[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
____
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25-913 WASHINGTON : 2006
_____________________________________________________________________________
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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
[GRAPHIC] [TIFF OMITTED] T5913.004
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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