[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
    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

                                   ____

                    U.S. GOVERNMENT PRINTING OFFICE
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_____________________________________________________________________________
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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                      DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-    JAMES L. OBERSTAR, Minnesota
Chair                                NICK J. RAHALL, II, West Virginia
SHERWOOD L. BOEHLERT, New York       PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina         JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee       ELEANOR HOLMES NORTON, District of 
WAYNE T. GILCHREST, Maryland         Columbia
JOHN L. MICA, Florida                JERROLD NADLER, New York
PETER HOEKSTRA, Michigan             ROBERT MENENDEZ, New Jersey
VERNON J. EHLERS, Michigan           CORRINE BROWN, Florida
SPENCER BACHUS, Alabama              BOB FILNER, California
STEVEN C. LaTOURETTE, Ohio           EDDIE BERNICE JOHNSON, Texas
SUE W. KELLY, New York               GENE TAYLOR, Mississippi
RICHARD H. BAKER, Louisiana          JUANITA MILLENDER-McDONALD, 
ROBERT W. NEY, Ohio                  California
FRANK A. LoBIONDO, New Jersey        ELIJAH E. CUMMINGS, Maryland
JERRY MORAN, Kansas                  EARL BLUMENAUER, Oregon
GARY G. MILLER, California           ELLEN O. TAUSCHER, California
ROBIN HAYES, North Carolina          BILL PASCRELL, Jr., New Jersey
ROB SIMMONS, Connecticut             LEONARD L. BOSWELL, Iowa
HENRY E. BROWN, Jr., South Carolina  TIM HOLDEN, Pennsylvania
TIMOTHY V. JOHNSON, Illinois         BRIAN BAIRD, Washington
TODD RUSSELL PLATTS, Pennsylvania    SHELLEY BERKLEY, Nevada
SAM GRAVES, Missouri                 JIM MATHESON, Utah
MARK R. KENNEDY, Minnesota           MICHAEL M. HONDA, California
BILL SHUSTER, Pennsylvania           RICK LARSEN, Washington
JOHN BOOZMAN, Arkansas               MICHAEL E. CAPUANO, Massachusetts
JIM GERLACH, Pennsylvania            ANTHONY D. WEINER, New York
MARIO DIAZ-BALART, Florida           JULIA CARSON, Indiana
JON C. PORTER, Nevada                TIMOTHY H. BISHOP, New York
TOM OSBORNE, Nebraska                MICHAEL H. MICHAUD, Maine
KENNY MARCHANT, Texas                LINCOLN DAVIS, Tennessee
MICHAEL E. SODREL, Indiana           BEN CHANDLER, Kentucky
CHARLES W. DENT, Pennsylvania        BRIAN HIGGINS, New York
TED POE, Texas                       RUSS CARNAHAN, Missouri
DAVID G. REICHERT, Washington        ALLYSON Y. SCHWARTZ, Pennsylvania
CONNIE MACK, Florida                 JOHN T. SALAZAR, Colorado
JOHN R. `RANDY' KUHL, Jr., New York
LUIS G. FORTUNO, Puerto Rico
LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, Jr., Louisiana
JEAN SCHMIDT, Ohio

                                  (ii)

  
?

            Subcommittee on Water Resources and Environment

                JOHN J. DUNCAN, Jr., Tennessee, Chairman

SHERWOOD L. BOEHLERT, New York       EDDIE BERNICE JOHNSON, Texas
WAYNE T. GILCHREST, Maryland         JOHN T. SALAZAR, Colorado
VERNON J. EHLERS, Michigan           JERRY F. COSTELLO, Illinois
STEVEN C. LaTOURETTE, Ohio           GENE TAYLOR, Mississippi
SUE W. KELLY, New York               BRIAN BAIRD, Washington
RICHARD H. BAKER, Louisiana          TIMOTHY H. BISHOP, New York
ROBERT W. NEY, Ohio                  BRIAN HIGGINS, New York
GARY G. MILLER, California           ALLYSON Y. SCHWARTZ, Pennsylvania
HENRY E. BROWN, Jr., South Carolina  EARL BLUMENAUER, Oregon
BILL SHUSTER, Pennsylvania           ELLEN O. TAUSCHER, California
JOHN BOOZMAN, Arkansas               BILL PASCRELL, Jr., New Jersey
JIM GERLACH, Pennsylvania            RUSS CARNAHAN, Missouri
TOM OSBORNE, Nebraska                NICK J. RAHALL, II, West Virginia
TED POE, Texas                       ELEANOR HOLMES NORTON, District of 
CONNIE MACK, Florida                 Columbia
LUIS G. FORTUNO, Puerto Rico         JOHN BARROW, Georgia
CHARLES W. BOUSTANY, Jr.,            JAMES L. OBERSTAR, Minnesota
Louisiana, Vice-Chair                  (Ex Officio)
JEAN SCHMIDT, Ohio
DON YOUNG, Alaska
  (Ex Officio)

                                 (iii)

                                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


    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 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 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 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 approved 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:] 

    [GRAPHIC] [TIFF OMITTED] T5913.001
    
    [GRAPHIC] [TIFF OMITTED] T5913.002
    
    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 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, 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 practice 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 particular 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 officials 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 
non-point 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, primarily 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.
    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 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 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:] 

    [GRAPHIC] [TIFF OMITTED] T5913.003
    
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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.
    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 
re-review. 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.
    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.
    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.
    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.

TESTIMONY OF DAVID BROWN, 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; 
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 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 
exceeded $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, 
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, 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.
    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 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 evidence 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.
    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 afforded 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 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 magnacide-H 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.
    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 
districts, 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 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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