumstance. It is something

that Congress never intended when it passed the Clean Water Act.

The reality is, the requirement to force an NPDES permit for all

these applications is, it is not because the users of pesticides are

abusing the system or causing problems out there, it is because the

Clean Water Act provides the mechanism for citizen suits to shut

down these activities, the irrigated agriculture, the protection of

forest health, etc. I think that is the real agenda out there.

If Congress had intended this result, it could have clearly specified that. It did not. It passed FIFRA instead.

Mr. DUNCAN. Well, also, there was some mention about invasive

species and the problems that occur there. Is that messing up or

making our water bodies worse?

Mr. CAMPBELL. Well, Mr. Chairman, exactly. In fact, the invasive

plant species, Eurasian milfoil, purple loosestrife, are choking lakes

and other water bodies, so that they cannot be used for recreation,

they cannot be used for habitat of native fish species the way they

previously have been. If you eliminate the ability to use FIFRA-approved aquatic products to control these invasive species, you will

dramatically change the environment, because you haven’t used

the tool that has been approved by EPA for the control of these

invasive species. If Congress wants that to continue, then you

should not pass the bill.

Mr. DUNCAN. Mr. Flanagan, you mentioned that you are representing a little over 400 blueberry farmers from Maine, and that

they suffered losses of $10 million because of problems in this regard. And I mentioned that it is the smallest operations that have

the most trouble.

But also, if we don’t use these pesticides, you cited the example

of the organic farmer that you know about who lost his crop entirely. That is going to decrease the availability of blueberries and

other crops. What is that going to do? That is going to drive up the

prices on blueberries or other crops that we have. And who is that

going to hit the hardest? It is going to hit the poor and the lower
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income people, because they are going to have a harder time paying

those higher prices. Is that correct?

Mr. FLANAGAN. No question that is correct. Blueberries right now

are at an all-time record high price due to basically supply and demand imbalance.

Mr. DUNCAN. All right, thank you very much.

Ms. Norton?

Ms. NORTON. No questions, Mr. Chairman, thank you.

Mr. DUNCAN. All right, well, thank you very much. You have

been a very good panel. It is just hard to believe that you have people who call themselves environmentalists but who do things that

greatly increase the number of people catching West Nile virus and

other diseases, that allow invasive species to choke our bodies of

water and make them worse, and who run small farmers out of

business. They really should be ashamed of themselves.

Thank you very much.

[Whereupon, at 11:44 a.m., the subcommittee was adjourned.]
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