[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
    HEARING TO CONSIDER REDUCING THE REGULATORY BURDENS POSED BY THE
                  CASE, NATIONAL COTTON COUNCIL V. EPA
                 (6TH CIR. 2009) AND TO REVIEW RELATED
                           DRAFT LEGISLATION

=======================================================================

                             JOINT HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                      NUTRITION AND HORTICULTURE,

                        COMMITTEE ON AGRICULTURE

                                AND THE

                            SUBCOMMITTEE ON
                    WATER RESOURCES AND ENVIRONMENT,

             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 16, 2011

                               __________

                            Serial No. 112-3

                       (Committee on Agriculture)
                           Serial No. 112-10

            (Committee on Transportation and Infrastructure)


          Printed for the use of the Committee on Agriculture
                         agriculture.house.gov



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                        COMMITTEE ON AGRICULTURE

                   FRANK D. LUCAS, Oklahoma, Chairman

BOB GOODLATTE, Virginia,             COLLIN C. PETERSON, Minnesota, 
    Vice Chairman                    Ranking Minority Member
TIMOTHY V. JOHNSON, Illinois         TIM HOLDEN, Pennsylvania
STEVE KING, Iowa                     MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas              LEONARD L. BOSWELL, Iowa
K. MICHAEL CONAWAY, Texas            JOE BACA, California
JEFF FORTENBERRY, Nebraska           DENNIS A. CARDOZA, California
JEAN SCHMIDT, Ohio                   DAVID SCOTT, Georgia
GLENN THOMPSON, Pennsylvania         HENRY CUELLAR, Texas
THOMAS J. ROONEY, Florida            JIM COSTA, California
MARLIN A. STUTZMAN, Indiana          TIMOTHY J. WALZ, Minnesota
BOB GIBBS, Ohio                      KURT SCHRADER, Oregon
AUSTIN SCOTT, Georgia                LARRY KISSELL, North Carolina
STEPHEN LEE FINCHER, Tennessee       WILLIAM L. OWENS, New York
SCOTT R. TIPTON, Colorado            CHELLIE PINGREE, Maine
STEVE SOUTHERLAND II, Florida        JOE COURTNEY, Connecticut
ERIC A. ``RICK'' CRAWFORD, Arkansas  PETER WELCH, Vermont
MARTHA ROBY, Alabama                 MARCIA L. FUDGE, Ohio
TIM HUELSKAMP, Kansas                GREGORIO KILILI CAMACHO SABLAN, 
SCOTT DesJARLAIS, Tennessee          Northern Mariana Islands
RENEE L. ELLMERS, North Carolina     TERRI A. SEWELL, Alabama
CHRISTOPHER P. GIBSON, New York      JAMES P. McGOVERN, Massachusetts
RANDY HULTGREN, Illinois
VICKY HARTZLER, Missouri
ROBERT T. SCHILLING, Illinois
REID J. RIBBLE, Wisconsin

                                 ______

                           Professional Staff

                      Nicole Scott, Staff Director

                     Kevin J. Kramp, Chief Counsel

                 Tamara Hinton, Communications Director

                Robert L. Larew, Minority Staff Director

                                 ______

               Subcommittee on Nutrition and Horticulture

                     JEAN SCHMIDT, Ohio, Chairwoman

STEVE KING, Iowa                     JOE BACA, California, Ranking 
THOMAS J. ROONEY, Florida            Minority Member
STEVE SOUTHERLAND II, Florida        CHELLIE PINGREE, Maine
ERIC A. ``RICK'' CRAWFORD, Arkansas  GREGORIO KILILI CAMACHO SABLAN, 
                                     Northern Mariana Islands

                Matt Perin, Subcommittee Staff Director

                                  (ii)
?

             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                    JOHN L. MICA, Florida, Chairman

DON YOUNG, Alaska                    NICK J. RAHALL, II, West Virginia, 
THOMAS E. PETRI, Wisconsin           Ranking Minority Member
HOWARD COBLE, North Carolina         PETER A. DeFAZIO, Oregon
JOHN J. DUNCAN, Jr., Tennessee       JERRY F. COSTELLO, Illinois
FRANK A. LoBIONDO, New Jersey        ELEANOR HOLMES NORTON, District of 
GARY G. MILLER, California           Columbia
TIMOTHY V. JOHNSON, Illinois         JERROLD NADLER, New York
SAM GRAVES, Missouri                 CORRINE BROWN, Florida
BILL SHUSTER, Pennsylvania           BOB FILNER, California
SHELLEY MOORE CAPITO, West Virginia  EDDIE BERNICE JOHNSON, Texas
JEAN SCHMIDT, Ohio                   ELIJAH E. CUMMINGS, Maryland
CANDICE S. MILLER, Michigan          LEONARD L. BOSWELL, Iowa
DUNCAN HUNTER, California            TIM HOLDEN, Pennsylvania
TOM REED, New York                   RICK LARSEN, Washington
ANDY HARRIS, Maryland                MICHAEL E. CAPUANO, Massachusetts
ERIC A. ``RICK'' CRAWFORD, Arkansas  TIMOTHY H. BISHOP, New York
JAIME HERRERA BEUTLER, Washington    MICHAEL H. MICHAUD, Maine
FRANK C. GUINTA, New Hampshire       RUSS CARNAHAN, Missouri
RANDY HULTGREN, Illinois             GRACE F. NAPOLITANO, California
LOU BARLETTA, Pennsylvania           DANIEL LIPINSKI, Illinois
CHIP CRAVAACK, Minnesota             MAZIE K. HIRONO, Hawaii
BLAKE FARENTHOLD, Texas              JASON ALTMIRE, Pennsylvania
LARRY BUCSHON, Indiana               TIMOTHY J. WALZ, Minnesota
BILLY LONG, Missouri                 HEATH SHULER, North Carolina
BOB GIBBS, Ohio                      STEVE COHEN, Tennessee
PATRICK MEEHAN, Pennsylvania         LAURA A. RICHARDSON, California
RICHARD L. HANNA, New York           ALBIO SIRES, New Jersey
STEPHEN LEE FINCHER, Tennessee       DONNA F. EDWARDS, Maryland
JEFFREY M. LANDRY, Louisiana
STEVE SOUTHERLAND II, Florida
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma

                                 ______

                           Professional Staff

                   James W. Coon, II, Staff Director

                    Suzanne Mullen, General Counsel

               Justin Harclerode, Communications Director

                   Jim Zoia, Minority Staff Director

                                 (iii)
?

     Subcommittee on Water Resources and Environment, Committee on 
                   Transportation and Infrastructure

                       BOB GIBBS, Ohio, Chairman

DON YOUNG, Alaska                    TIMOTHY H. BISHOP, New York, 
JOHN J. DUNCAN, Jr., Tennessee       Ranking Minority Member
GARY G. MILLER, California           JERRY F. COSTELLO, Illinois
TIMOTHY V. JOHNSON, Illinois         ELEANOR HOLMES NORTON, District of 
BILL SHUSTER, Pennsylvania           Columbia
SHELLEY MOORE CAPITO, West Virginia  RUSS CARNAHAN, Missouri
CANDICE S. MILLER, Michigan          DONNA F. EDWARDS, Maryland
DUNCAN HUNTER, California            CORRINE BROWN, Florida
TOM REED, New York                   BOB FILNER, California
ANDY HARRIS, Maryland                EDDIE BERNICE JOHNSON, Texas
ERIC A. ``RICK'' CRAWFORD, Arkansas  MICHAEL E. CAPUANO, Massachusetts
JAIME HERRERA BEUTLER, Washington    GRACE F. NAPOLITANO, California
CHIP CRAVAACK, Minnesota             JASON ALTMIRE, Pennsylvania
LARRY BUCSHON, Indiana               STEVE COHEN, Tennessee
JEFFREY M. LANDRY, Louisiana         LAURA A. RICHARDSON, California
JEFF DENHAM, California              ------
JAMES LANKFORD, Oklahoma

               John Anderson, Subcommittee Staff Director

                                  (iv)
                             C O N T E N T S

                              ----------                              
                                                                   Page
Baca, Hon. Joe, a Representative in Congress from California, 
  opening statement..............................................     4
Bishop, Hon. Timothy H., a Representative in Congress from New 
  York, opening statement........................................     8
    Submitted report.............................................    86
Gibbs, Hon. Bob, a Representative in Congress from Ohio, opening 
  statement......................................................     6
Lucas, Hon. Frank D., a Representative in Congress from Oklahoma, 
  opening statement..............................................     4
Napolitano, Hon. Grace F., a Representative in Congress from 
  California, opening statement..................................    11
Peterson, Hon. Collin C., a Representative in Congress from 
  Minnesota, opening statement...................................    10
    Prepared statement...........................................    10
Schmidt, Hon. Jean, a Representative in Congress from Ohio, 
  opening statement..............................................     1
    Prepared statement...........................................     3

                               Witnesses

Bradbury, Dr. Steven, Director, Office of Pesticide Programs, 
  U.S. Environmental Protection Agency, Washington, D.C..........    12
    Prepared statement...........................................    14
    Submitted questions..........................................    74
Salazar, Hon. John, Commissioner, Colorado Department of 
  Agriculture, Lakewood, CO; on behalf of National Association of 
  State Departments of Agriculture...............................    30
    Prepared statement...........................................    32
    Submitted questions..........................................    84
Fisk, Dr. Andrew, Director, Maine Bureau of Land and Water 
  Quality; President, Association of State and Interstate Water 
  Pollution Control Administrators, Augusta, ME..................    34
    Prepared statement...........................................    36
    Submitted questions..........................................    74
Ninivaggi, Dominick V., Superintendent, Division of Vector 
  Control, Suffolk County Department of Public Works, Yaphank, 
  NY; on behalf of American Mosquito Control Association; 
  accompanied by David Brown, Manager, Sacramento-Yolo Mosquito 
  and Vector Control District, Elk Grove, CA.....................    41
    Prepared statement...........................................    43
    Submitted questions..........................................    77
Semanko, Norman M., Executive Director and General Counsel, Idaho 
  Water Users Association, Inc., Boise, ID; on behalf of National 
  Water Resources Association....................................    47
    Prepared statement...........................................    49

                           Submitted Material

American Farm Bureau Federation, submitted statement.............    64
Chemical Producers & Distributors Association, submitted 
  statement......................................................    66
CropLife America, submitted statement............................    67
    Supplemental material........................................    69
Gilliom, Robert J., Hydrologist, U.S. Geological Survey, 
  submitted statement............................................    53
Hobbs, Aaron, President, RISE (Responsible Industry for a Sound 
  Environment)', submitted statement..................    57
Snyder, Rodney, Chair; and Beau Greenwood, Vice Chair, Pesticide 
  Policy Coalition, submitted statement..........................    60


    HEARING TO CONSIDER REDUCING THE REGULATORY BURDENS POSED BY THE
  CASE, NATIONAL COTTON COUNCIL V. EPA (6TH CIR. 2009) AND TO REVIEW 
                                RELATED
                           DRAFT LEGISLATION

                              ----------                              


                      WEDNESDAY, FEBRUARY 16, 2011

                  House of Representatives,
        Subcommittee on Nutrition and Horticulture,
                                  Committee on Agriculture,
                                                 joint with
   Subcommittee on Water Resources and Environment,
            Committee on Transportation and Infrastructure,
                                                   Washington, D.C.
    The Subcommittees met, pursuant to call, at 2:30 p.m., in 
Room 1300 of the Longworth House Office Building, Hon. Jean 
Schmidt [Chairwoman of the Nutrition and Horticulture 
Subcommittee] and Hon. Bob Gibbs [Chairman of the Water 
Resources and Environment Subcommittee] presiding.
    Members of Subcommittee on Nutrition and Horticulture 
present: Representatives Schmidt, Southerland, Lucas (ex 
officio), Peterson (ex officio), Baca, Pingree, Sablan, Costa, 
and Cardoza.
    Members of Subcommittee on Water Resources and Environment 
present: Representatives Gibbs, Lankford, Bishop, and 
Napolitano.
    Staff of Committee on Agriculture present: Patricia Barr, 
John Goldberg, Mary Nowak, Debbie Smith, Keith Jones, and Jamie 
W. Mitchell.
    Staff of Committee on Transportation and Infrastructure 
present: Jon Pawlow, Geoff Bowman, Caryn Moore, and Ryan 
Seiger.

  OPENING STATEMENT OF HON. JEAN SCHMIDT, A REPRESENTATIVE IN 
                       CONGRESS FROM OHIO

    Mrs. Schmidt. Thank you all for this delayed opportunity to 
come before us: The Subcommittee on Nutrition and Horticulture, 
and the Subcommittee on Water Resources and Environment: this 
is a joint public hearing to consider reducing the regulatory 
burdens posed by the case, National Cotton Council v. EPA in 
the 6th Circuit 2009 and to review related draft legislation. 
This joint hearing of the House Agriculture Subcommittee on 
Nutrition and Horticulture and the Committee on Transportation 
and Infrastructure Subcommittee is considering this case. I am 
going to first give my opening statement then I am going to 
recognize my Ranking Member, Mr. Baca, and because our Chairman 
of our Committee, Mr. Lucas, has a time commitment, I am going 
to allow him to give his opening statement and then defer to 
Mr. Gibbs.
    I would like to thank my colleagues from both Committees 
for being here today and we have just finished votes so people 
will be coming in. We appreciate the support of both Committees 
and their staffs. The issue that brings us together is of 
critical importance to our mutual constituency, and it is my 
hope that the solutions proposed to us today will truly be 
bipartisan as is the tradition of this Agriculture Committee. 
For more than 100 years the Federal Government has administered 
its responsibilities under the Federal Insecticide, Fungicide, 
and Rodenticide Act or FIFRA to effectuate a review and 
registration program for pesticides that insures protection of 
human health and the environment.
    Since the passage of the Clean Water Act of 1972, the 
Environmental Protection Agency has interpreted its 
responsibilities related to pesticide use such that compliance 
with FIFRA would mitigate the need for duplicative regulation 
under the Clean Water Act. As litigation in the early part of 
this past decade began to challenge this interpretation, the 
EPA ultimately responded with the promulgation of the 
regulation on November 27, 2006, to clarify how these two laws 
are to operate. Under EPA's final rule governing application of 
pesticides to waters of the United States in compliance with 
FIFRA, the agency clarified in regulation its earlier 
interpretation that permits for pesticide application under the 
Clean Water Act were unnecessary where pesticides were used in 
accordance with their regulation under FIFRA.
    Following finalization of this regulation, the rule was 
challenged in numbers--numerous jurisdictions. The case was 
ultimately heard in this Sixth Circuit Court where the 
government's interpretation of the interaction of these two 
laws was not given the deference we would normally expect. The 
final court order will nullify EPA's regulation as of April the 
9th of this year, and as such will impose what is viewed as a 
burdensome, costly, and duplicative permitting process under 
the Clean Water Act for literally millions of pesticide 
application.
    Having exhausted all judicial review options and failing 
Congressional action, this order will impose a burden on the 
EPA, state regulatory agencies, and pesticide applicators that 
will cost our economy dearly in terms of jobs as well as 
severely threaten the already critical budgetary situation 
facing governments at all levels in our country. It is 
particularly unfortunate that this court order imposes a new 
requirement that will imperil our water resource boards, our 
mosquito control boards, our forestry and agricultural sectors, 
yet provides no additional environmental or public health 
protection. On the contrary by imposing this costly burden on 
public health pesticide users, it may in fact jeopardize public 
health as it relates to protection against insect-borne 
diseases such as West Nile Virus and various forms of 
encephalitis and Lyme disease.
    With limited options short of legislation to address this 
issue, several proposals were drafted and introduced last fall. 
In discussions with the EPA, questions were raised in terms of 
ambiguity of some of these proposals and as such the agency 
provided Committees in both the House and the Senate with 
technical assistance to redraft this legislation. The 
legislation that is in each Member's folder and that was made 
available to each of our witnesses was drafted by the EPA. It 
has since passed through the House Legislative Council. The 
goal of this legislation has been to address only those 
problems created by the decisions of the 6th Circuit, and to be 
entirely consistent with the policy of the EPA as stated in 
their November 27, 2006, final ruling governing the application 
of pesticides to waters in the United States in compliance with 
FIFRA.
    We are very grateful to the cooperation and the assistance 
of the EPA in this matter. We recognize that the agency's draft 
legislation is the product of a request for technical 
assistance and as such we have not asked, nor do we expect that 
agency will take a position today for or against the bill. We 
simply wish to engage the agency on technical aspects of their 
pesticide program and to ensure that the draft legislation 
conforms to their 2006 regulation. While there are many issues 
confronting this Congress in which our relationship with the 
EPA may unfortunately seem to be more adversarial, in this 
particular case we recognize and acknowledge that the EPA is as 
much of a victim of an erroneous court order as are the state 
and local governments and pesticide applicators.
    We are hopeful that this bipartisan spirit in which we 
address this issue will be a model for how we confront other 
issues.
    [The prepared statement of Mrs. Schmidt follows:]

 Prepared Statement of Hon. Jean Schmidt, a Representative in Congress 
                               from Ohio

    I would first like to welcome our colleagues from the Subcommittee 
on Water Resources and Environment of the Transportation and 
Infrastructure Committee.
    We appreciate the cooperation and support you've offered in 
organizing this joint hearing of our two Subcommittees.
    The issue that brings us together today is of critical importance 
to our mutual constituencies and it is my hope that the solutions 
proposed to us today will be truly bipartisan as is the tradition of 
the Agriculture Committee.
    For more than 100 years, the Federal Government has administered 
its responsibilities under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) to effectuate a review and registration program 
for pesticides that ensures protection of human health and the 
environment.
    Since passage of the Clean Water Act in 1972 (CWA), the 
Environmental Protection Agency (EPA) has interpreted its 
responsibilities related to pesticide use such that compliance with 
FIFRA would mitigate the need for duplicative regulation under the CWA.
    As litigation in the early part of this past decade began to 
challenge this interpretation, the EPA ultimately responded with the 
promulgation of a regulation on November 27, 2006 to clarify how these 
two laws are to operate. Under EPA's final rule governing application 
of pesticides to waters of the United States in compliance with FIFRA, 
the agency clarified in regulation its earlier interpretation that 
permits for pesticide application under the CWA were unnecessary where 
pesticides were used in accordance with their regulation under FIFRA.
    Following finalization of this regulation, the rule was challenged 
in numerous jurisdictions. The case was ultimately heard in the 6th 
Circuit wherein the government's interpretation of the interaction of 
these two laws was not given the deference we would normally expect.
    The final court order will nullify EPA's regulation as of April 9th 
of this year and as such will impose what is viewed as a burdensome, 
costly, and duplicative permitting process under the CWA for literally 
millions of pesticide applications.
    Having exhausted all judicial review options and failing 
Congressional action, this order will impose a burden on the EPA, state 
regulatory agencies, and pesticide applicators that will cost our 
economy dearly in terms of jobs as well as severely threaten the 
already critical budgetary situation facing government at all levels. 
It is particularly unfortunate that this court order imposes a new 
requirement that will imperil our water resource boards, our mosquito 
control boards, and our forestry and agricultural sectors, yet provides 
no additional environmental or public health protection. On the 
contrary, by imposing this costly burden on public health pesticide 
users, it may in fact jeopardize public health as it relates to 
protection against insect-borne diseases such as West Nile Virus, 
various forms of Encephalitis, and Lyme disease.
    With limited options short of legislation to address this issue, 
several proposals were drafted and introduced last Fall. In discussions 
with the EPA, questions were raised in terms of the ambiguity of some 
of these proposals and as such, the agency provided Committee's in both 
the House and the Senate with technical assistance to redraft this 
legislation.
    The draft legislation that is in each Members folder and that was 
made available to each of our witnesses was drafted by the EPA. It has 
since passed through the House Legislative Council. The goal of this 
legislation has been to address only those problems created by the 
decision of the 6th Circuit and to be entirely consistent with the 
policy of the EPA as stated in their November 27, 2006 final rule 
governing Application of Pesticides to Waters of the United States in 
compliance with FIFRA.
    We are very grateful for the cooperation and the assistance of the 
EPA in this matter. We recognize that the agency's draft legislation is 
the product of a request for technical assistance, and as such we have 
not asked, nor do we expect that agency will take a position today for 
or against the bill. We simply wish to engage the agency on the 
technical aspects of their pesticide program and to ensure that the 
draft legislation conforms to their 2006 regulation.
    While there are many issues confronting this Congress in which our 
relationship with the EPA may unfortunately seem to be more 
adversarial, in this particular case we recognize and acknowledge that 
the EPA is as much a victim of an erroneous court order as are state 
and local governments and pesticide applicators.
    We are hopeful that the bipartisan spirit in which we address this 
issue will be a model for how we confront other issues.
    With that, I would like to once again thank everyone present for 
their interest in this important issue and would like to recognize my 
good friend, Ranking Member Baca, for his opening statement.

    Mrs. Schmidt. With that, I would once again like to thank 
everyone present for their interest in this important matter 
and I will now recognize my good friend, Ranking Member Baca, 
for his opening statement.

    OPENING STATEMENT OF HON. JOE BACA, A REPRESENTATIVE IN 
                    CONGRESS FROM CALIFORNIA

    Mr. Baca. Thank you very much, Madam Chair. In the spirit 
of being bipartisan and understanding that the Chairman of the 
Agriculture Committee has to go to another meeting I will yield 
my time to him at this time and then give my opening statement 
later since I sit on the Agriculture Committee and I may want 
some of those bills passed. So at this time I yield to the 
Chairman.

 OPENING STATEMENT OF HON. FRANK D. LUCAS, A REPRESENTATIVE IN 
                     CONGRESS FROM OKLAHOMA

    Mr. Lucas. Thank you, Ranking Member as always you are a 
Statesman and a true legislator to the core. I appreciate that. 
I want to express my appreciation to first and foremost of 
course to both Chairmen and both Ranking Members of the two 
Subcommittees for holding this hearing. And express too, my 
appreciation to our panelists who have been very patiently 
waiting for this process to begin. We have just finished I 
believe 15 votes in a series. We are in a process which has not 
been done quite this way before and we have today and tomorrow 
yet to go. So your indulgence and your tolerance is appreciated 
as we move forward.
    But this issue that is being addressed today by the joint 
meeting of the Subcommittees is an issue of critical importance 
to all of our constituents, and I appreciate the bipartisan 
spirit in which the hearing has been organized. I would like to 
thank the EPA for their assistance in providing the two 
separate bipartisan legislative proposals that were introduced 
in the last Congress. I am hopeful that the cooperation and 
support we have received from the agency is a signal of the 
Administrator's willingness to work together to solve problems 
confronting all of our constituents.
    The issue before us today is extremely time sensitive. If 
we fail to get bipartisan legislation to the President's desk 
by April 9, a questionably naive and irresponsible court order 
will be implemented that will impose what I fear is a 
potentially disastrous burden on the government budgets and an 
equally ruinous cost on small business. The draft legislation 
before us is intended to solve a very specific problem. Our 
request to the agency was for legislation consistent with their 
final regulation of November 27, 2006, and I am hopeful that 
the agency representative here today will verify that this is 
indeed the case.
    EPA has administered a robust regulatory program for 
pesticides under the Federal Pesticide, Fungicide, and 
Rodenticide Act, FIFRA. It is my belief that sufficient 
authority exists under this Act to balance the risks and the 
benefits of pesticide applications. Under FIFRA, the EPA may 
register a pesticide following a review of more than 120 
mandated, scientific studies. Yes, 120 is what I said if the 
product can be used safely under specific conditions, the EPA 
will approve a label governing its use. Failure to comply with 
all label conditions is a violation of the Act which the agency 
enforces using tools ranging from civil monetary penalties 
including recovery of any economic benefit of noncompliance to 
requiring correction of the violation. EPA may also issue a 
stop sale, use, or removal order prohibiting the person who 
owns, controls, or has custody of a violative pesticides from 
being sold, used, and removing that product.
    I think we can all agree that compliance with FIFRA imposes 
an already substantial statutory and economic burden on the 
industry. In issuing its order, the 6th Circuit has also 
imposed a duplicative, burdensome, and costly obligation on 
government and industry that provides no quantifiable benefit 
to human health or the environment. Having exhausted all 
judicial remedies it now falls on Congress to resolve this 
matter. It is my sincere hope that we can all work together in 
a timely manner to do what must be done. Again, I thank the 
Chairmen and Ranking Members and I look forward to the comments 
of my colleagues and the input from our expert panels to 
follow. I yield back.
    Mr. Baca. Thank you. Reclaiming my time, good afternoon and 
I want to thank the Chairwoman for holding this important 
hearing this afternoon. I want to thank the panelists for their 
patience in waiting until we got back from votes. I also want 
to thank the Members of the Transportation and Infrastructure 
Subcommittee on Water Resources and Environment for joining us 
here today. Unfortunately, there are too few opportunities--and 
I state too few opportunities for a Committee to jointly 
examine an issue that builds relationship across jurisdictions 
and across the aisles. My objective here is simple and 
straightforward. I want to better understand how the regulatory 
burdens placed on pesticides users by the National Cotton 
Council v. EPA decision can be eliminated. Part of this case, 
EPA had never required a permit for applications of pesticides 
when the pesticides was applied consistent with the FIFRA 
regulations. While EPA's new permit only covers four 
application types, it has estimated to affect some 365,000 
applicators and 5.6 million pesticides applications each year. 
Can you imagine what those numbers are?
    EPA estimates that the permit process will add $1.7 million 
in annual costs to our cash strapped states. Many experts 
including my former colleague John Salazar believes that the 
actual costs to our states will be significantly higher than 
that. In addition, the permitting process is estimated to add 
another $50 million in cost to pesticides applicators, most of 
whom are small businesses, not to mention the delay in the 
process of that application to be processed as well.
    In my home State of California, we face a 12.5 unemployment 
rate and a $25 billion budget deficit. We simply cannot afford 
this regulatory burden. Likewise, the negative impact on 
agriculture, irrigation, and the pest control professionals is 
a cause for serious public health concern. My Congressional 
district located in California and the Inland Empire has long 
had problems with the West Nile Virus, the ability of the 
mosquito and the pest control to respond quickly--and I state 
to respond quickly because if you don't respond quickly that 
means time and money to a public health situation that must not 
be jeopardized. For over 30 years the FIFRA has ensured that 
when a pesticide is used in accordance with the label 
requirements it will not bring unreasonable risk to our 
communities or the environment. I believe in the standards that 
we must return to. I look forward to hearing from our witnesses 
and working with my colleagues to find a reasonable--and I 
state reasonable legislative solution to this issue. I yield 
back to the Chairwoman.
    Mrs. Schmidt. Thank you and before I yield over to my good 
friend on the Transportation and Infrastructure Committee, Mr. 
Gibbs of Ohio, the gentleman from California, Mr. Cardoza who 
is not a Member of this Subcommittee but is a Member of the 
full Committee has joined us today and I have consulted with 
the Ranking Member and we are pleased to welcome him and ask 
him if he would like to join in the questioning of the 
witnesses. Thank you. Correct? Perfect and now I will turn this 
over to the good gentleman from Ohio, Mr. Gibbs.

   OPENING STATEMENT OF HON. BOB GIBBS, A REPRESENTATIVE IN 
                       CONGRESS FROM OHIO

    Mr. Gibbs. Thank you, Madam Chair. I would like to welcome 
everyone to our hearing today on means for reducing the 
regulatory burdens posed by the 6th Circuit Federal Court of 
Appeals case National Cotton Council v. EPA, which vacated a 
2006 EPA Clean Water Act rule relating to pesticide use. In 
2006, the Environmental Protection Agency promulgated a rule 
relating to pesticide use to address regulatory uncertainties 
that had been created for farmers, foresters, irrigators, water 
resource managers, and public health agencies that need to 
utilize pesticides or other products in and around water 
bodies. The EPA rule in question had exempted from the Clean 
Water Act permits pesticides applied near or into water bodies 
if those pesticides were applied in accordance with the Federal 
pesticides law, known as the Federal Insecticide, Fungicide, 
and Rodenticide Act or FIFRA. The regulatory uncertainties the 
EPA rule sought to adjust stem from a number of Federal court 
cases brought by environmental activists with an anti-pesticide 
agenda.
    EPA's rule was challenged in several Federal circuit courts 
and consolidated in the 6th Circuit which vacated the rule in 
January 2009 in the National Cotton Council case. In vacating 
the rule, the 6th Circuit substituted judge-made policy choices 
for reasonable agency interpretations of the law. In the 
process, the court undermined the traditional understanding of 
how the Clean Water Act interacts with other environmental 
statutes and judicially expanded the scope of the Clean Water 
Act regulation further into areas and activities not originally 
envisioned or intended by Congress.
    For example, the court's ruling is a sweeping expansion of 
the definition of point source discharge under the Clean Water 
Act. The ruling opens the door to allowing other courts to 
extrapolate from the logic of calling a sprayed pesticide from 
a nozzle or sprayer a discharge of pollutants from a point 
source, to considering the broad range of other activities 
involving nontraditional types of discreet sources such as 
aerial, fire suppression, applying fertilizer, and emissions 
from the stacks of factories, power plants, and automobile 
tailpipes as also being discharges of pollutants from a point 
source.
    Future activists litigates can be expected to rely on the 
6th Circuit's decision--offensively used as a weapon--to expand 
the scope of the Clean Water Act permitting into still 
additional areas and activities not originally envisioned or 
intended by Congress. As a result of this judicial intrusion 
into EPA's reasonable interpretation of the Clean Water Act, 
EPA is now having to develop and soon will be issuing a final 
Clean Water Act permit for certain pesticide applications for 
the court's mandated deadline of April 9, 2011. This new Clean 
Water Act permit for covered pesticide stands to be the single 
greatest expansion of the permitting process in the history of 
the Clean Water Act program. EPA has said it can expect 
approximately 5.6 million covered pesticide application per 
year by approximately 365,000 applicators, virtually doubling 
the number of entities currently subject to the Clean Water Act 
permitting.
    Requiring a permit on the Clean Water Act in addition to an 
approval under FIFRA adds delays, costs, and other burdens on 
both the regulatory agencies who have to issue the permits and 
those who need to get a permit. Without increasing 
environmental protection it also could result in significant 
environmental and human health impacts by hampering the ability 
to respond to disease and pest outbreaks. With this 
unprecedented judicially triggered expansion of government 
regulation comes very real burdens not only for the EPA, but 
also for the states that will have to issue the permits, those 
whose livelihoods depend on the use of pesticides, and even 
everyday citizens going about their daily lives.
    Most states will face increased financial and 
administrative burdens in order to comply with the new 
permitting process. In a time when too many states are being 
forced to make difficult budgetary cuts, we cannot afford to 
impose more financial burdens on them especially when those 
burdens do nothing to advance the goal of cleaner water. The 
new and duplicative permitting process also imposes enormous 
burdens on pesticide users who encompass a wide range of 
individuals from state agencies, municipalities, mosquito 
control districts, water districts, pesticide applicators, 
farmers, ranchers, forest managers, scientists, and even every 
day citizens who rely on the benefits provided by pesticides in 
their responsible application. Compliance will no longer mean 
simply following instructions on a pesticide label. Instead, 
applicators will have to navigate a complex permitting process 
and gain a formality with all permits, conditions, and 
restrictions.
    Along with increased administrative burdens comes an 
increased monetary burden. In addition to the cost of coming 
into compliance, pesticide users will be subject to an 
increased risk of litigation particularly from anti-pesticide 
activist groups and exorbitant fines. Given the fact that a 
large number of users have never been subject to the Clean 
Water Act and its permitting process, even a good faith effort 
to be in compliance could fall short.
    Unless Congress acts, hundreds of thousands of farmers, 
foresters, and public health pesticide users will go on to the 
next season under the threat of lawsuits and exorbitant fines. 
Congress needs to return the state of pesticide regulation to 
the status quo before the activists courts got involved. 
Congress needs to do that by considering narrowly crafted 
legislation that will address the 6th Circuit's finding in the 
National Cotton Council case. Such legislation should ensure 
that the proper use of pesticide product is regulated under 
FIFRA and not the Clean Water Act. Under FIFRA, EPA makes sure 
that the use of the pesticide will not result in unreasonable 
adverse effects on the environment.
    EPA has provided us with technical assistance by drafting a 
very narrow proposed legislation. We need to take a close look 
at this proposed legislation and see if it will accomplish our 
objective. I welcome our witnesses to our hearing today and 
look forward to hearing from each of you. Thank you, Madam 
Chair. At this time I yield time to the Ranking Member of the 
Water Resources Subcommittee, Mr. Bishop.

 OPENING STATEMENT OF HON. TIMOTHY H. BISHOP, A REPRESENTATIVE 
                   IN CONGRESS FROM NEW YORK

    Mr. Bishop. Thank you. I thank the Chairman of the 
Subcommittee, and I thank Madam Chair for scheduling this 
hearing, and I thank you for inviting me today's hearing. As I 
hope my colleagues on the Transportation and Infrastructure 
Committee are aware, the rules of the T&I Committee reserve the 
right for the Minority to call witnesses of our choosing to 
attend its hearings. Specifically the rules of the Committee 
state that the Minority--``the Minority party Members on the 
Committee or Subcommittee shall be entitled to call witnesses 
selected by the Minority to testify'' with respect to the 
subject matter of the hearing. By tradition of our Committee, 
this rule protecting the right of the Minority to call 
witnesses has been honored by accommodating these witnesses on 
the same day as the Majority witnesses.
    Unfortunately, the process used in scheduling this hearing, 
and on honoring the Minority's request to have witnesses to 
attend the hearing seems inconsistent with both the letter and 
the spirit of our Committee rules and with the better 
traditions of the Subcommittee on Water Resources and the 
Environment. Within 24 hours of learning of this hearing, the 
Minority staff provided the Majority staff of both 
Subcommittees with the names of two respected witnesses 
knowledgeable on the presence of pesticide in the nation's 
surface and ground waters and on the potential beneficial 
impacts of clean water coverage of pesticide application.
    The first witness we recommended was a representative of 
the U.S. Geological Survey to testify on the Survey's 2006 
report related to the presence of pesticides in surface waters 
and ground waters throughout the United States. In their 2006 
report, the USGS found that pesticides are frequently present 
in streams and ground water. USGS also found that pesticides 
have been found in streams at levels that exceed the human 
health benchmark and that pesticide concentrations in many 
streams are having adverse affects on aquatic life and fish-
eating wildlife. Today's hearing will discuss draft legislation 
that effectively relies on the status quo to protect human 
health and the environment from the adverse effects of 
pesticides. It is therefore relevant that Members understand 
how, under current law, pesticides are showing up in U.S. 
waters and ground waters. To that end, I ask unanimous consent 
that the USGS circular, Pesticides in the Nation's Streams and 
Groundwater, be made part of the formal record.
    Mr. Gibbs. Do you mean the testimony that the USGS has 
submitted for the record? Is that what you are referring to?
    Mr. Bishop. That is what I mean. Yes, that is what is I am 
referring.
    Mr. Gibbs. And also----
    Mr. Bishop. I'm sorry, Mr. Chairman, I also mean, the--this 
report----
    Mr. Gibbs. Okay.
    Mr. Bishop.--entitled Pesticides in the Nation's Streams 
and Ground Water 1992-2001.
    [The document referred to is located on p. 86.]
    Mr. Gibbs. Okay. And I also wanted to be clear that your 
preferred witness was the United States Geological Survey and 
they were asked and they wanted to submit a written report 
instead of oral testimony.
    Mr. Bishop. My understanding is that the witness was 
invited just this past Monday and then it would not have been 
possible for the witness to come to a hearing with less than 48 
hours notice.
    Mr. Gibbs. Okay, well that wasn't--that----
    Mr. Bishop. May I finish my opening statement?
    Mr. Gibbs. Okay. It is my understanding the actual letter 
went out but they decided on Saturday to submit for the written 
record. Okay----
    Mr. Bishop. May I continue my opening statement?
    Mr. Gibbs. Okay.
    Mr. Bishop. Thank you. The second witness we had 
recommended was the lead attorney in the National Cotton 
Council case. In my view, this witness would have been well 
suited to explain to the Subcommittee Members why stakeholders 
challenged the 2006 rulemaking of the Environmental Protection 
Agency related to pesticides in the Clean Water Act. Because of 
the relevance of this issue I ask unanimous consent that Mr. 
Charles Tebbutt be given 5 legislative days to submit a written 
statement for the record.
    Mr. Gibbs. Is there any objections to that? So moved. 
Hearing none, they are so moved into the record.
    [The document referred to was submitted after the official 
hearing record closed. The statement of Mr. Tebbutt is retained 
in Committee files.]
    Mr. Bishop. Thank you, Mr. Chairman.
    Mrs. Schmidt. As the former Chairman and the Ranking Member 
of the Full Committee on--oh I am sorry.
    Mr. Bishop. I am not done yet. That is okay. That's okay.
    Mr. Gibson. Would you yield for just one second?
    Mr. Bishop. Of course.
    Mrs. Schmidt. Thank you, I am going to yield to Mr. 
Peterson since he has got to run.

OPENING STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE 
                   IN CONGRESS FROM MINNESOTA

    Mr. Peterson. I appreciate you yielding. I have to be in 
another place right now so I have a statement I would just like 
to introduce for the record and then yield back to my friend.

  Prepared Statement of Hon. Collin C. Peterson, a Representative in 
                        Congress from Minnesota

    Good afternoon, and thank you to the Subcommittee Chairs and 
Ranking Members for holding today's hearing and welcome, Members of the 
Transportation and Infrastructure Committee, to the Agriculture 
Committee.
    I'm hearing from a lot of the guys in my district and they are 
really worried about these new regulations coming from folks who have 
no connection to agriculture; folks who just don't get it.
    My guys have just about had it with these lawsuits and regulations 
and frankly, I'm getting sick of those outside of agriculture telling 
farmers how to do their jobs. I'm afraid that if we don't do something 
about this many producers could be driven out of business.
    In 2009 the 6th Circuit Court of Appeals overturned a 2006 EPA rule 
that exempted registered pesticides from the permitting requirements 
under the Clean Water Act. This decision pre-empts the Federal 
Insecticide, Fungicide, and Rodenticide Act, or FIFRA by the Clean 
Water Act for the first time in the history of either statute. This was 
not the intent of Congress.
    This permitting requirement places an enormous burden and 
responsibility on the states and the EPA. I think I speak for many of 
us when I say the last thing we need is more regulation coming from the 
EPA. I think they're out of control and should get back to focusing on 
stuff in the real world.
    Last fall I introduced legislation that would amend both the Clean 
Water Act and FIFRA to prohibit permits for pesticide application when 
pesticides are applied consistent with FIFRA.
    I am pleased to see a discussion draft before us today that would 
address the court's interpretation of the Clean Water Act. I appreciate 
the EPA's timely response to the request for technical assistance in 
developing this draft language.
    Unless we can work together and come to a solution, we will likely 
continue down this path of lawyers and judges with no connection to 
agriculture making decisions about how our producers must operate. The 
courts are not the place to decide agriculture policy.
    Again, I thank the Chairs for holding today's hearing and look 
forward to hearing from today's witnesses.

    Mrs. Schmidt. Perfect. Now we will continue. I am sorry, 
Mr. Bishop.
    Mr. Bishop. I have about a minute left.
    Mr. Peterson. Keep up the good work.
    Mr. Bishop. The fact that two witnesses recommended by the 
Minority are not here to testify today represents in my view a 
missed opportunity to address the important policy questions 
before us today. The lack of opposing views on the witness 
panel hinders our ability to even discuss the very issues that 
Members are struggling to understand. That is, the potential 
benefits and drawbacks from regulating the discharge of 
pesticides into U.S. waters under either the Federal 
Insecticide, Fungicide, and Rodenticide Act, FIFRA or the Clean 
Water Act. The data gathered by the USGS and by individual 
states clearly show that water throughout the United States are 
already impaired by pesticides and in certain places at levels 
that posed an elevated risk to human health and the 
environment. The policy implications of this fact, though seem 
less certain. Does this fact mean that the status quo is 
protective of human health and the environment from the adverse 
affects of pesticide? Or does it mean that the Clean Water Act 
could provide another tool for preventing these pesticides from 
entering U.S. waters, or does it mean that the current 
structure or enforcement of FIFRA may require strengthening? If 
there is a desire for Members to undo the actions of the Sixth 
Circuit Court of Appeals, I believe it is in the best interest 
of all of our Members to fully understand what the implications 
of our actions might be. It is my hope that future hearings on 
this important issue will more fully explore the challenging 
policy questions of how to best address the issue of pesticides 
in the water related environment. I thank you for your 
indulgence. I yield back the balance of my time.
    Mrs. Schmidt. Thank you, Mr. Bishop, and I would like to 
ask unanimous consent that opening statements made by other 
Members of this Committee be submitted for the record and they 
have 5 legislative days to do so that that the witnesses may 
begin their testimony and to ensure that there is ample time 
for questions.
    We would now like to welcome to the table our first panel 
of witnesses. Oh, I am sorry. I think what I said for the time 
frame that we are in if you could just submit them for the 
record because----
    Ms. Napolitano. I am sorry, Madam Chair, but I don't have 
them for the--in writing.
    Mrs. Schmidt. Can you do it----
    Ms. Napolitano. There are some key issues that I would like 
to just bring up real quickly.
    Mrs. Schmidt. One minute because I really want to give Dr. 
Bradbury----
    Ms. Napolitano. That is fine. One minute will do.
    Mrs. Schmidt. Okay. Thank you.

OPENING STATEMENT OF HON. GRACE F. NAPOLITANO, A REPRESENTATIVE 
                  IN CONGRESS FROM CALIFORNIA

    Ms. Napolitano. I am from California as you all know and I 
was serving in the State Assembly and looked at many of the 
issues that we dealt with in delisting and listing of 
pesticides. I have in my district, which is the size of 
Connecticut, a contaminated site with pesticides, herbicides, 
fertilizers, and jet fuel that is over $100 million and it has 
another 10, 15 years to clean up. That is because of all these 
things happening 60 years ago. What we are looking at is 
contaminated aquifers and eventually some of that drinking 
water may not be able to be used because it needs to be cleaned 
up at taxpayer expense most of the time because the PRPs are no 
longer alive or in business. That is why California has gone to 
all great measures to be able to have these through 2006. So I 
would like to--I will put something in writing Madam Chair, but 
I did want to bring that to the table.
    Mrs. Schmidt. And we will give you at least 5 legislative 
days to do that. Thank you. In fairness, is there anyone on 
the--very good. Dr. Bradbury, thank you so much for your 
indulgence in this. Sorry we are so late in getting this 
together, but you are the Director of Office of Pesticide 
Programs in the U.S. Environmental Protection Agency, and we 
welcome you to this Committee, and you may begin.

STATEMENT OF DR. STEVEN BRADBURY, DIRECTOR, OFFICE OF PESTICIDE 
                  PROGRAMS, U.S. ENVIRONMENTAL
              PROTECTION AGENCY, WASHINGTON, D.C.

    Dr. Bradbury. Thank you. Good afternoon, Chairwoman Schmidt 
and Chairman Gibbs, Ranking Members Baca and Bishop as well as 
other Members of the Subcommittees. My name is Steven Bradbury 
and I serve as the Director of the Office of Pesticide Programs 
in the Environmental Protection Agency. I am pleased to appear 
before you today to discuss how EPA regulates pesticides to 
protect our nation's water resources under the Federal 
Insecticide, Fungicide, and Rodenticide Act, FIFRA. EPA's 
Office of Pesticide Programs is charged with administering 
FIFRA under which we must ensure that the use of a pesticide 
does not cause unreasonable adverse affects in the environment. 
When used properly, pesticides provide significant benefits to 
society such as controlling disease causing organisms, 
protecting the environment from invasive species, and fostering 
a safe and abundant food supply.
    FIFRA's safety standard requires EPA to weigh these types 
of benefits against any potential harm to human health and the 
environment that may result from using a pesticide. EPA has 
broad authority to restrict the way a pesticide may be used to 
lower its risks, and EPA will only allow use of the pesticide 
only if we think the benefits outweigh the remaining risks. 
Over the last 30 years, EPA has developed a highly regarded 
program for evaluating pesticide safety and making regulatory 
decisions. EPA's reputation rests on a world renowned expertise 
in pesticide risk assessment and an approach to decision making 
that is widely considered to be a model for transparency and 
openness.
    FIFRA requires that before any pesticide may be sold or 
distributed in the United States, EPA must license its sale 
through a process called registration. FIFRA also requires EPA 
to systematically reevaluate pesticides that are registered 
against contemporary scientific and safety standards. EPA's 
registration and reevaluation processes are transparent and 
open to everyone. We provide multiple opportunities for the 
public to review our work and provide comments. For 
registration we announce receipt of applications for pesticide 
products containing new active ingredients and we publish and 
take comment on our risk assessment and proposed decisions.
    Our pesticide reevaluation program provides opportunities 
for public comment on preliminary work plans, risk assessments, 
and proposed regulatory decisions. EPA's registration and 
reevaluation decisions are based on the best available peer 
reviewed science. EPA evaluates a comprehensive battery of 
studies submitted by the pesticide companies as well as other 
studies that are published in the scientific literature. EPA 
uses peer reviewed procedures to analyze data to produce risk 
assessments covering a wide range of potential effects on both 
humans and the environment. When we encounter significant 
scientific challenges we turn to the FIFRA scientific advisory 
panel which is a Federal advisory committee for independent and 
expert scientific peer review.
    Using the studies mentioned previously, EPA develops and 
makes publicly available aquatic life effects benchmarks for 
pesticide active ingredients and their degradates. EPA also 
calculates expected exposure concentrations of pesticide 
residues that may be present in surface and groundwater as a 
result of direct application, run-off, or drift. EPA uses the 
effect and exposure values to assess risk to aquatic ecosystems 
as well as to humans from consumption of drinking water.
    Once a risk assessment is complete, EPA can impose under 
FIFRA a variety of mitigation measures if unacceptable risks 
are identified. For risks arising from pesticides in water, 
mitigation measures could include reducing application, 
frequency, or rates, prohibiting certain application methods, 
establishing no spray buffer zones around water bodies, or only 
allowing use of the product by trained and certified 
applicators, or other restrictions. These measures are 
typically national in scope, but increasingly we are designing 
protective restrictions that apply in specific geographic areas 
to address risks arising from local conditions.
    These requirements are communicated to pesticide users 
through a product's labeling. EPA collaborates with states and 
tribes on a voluntary submission of water monitoring data for 
consideration in risk assessments and risk management 
decisions. EPA reviews monitoring data to identify if 
pesticides are found in water at levels exceeding human health 
or environmental safety benchmarks. If ongoing monitoring or 
other information indicates that there are unsafe levels of 
pesticide residues in water, EPA will impose additional risk 
mitigation measures as needed to ensure the pesticide meets the 
statutory standard.
    In conclusion, the regulatory restrictions imposed by EPA 
under FIFRA directly control the amount of pesticides that can 
reach aquatic ecosystems. EPA uses its full regulatory 
authority under FIFRA to ensure that pesticides do not cause 
unreasonable adverse effects on human health or the environment 
including our nation's water resources. Thank you for the 
opportunity to testify and I look forward to answering your 
questions.
    [The prepared statement of Dr. Bradbury follows:]

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

Introduction
    Good afternoon, Chairwoman Schmidt and Chairman Gibbs, Ranking 
Members Baca and Bishop, as well as other Members of the Subcommittees. 
My name is Steven Bradbury and I serve as the Director of the Office of 
Pesticide Programs (OPP) in the U.S. Environmental Protection Agency 
(EPA). I am pleased to appear before you today to discuss how EPA 
regulates pesticides under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) to protect our nation's water resources. I will 
begin by describing our commitment to the principles of transparency 
and using the best available, peer-reviewed science. These principles 
undergird the two major components of EPA's program for regulating 
pesticides--the initial registration of pesticide products and the 
ongoing reevaluation of past decisions.

EPA's Programs for Regulating Pesticides
    EPA's Office of Pesticide Programs is charged with administering 
FIFRA, under which we must ensure that use of a pesticide does not 
cause ``unreasonable adverse effects on the environment.'' When used 
properly, pesticides provide significant benefits to society, such as 
controlling disease causing organisms, protecting the environment from 
invasive species, and fostering a safe and abundant food supply. 
FIFRA's safety standard requires EPA to weigh these types of benefits 
against any potential harm to human health and the environment that 
might result from using a pesticide. The Agency has broad authority to 
restrict the way a pesticide may be used in order to lower its risks, 
and EPA may allow use of the pesticide only if we think the benefits 
outweigh the remaining risks.
    Over the last 30 years EPA has developed a highly regarded program 
for evaluating pesticide safety and making regulatory decisions. EPA's 
reputation rests on our world renowned expertise in pesticide risk 
assessment. Our approach to decision making is also widely considered 
to be a model for transparency and openness. Using this approach, the 
Agency makes decisions consistent with scientific information and 
protective of public health and the environment.

Initial Registration and Ongoing Reevaluation of Pesticides
    FIFRA generally requires that, before any pesticide may be sold or 
distributed in the United States, EPA must license its sale through a 
process called ``registration.'' During registration EPA has examined 
every pesticide product that is being lawfully marketed in our country. 
In addition, FIFRA also requires EPA to reexamine previously approved 
pesticides against current scientific and safety standards. A major 
effort to revaluate old pesticides occurred from 1988 to 2008 through a 
program called ``re-registration,'' and, as required by law, EPA is now 
systematically revisiting all of its past pesticide registration 
decisions through a new program called ``registration review.'' Any 
restrictions on the use of a pesticide identified through registration, 
re-registration, or registration review as necessary for safe use 
appear on product labels. State lead agencies enforce proper use of 
pesticides.
    Both the registration and reevaluation programs for evaluating the 
safety of pesticides rest on the same two fundamental principles: 
basing decisions on the best available, peer-reviewed science and 
making our decisions through a process that is transparent and open to 
everyone.

Quality Scientific Assessments
    EPA holds itself accountable to the public for ensuring the quality 
of its scientific risk assessments. EPA looks at all available 
scientific data from every source--whether from pesticide companies, 
other governments, or the published literature, and we look closely at 
every study. EPA reaches its conclusions through a systematic, 
objective evaluation of all relevant information that uses 
scientifically peer reviewed, documented procedures at each step.
    Under FIFRA, the pesticide companies shoulder the cost of 
performing safety studies on pesticides they request to be registered. 
EPA regulations establish a rigorous battery of tests necessary to gain 
approval for a pesticide. A typical new agricultural pesticide must 
undergo over 100 different tests to characterize its potential risks. 
This data set provides, among other things: detailed information on 
where and how the pesticide will be used; a full battery of animal 
models studies to assess human health toxicity; data on the fate of the 
pesticide in the aquatic and terrestrial environments; and a suite of 
toxicity studies representing broad categories of wildlife and plants--
birds, mammals, fish, terrestrial and aquatic plants, algae, insects, 
and other invertebrates. The pesticide companies submit these studies 
for review, and we use these and other scientific data to develop 
detailed risk assessments for every use of each pesticide. If a test is 
not scientifically sound or if EPA needs more information, EPA may 
require a company to conduct additional studies. Further, because of 
the critical role that scientific data play in EPA decision making, 
FIFRA requires registrants to report in an ongoing fashion all 
information relating to the potential adverse effects of their products 
on human health or the environment, for example, new research.
    Our first question is whether the results are scientifically sound. 
To assist in this review, EPA has issued both guidelines that provide 
instruction about how to conduct different types of studies and Good 
Laboratory Practice (GLP) regulations that describe procedures to 
ensure high quality data from laboratory studies. The reviewer double 
checks the analysis reported in a study and compares results from one 
test with other studies to detect inconsistencies. It is not unusual 
that EPA will disagree with the conclusions reached by an individual 
researcher. Then, following EPA risk assessment guidelines, we 
integrate the data to evaluate whether the pesticide poses potential 
risks to humans or the environment.
    To ensure we reach the sound scientific conclusions, study reviews 
and risk assessments undergo scientific peer review. When we encounter 
a significant scientific controversy, we turn to the FIFRA Scientific 
Advisory Panel (SAP) for independent, external, expert scientific peer 
review. The SAP is a Federal advisory committee and, thus, must comply 
with requirements for balance, objectivity, openness, and transparency. 
The Government Accountability Office commended the procedures used by 
the FIFRA SAP to assure balance and the absence of any conflicts of 
interest among the people who serve on panels. The Office of Government 
Ethics has also reviewed and commended highly the operations of the 
SAP.

An Open and Transparent Process
    EPA believes in an open and transparent process. By ``open'' we 
mean that every member of the public--whether from a stakeholder group 
or simply an interested citizen--can, at any time, provide information 
for consideration, and everyone may comment on our proposed decisions 
and the reasons for them. To make comment opportunities meaningful, our 
process must be transparent. By ``transparent'' we mean that all of the 
information we have considered, and the way we analyze the data, is 
available to the fullest extent permitted by law.
    Our regulatory processes typically provide several opportunities 
for comment. During registration review, for example, there are chances 
to comment on: a preliminary workplan on how the Agency will conduct 
the reevaluation; a preliminary assessment of the pesticide's risks; a 
written response to public comments on the preliminary risk assessment; 
and a revised risk assessment. We also invite comment on what measures 
are needed to address any risk concerns. We may hold public meetings 
for interested stakeholders to explain our positions and to receive 
input. Finally, we present our conclusions in a Registration Review 
Final Decision or similar documents. These documents contain our final 
risk assessment, our conclusions regarding whether the pesticide meets 
the statutory standard for re-registration, and if not, what regulatory 
measures would be necessary to mitigate identified risks. Similarly, we 
announce receipt of applications for registration of pesticide products 
containing new active ingredients and invite public comments. Then, 
before we decide whether to register such products, we publish and take 
comment on our risk assessment and proposed decision.
    In fact, whether we are dealing with issues concerning a specific 
pesticide or broader policy development, we actively reach out to and 
work closely with Congress, our state and Federal regulatory partners, 
the agricultural community, nongovernmental organizations, the general 
public, and all of our stakeholders.

Risk Assessment
    EPA uses peer reviewed procedures to analyze data to produce risk 
assessments, covering a wide range of potential effects on both humans 
and the environment. Although the data and models used will differ 
depending on what type of effect we are evaluating, the broad purpose 
of our risk assessments is to determine what levels of a pesticide will 
remain in the environment after use and how those levels compare with 
doses that could harm humans or the environment.
    For example, we follow the framework set out in the EPA-wide 
Ecological Risk Assessment Guidelines when assessing potential for a 
pesticide to cause adverse effects on the environment. The basic 
approach to ecological risk assessment has two components, a hazard 
evaluation and an exposure estimate. Toxicity studies in twenty or more 
different species generate data that permit EPA to determine levels for 
both short term and long term exposures which would be unlikely to harm 
wildlife and plants. Using these studies, EPA has developed and made 
publicly available ``aquatic life benchmarks'' for over 200 pesticide 
active ingredients and their degradates. Our benchmark values are 
estimates of the levels of residue in water below which the chemicals 
are not expected to harm aquatic life and aquatic ecosystems as a 
result of either short term or chronic exposure. The public and state 
and Federal agencies can use these values to assess the risks posed by 
any levels of pesticide found by monitoring programs.
    EPA also calculates exposure estimates using peer-reviewed models 
and scientific data on the persistence and mobility of each pesticide. 
A key value is an estimate of the concentrations of pesticide residues 
that may be present in surface waters as a result of direct 
application, runoff, or drift. EPA uses these values both in assessing 
risks to humans from consumption of drinking water, as well as in the 
evaluation of risks to aquatic ecosystems. The models employ data in 
such a way that the resulting estimates represent the amounts of 
pesticide that more highly exposed humans, wildlife, and non-target 
plants will likely receive. EPA then compares the toxicity of the 
pesticide with the expected environmental exposure to assess whether 
there is a potential risk.

Risk Management
    The risk assessment then goes to EPA's risk managers to consider 
whether regulatory actions may be appropriate to mitigate the potential 
risks. Under FIFRA the Agency can impose a variety of risk mitigation 
measures--ranging, for example, from changes to how the pesticide is 
used to prohibition of specific uses or cancellation of all products 
containing a particular active ingredient--that ensure the use of the 
pesticide will not cause unreasonable adverse effects on the 
environment. When we are concerned about the risks arising from 
pesticides in water, we may require a reduction in application 
frequency or rates, a prohibition of certain application methods, the 
establishment of no-spray buffer zones around water bodies, a 
requirement that limits use only to trained and certified applicators, 
or other restrictions. These measures are typically national in scope, 
applying to all users throughout the country, but increasingly, we are 
designing protective restrictions that apply in specific geographic 
areas to address risks arising from local conditions. These 
requirements are communicated to users through the labeling of the 
pesticide product. The use directions and restrictions in labeling are 
enforceable under FIFRA section 12(a)(2)(G), which makes it unlawful to 
use a registered pesticide in a manner inconsistent with its labeling.

Pesticide Reevaluation
    In addition to requiring an initial review of every pesticide 
product through the registration program, FIFRA allows EPA to take 
regulatory actions as necessary to revise the restrictions on the use 
of a pesticide and directs EPA to periodically revisit past regulatory 
decisions on previously registered pesticides through the re-
registration and registration review programs.
    The re-registration program was conducted from 1988 to 2008 during 
which EPA reexamined all pesticide products containing an active 
ingredient that was initially registered before 1984. Re-registration 
evaluated 613 different pesticide active ingredients/active ingredient 
groups, using contemporary scientific and regulatory standards. Re-
registration led to extensive changes in the way pesticides are allowed 
to be used that has significantly reduced risks to human health and the 
environment. As a result of re-registration, EPA cancelled all products 
containing 229 different pesticide active ingredients and imposed many 
changes on the ways that most of the other 384 pesticide active 
ingredients are used.
    Changes in science, public policy, and pesticide use practices 
continue to occur, meaning that prior regulatory decisions can become 
outdated over time. In 1996, Congress unanimously passed the Food 
Quality Protection Act (FQPA), which among other things, mandated a 
new, ongoing program: ``registration review.'' Under the registration 
review program, we must reevaluate all previously registered pesticides 
at least every 15 years to make sure that products in the marketplace 
can still be used safely. The new registration review program makes 
sure that, as the ability to assess risk evolves and as public policy 
and pesticide use practices change, all registered pesticides continue 
to meet the statutory standard of no unreasonable adverse effects.
    As one part of the registration review program, EPA has worked with 
state regulatory officials to develop a process for the voluntary 
submission of state and tribal surface and ground water quality data 
for consideration in exposure characterizations for ecological risk 
assessments and in risk management decisions. EPA will review these 
data to identify any pesticides that are being found in ground or 
surface water, as a result of lawful use, at levels which exceed 
existing human health or environmental safety benchmarks. If ongoing 
monitoring or other information indicates that there are unsafe levels 
of pesticide residue in water, EPA will impose additional risk 
mitigation measures, as needed to ensure the pesticide meets the 
statutory standard.

Conclusion
    The regulatory restrictions imposed by EPA under FIFRA directly 
control the amount of pesticide available for transport to surface 
waters, either by reducing the absolute amount of pesticide applied, or 
by changing application conditions to make transport of applied 
pesticide less likely. In sum, EPA uses its full regulatory authority 
under FIFRA to ensure that pesticides do not cause unreasonable adverse 
effects on human health or the environment, including our nation's 
water resources.
                               Attachment



 Schmidt. Thank you very much, Dr. Bradbury. Very excellent testimony 
and your written is even more comprehensive than your oral. I am going 
  to ask a few questions and then I am going to defer to the Ranking 
 Member on the Nutrition and Horticulture Subcommittee and then to Mr. 
Gibbs who then will be able to ask questions and then Mr. Gibbs can ask 
Mr. Bishop and then we will recognize any other Committee person based 
  on their seniority who is present. So Mr.--Dr. Bradbury, could you 
comment on the discussion draft and whether it takes us back to before 
    the Cotton Council decision?Dr. Bradbury. EPA's office of General 
Counsel provided legal assistance to the Committee on the question that 
you just raised on how to achieve the goal described in your question. 
We take our function in providing technical assistance to Congress 
seriously. And although I am not a lawyer, according to the Office of 
General Counsel, EPA's legal technical assistance has been incorporated 
in the discussion draft.
    Mrs. Schmidt. Thank you. And has the EPA sought additional 
authority under FIFRA to address perceived problems associated with 
pesticides in surface water?
    Dr. Bradbury. No, EPA has not sought additional authority under 
FIFRA.
    Mrs. Schmidt. And in--finally, are there benefits to the use of 
pesticides and if so, how does the EPA account for this during your 
review?
    Dr. Bradbury. As I alluded to in my opening comments, pesticides 
provide significant benefits to our society. These include controlling 
insects and rodents that can transmit disease, they are clearly very 
important in crop production ensuring that we have a safe and abundant 
food supply by controlling weeds, insects, pathogens in crop 
production. Pesticides also are important in protecting our private, 
public, and commercial dwellings by, for example, controlling termite 
infestations. And pesticides also are important in sanitizing our 
drinking water, recreational waters, as well as serving as 
disinfection--disinfectant products in our homes as well as in 
hospitals and nursing homes.
    So EPA takes a look at the benefits associated with the pesticide 
that is either proposed to come into the marketplace, or as we 
reevaluate existing pesticides that are in the marketplace. As we go 
through our risk assessment and risk management decision making, the 
first step is to determine whether or not the risks posed by the 
pesticide reach a level of concern. If we determine that the pesticides 
are not going to cause concern for human health or the environment we 
don't need to do a benefits analysis because we have assured ourselves 
that there is no unreasonable adverse effects that would occur with the 
product.
    If we determine that there may be concerns that we are exceeding 
our threshold of risk concern, one of the first steps we do is take a 
look at how that product is used. And therein, many times we can make 
adjustments to the application rate or the amount that is used or other 
modest or minor alterations or adaptations to the current product and 
then the product is safe and it can be used with minimal impact for the 
grower, for example. If we find that those modifications aren't 
sufficient and have to look into changes in the product's use that 
could be more significant, then we will do an analysis to understand 
what the value of the current product is in terms of, say, crop 
production or other kinds of activities and compare that to 
alternatives that may be in the market and we take a look at to the 
extent alternative products in the market could achieve the same goals 
of public health protection or crop production. And by going through 
this analysis we can then make a conclusion to ensure that if the 
product is used it will obtain its benefits but not cause unreasonable 
adverse effects to human health or the environment.
    Mrs. Schmidt. Thank you. I have no further questions at this time 
so I am now going to ask Mr. Baca if he has any questions.
    Mr. Baca. Thank you very much, Madam Chair. Mr. Bradbury, thank you 
again very much for taking the time to be here with us this afternoon 
to help us better understand how EPA regulates the pesticides under the 
FIFRA. To start off with a more technical question, how do you assess 
chronic exposure to pesticides?
    Dr. Bradbury. The methods that we use in our risk assessments are 
based on methodology that has gone through significant independent 
scientific peer review through a science advisory panel. And an area 
that we have had a long record of external peer review are the methods 
that we use to estimate pesticide concentrations in water. So when we 
do an analysis to estimate what the concentrations of the pesticide 
will be in water we use models that allow us to predict what the 
concentrations will be in various water types based on the use pattern 
of the product. In addition, we take a look at any monitoring data that 
is available and we integrate both the monitoring data that may be 
available as well as the model predictions of the exposure 
concentrations in water. And we will do exposure concentration 
estimates for drinking water sources and we will do exposure estimates 
for water bodies that are associated with aquatic life risk 
assessments.
    For chronic exposures, depending upon the organism that we are 
trying to protect, and could be humans, could be aquatic life, we have 
different averaging periods to make that estimate. So for example, for 
a long term exposure to humans we calculate yearly averages, lifetime 
averages of exposure. If we are concerned about effects on invertebrate 
species, insects that are in the water, that averaging period is a 21 
day averaging day period. So we use our models to come up with 
estimates of what the concentrations will be in the water and we use 
the appropriate averaging period or the time that we will calculate 
that chronic exposure based on the focus of the risk assessment.
    Mr. Baca. Okay. How do you assess acute exposure to pesticides?
    Dr. Bradbury. It is the same basic procedure. When we--again we 
will take a look at any monitoring data that is available and we will 
also use our models to make these predictions. When we make our 
modeling runs, our predictions using these models, it is based on 30 
years of meteorological data and other types of data that we can use in 
developing these estimates. And so we can calculate a 30 year 
distribution of likely exposure concentrations in the water. We then 
pick an upper bound estimate of the potential exposure from an acute 
exposure for an acute exposure, say a 1 day exposure and we use that in 
our risk assessment. So as we have gone through the peer review 
process, we have gotten feedback from independent experts in terms of 
how to use these models and to ensure that the way we are using these 
models provide for a protective evaluation of acute exposure as well as 
chronic exposure in our risk assessments.
    Mr. Baca. Now, it seems from your testimony that EPA already has a 
very restraining testing and risk assessment standard for all pesticide 
producers. In fact, the state that under the FIFRA, pesticide 
produces--products must go through over 100 different tests to ensure 
their safety. But can you please tell us a bit more about how the risk 
actually mitigates under the FIFRA?
    Dr. Bradbury. So after the team of scientists undertake the risk 
assessments based on the proposed use, if it is a new product or based 
on the existing use instructions, if it is product that is already in 
the environment, they will complete that risk assessment and as I said 
before if that risk assessment indicates that there aren't any risks of 
concern then there is no reason to focus in on risk mitigation options. 
But if we do have risks of a concern, we will then go through a series 
of analyses looking at different ways that product could be used and 
then reevaluating what the risk picture would look like. And as I 
indicated in my opening comments, sometimes it can be as simple as 
changing the application rate by a few tenths of a pound or changing 
the timing between application times so that we change the exposure 
scenario and then change the risk picture. We can use other kinds of 
methods and may change the time of day that a product is used, so we 
have a variety of approaches that we can use to mitigate the risk if 
the risks we find are such that the product can't meet that reasonable 
certainty of no harm or avoidance of an unreasonable adverse effect, we 
can go all the way up to canceling the product and not allowing the 
product to be on the market. So we go through a series of evaluations 
that could ultimately lead to cancellation of a product if there is no 
way to get the risk to be acceptable under the statue.
    Mr. Baca. Well, is there any reason to believe that in NPDES, 
permitting will further mitigate risk?
    Dr. Bradbury. Well, what I can speak to today is the activities in 
my office undertake in terms of FIFRA and the work that we do as I have 
indicated before is designed to undertake risk assessments using the 
best available peer reviewed science, combined that with our risk 
mitigation authorities under FIFRA to ensure that there is not going to 
be unreasonable adverse effects with the use of a pesticide.
    Mr. Baca. Okay. Madam Chair, if I may follow--I know that my time 
has run out, but if I may ask----
    Mrs. Schmidt. There are so many people here to ask questions. I 
know we are rushed.
    Mr. Baca. Thank you.
    Mrs. Schmidt. Tongue in check.
    Mr. Baca. It is my understanding that there has been some 
difference of opinion regarding the EPA's estimate for additional 
amount of costs that the NPDES permitting would bring to our states. As 
you know in my home State of California is currently facing a $25 
billion deficit. Any additional regulatory costs become virtually 
unobtainable. Can you please explain to--for our Committees in greater 
details the process EPA uses when estimating the potential cost of a 
proposed regulation?
    Dr. Bradbury. In a context of this general permit under the NPDES 
program the Office of Water has the primary responsibility in 
developing the proposal and the proposed permit and in my office we 
don't have that direct involvement in that--those costing estimates.
    Mr. Baca. So how do you guys talk to one another if you don't do 
that?
    Dr. Bradbury. We definitely talk to each other. The expertise in 
terms of calculating the costs of a permit, how a permit is implemented 
in the country and the associated costs with that is the primary 
responsibility of our colleagues in the Office of Water. We could 
provide to the Committee some additional background information if that 
would be helpful in terms of the calculations that are associated with 
the proposal.
    Mr. Baca. Okay. Do you believe that the current figures EPA 
proposed for the NPDES rules around $1.7 million is a new cost for 
states is accurate? Why and why not?
    Dr. Bradbury. Again, as the Director of the Pesticide Program, I 
don't have immediate involvement in those calculations. The 
calculations that were undertaken included public comment and 
participation. I know the process my colleagues in the Office of Water 
use, and they reflect the agency's best estimate as to the cost 
associated with the proposed permit.
    Mr. Baca. Okay. Thank you, Madam Chair, for allowing me the 
additional time. I yield back.
    Mrs. Schmidt. Thank you and now I will turn the attention over to 
the Chairman of the Subcommittee on Water Resources and Environment, 
Mr. Gibbs from Ohio.
    Mr. Gibbs. Thank you, Madam Chair. Thank you for coming in, Dr. 
Bradbury, and for your assistance and your agency's to help resolve 
this issue before the growing season gets underway. It is my 
understanding that the EPA evaluates pesticides during the registration 
process and again during the registration review process. Is there an 
example you can discuss where the agency has addressed the problem of 
pesticide exposure in water through either the registration or 
registration review process?
    Dr. Bradbury. Yes, a good example would be taking a look at the re-
registration that EPA completed in--there are approximately 600 
pesticide active ingredients that were evaluated in that re-
registration program. And in that activity, that regulatory process 
approximately \1/3\ of those products were cancelled due to 
unacceptable risk projections. And for the remaining approximately \2/
3\ we made significant alterations in the licensing to ensure no 
unreasonable adverse effects would occur. The organophosphate 
insecticides are one group of products that were in that re-
registration program and some examples of the activities, the risk 
assessment, and risk management decisions that we undertook made 
significant changes in dozens of those organophosphate pesticides. In 
some cases it required vegetative buffer strips of between 10 feet and 
800 feet to minimize the likelihood that pesticide runoff could get 
into receiving bodies. For dozens of pesticides we also took a look at 
aerial application and prohibited aerial application for a number of 
products so that we would minimize a potential spray drift into 
receiving bodies. And we also changed application rates and application 
frequency requirements on 10-12 pesticides that covered a number of 
crops. These are examples of the kinds of mitigation measures that we 
could put into play to protect water resources.
    Mr. Gibbs. Great. How does the EPA pesticide program account for 
exposure through drinking water when evaluating dietary exposure to 
pesticides?
    Dr. Bradbury. The exposure modeling and the evaluation of existing 
monitoring data that I described previously on the question about 
aquatic ecological risk is the same basic framework that we use for 
assessing exposure to humans. In this case the scenarios that we are 
doing our modeling on are based on drinking water reservoirs and 
sources of drinking water for populations across the country. And 
again, using scientifically peer reviewed models we can estimate 
drinking water concentrations at various exposure times from a single 
day exposure, hour exposure, to a lifetime exposure. And we use those 
estimates of chronic exposure in the drinking water and we also combine 
that with any residues that could be occurring in food due to the 
pesticide and do an aggregate exposure estimate and then a risk 
estimate. So we use the same basic tools of modeling and monitoring 
data and we combine that information with any residues that may be in 
food to have a complete holistic assessment of the potential risk of 
the chemical.
    Mr. Gibbs. This is my final question. Are there examples of 
pesticide where EPA has identified an unreasonable risk to surface 
water and has taken action to phase out that chemical?
    Dr. Bradbury. I think one example that is illustrative of the topic 
we are talking about today goes back to the re-registration program and 
the work that we were doing in looking at the organophosphate 
pesticides. One of those pesticides is Diazinon, in the early 2000's as 
we were taking a look at that product and its reevaluation, we were 
looking at the monitoring data that was coming from the USGS as they 
were doing their 10 years review. With their information, combined with 
our modeling information, we came to the conclusion that in urban 
waters, urban streams, streams in residential areas that there were 
excessive levels of the product in the water that could cause adverse 
effects to aquatic vertebrates, insects in this case. And through those 
concerns as well as other concerns in the residential area we made a 
decision to phase out the use of Diazinon in the residential setting. 
And since the time of that decision through USGS data that is coming in 
the concentrations of Diazinon in the water bodies have dropped between 
20 and 40 percent just over the last couple of years as that phase out 
was implemented.
    Mr. Gibbs. Thank you. I will turn it over to the Ranking Member of 
the Water Resources and Environment Subcommittee, Mr. Bishop.
    Mr. Bishop. Thank you, Mr. Chairman. And Dr. Bradbury, thank you 
for your testimony. Clearly the threshold issue here is whether or not 
the current FIFRA process provides sufficient protection to our 
nation's waters or whether enforcement under the Clean Water Act would 
provide an additional tool. So what is currently on the table is a 
draft proposal for a pesticide general permit under the Clean Water Act 
that as I understand it would essentially require pesticide applicators 
to do two things: first, require that they be in compliance with 
existing FIFRA requirements, and second that they pursue a set of 
practices that are generally lumped under the heading of integrated 
pest management. Is that correct?
    Dr. Bradbury. Yes, that is my understanding.
    Mr. Bishop. So let me ask you a couple of questions about current 
FIFRA process. Under the current FIFRA implementation process are 
pesticide applicators required to be trained?
    Dr. Bradbury. If it is a restricted use pesticide, yes, they have 
to undergo a training in some----
    Mr. Bishop. But some may apply without training, is that correct?
    Dr. Bradbury. If it is a general use pesticide, yes.
    Mr. Bishop. Okay. Are the applicators required to maintain and 
calibrate their equipment?
    Dr. Bradbury. The use instructions for the restricted use pesticide 
will specify the acceptable rates associated with the application. And 
in the context of doing that, the performance outcome would be that 
they are using their equipment properly to ensure that they don't 
exceed the rates that are specified on the label.
    Mr. Bishop. Okay. Are they required to mix and load pesticides 
properly?
    Dr. Bradbury. Yes.
    Mr. Bishop. Okay. Are they required to properly dispose of used 
pesticide containers?
    Dr. Bradbury. We have regulations that specify the process for 
dealing with used pesticide containers, yes.
    Mr. Bishop. Are they required to use the lowest amount of pesticide 
necessary to meet their--meet the needs?
    Dr. Bradbury. The pesticide label provides an upper bound of the 
amount of pesticide that can be used to control a specific pest in a 
specific cropping scenario. The actual use rate that a grower may use 
typically is less than what the maximum amount is on the label as they 
weight the pest pressure, and the appropriate product, and the 
appropriate weight of the product to deal with the pest pressure that 
they have.
    Mr. Bishop. Last question in this area--are they required to 
consider alternatives to pesticide application?
    Dr. Bradbury. In our labels we do not require that. However, we 
have a very extensive pesticide stewardship program where we are 
working with USDA and others in promoting integrated pest management in 
our overall program in the pesticide program. But they are not required 
on the label typically.
    Mr. Bishop. As I am sure you know, what I just have asked you are 
the basic components of what is considered an integrated pest 
management program. The implementation of those, I mean, if the answers 
to all of those were yes and if I have followed you correctly the 
answers to most of them were already yes, would you agree that the 
general use or pardon me, the pesticide general permit that is 
currently being proposed represents a reasonable response on the part 
of the EPA to this court ruling?
    Dr. Bradbury. Well, what I can speak to today is the process that 
we use under FIFRA in terms of assuring that the use of a pesticide 
does not cause unreasonable adverse affects and that includes the risk 
assessment process that I described and the mitigation measures that 
are expressed through our labeling which is how we enforce our 
decisions, as well as some of the stewardship programs that we use.
    Mr. Bishop. Let me ask you one other question. Under current FIFRA 
what information does the EPA receive with respect to the interaction 
of pesticides?
    Dr. Bradbury. So with respect--is the question around mixtures of 
chemicals in water?
    Mr. Bishop. Exactly.
    Dr. Bradbury. Right. The analyses that we do for a pesticide active 
ingredient includes an evaluation of not only the active ingredient 
itself, but also the inert materials, the other materials that are in 
the formulated product to understand what those risks could be to 
workers as well as the acute and potentially chronic effects of those 
mixtures. So we take a look at the formulated product as well as the 
active ingredient in our risk assessments.
    Mr. Bishop. The USGS testimony that has been submitted for the 
record indicates that the fact that there are pesticide mixtures adds 
uncertainty to the conclusions of potential adverse impacts that may be 
reached and that further research in this particular area is required. 
Do you agree with that?
    Dr. Bradbury. Yes, and the EPA office working with our colleagues 
in USGS are working together, as well as others in the scientific 
community working on advancing the science and trying to understand at 
what levels of exposure translate to potential risks.
    Mr. Bishop. Okay. Thank you very much. Thank you, Madam Chair.
    Mrs. Schmidt. Thank you very much. The gentleman from California, 
Mr. Costa has--is not a Member of the Subcommittee but a Member of the 
full Agriculture Committee and he has just joined us. And I have 
consulted with the Ranking Member and we are pleased that he is here 
and welcome any questions he might have of this witness.
    Mr. Costa. Thank you very much, Madam Chairperson. I am not certain 
that Dr. Bradbury may have already addressed these issues, but how long 
have you been with the Environmental Protection Agency?
    Dr. Bradbury. I joined the Environmental Protection Agency in 1985.
    Mr. Costa. Okay. So you have a bit of experience. I am looking at 
it from another segment notwithstanding the efforts that we are 
discussing here this afternoon. Integrated pest management programs on 
both the Federal level and as it relates to various states across the 
country has been something that has been for lack a better term a work 
in progress for a number of years. Hearkening back to my days in 
Sacramento when we attempted to put together a fairly aggressive effort 
in integrated pest management programs in some cases maybe one could 
state that we were ahead of the curve, one of the problems that we had 
was trying to get some level of harmony between the Federal level of 
the regulations and what we were doing in California and it created 
problems. There was an effort to do a harmony program to put the two 
together and other states that had similar efforts that were ongoing. 
And I guess in light of what we are talking about this afternoon, how 
you would make an assessment as to where the current needs are frankly, 
states that have been doing this for many years I don't want to 
reinvent the wheel, I guess is what I am saying. You understand where I 
am coming from?
    Dr. Bradbury. I think, but please jump in if I am misinterpreting 
your question and I will try to be more responsive. From a broader--
from a broad perspective we spend a lot of time and effort working with 
our colleagues in the states, the states lead agencies that are 
responsible for implementing and enforcing the pesticide labeling and 
the pesticide administration----
    Mr. Costa. Right, both for restrictive materials, both herbicides 
and pesticides.
    Dr. Bradbury.--right and we have a close working relationship with 
these associations of our state lead agencies----
    Mr. Costa. Right.
    Dr. Bradbury.--to try to work through----
    Mr. Costa. And when the state law exceeds the Federal law.
    Dr. Bradbury. And that--the states always have the ability to go 
beyond if you will----
    Mr. Costa. Yes.
    Dr. Bradbury.--what the Federal decisions are and so that can play 
out from state to state. And we are also working with the states to 
better integrate and harmonize----
    Mr. Costa. But----
    Dr. Bradbury.--our approaches to try to reduce burden for them as 
well as try to create as much efficiency as we can.
    Mr. Costa. Right I mean we shouldn't reduplicate the process when 
we are talking about registering, when we are talking about application 
of protocols----
    Dr. Bradbury. Right.
    Mr. Costa.--that deal with health and safety. So how well do you 
think you are doing that right now?
    Dr. Bradbury. I think we are doing well. I think there is always 
room to advance and keep a well functioning relationship and continue 
to improve that relationship. And it is one of the areas that we invest 
our time and effort closely with our state colleagues to identify 
issues to work on, try to prioritize that so that we can try to 
increase harmonization and efficiencies for both groups.
    Mr. Costa. Do you step back and say look at these states are in 
some sort of a criteria that you may have on a check off list saying 
you know they do all this. We don't need to cover this?
    Dr. Bradbury. If I am understanding our question correctly that to 
the extent a state wants to implement the--their oversight of the 
pesticide regulations, the Federal, say, licensing decisions to the 
extent that they wish to go beyond that we don't get into their work. 
We communicate and have dialogue to make sure we all understand what 
their decision making is, and then other states we are focusing on just 
how to even----
    Mr. Costa. Well, in other states you become the de facto 
implementer and the enforcer of the regulation.
    Dr. Bradbury. Well, to date it has not been my experience that we 
have had a situation where that has played out in terms of the states 
maintaining their roles and responsibilities in the overall FIFRA 
framework.
    Mr. Costa. All right, thank you very much, Madam Chairwoman.
    Mrs. Schmidt. I will ask if any other Members have any questions. 
If not, thank you very much, Dr. Bradbury for your excellent testimony. 
We appreciate your help in this matter and now I would like to invite 
up the second panel of witnesses and I would defer to the Ranking 
Member, Mr. Baca, to introduce the first witness.
    Mr. Baca. We will wait a second until they settle down, but I want 
to thank the second panelists for coming in and addressing us on an 
important issue and it gives me great pleasure to introduce one of the 
panelists, but I thank all of you for being here. It is a pleasure to 
introduce Honorable John Salazar. John was appointed to the position of 
Commissioner of Agriculture for the State of California earlier this 
year.
    Mr. Costa. I thought it was Colorado.
    Mr. Baca. It was Colorado. That is right. I was looking at his tan. 
I was looking, thinking about the tan he has so he must have been in 
California.
    Mr. Costa. We will take him any day.
    Mr. Baca. For the State of Colorado earlier this year--a six 
generation farmer, rancher, served a 3 year term here in the House 
representing Colorado's Third Congressional District. John also served 
as a Member of the House Agriculture Committee and played a key role in 
passing the historic Farm Bill of 2008. And before that time in 
Congress, John served in the Colorado General Assembly. He also served 
on the Rio Grande Water Conservation District, the Colorado 
Agricultural Leadership Forum, and the Colorado Agricultural 
Commission. He is a proud veteran and it is my pleasure to have served 
with him not only in the Agriculture Committee, but also as a Member of 
the Congressional Hispanic Caucus and also a Member of the Blue Dog 
Coalition. Commissioner Salazar, thank you for being here with us and 
we look forward to seeing you again and look forward to hearing from 
you.
    Mr. Salazar. Thank you.
    Mrs. Schmidt. Thank you and I would also like to welcome 
Commissioner Salazar to the table. In addition to all that you said, he 
is also a proud father of three boys and has a couple of grandchildren 
and living the good life. Welcome to the Committee. In addition, and I 
apologize for not knowing the rest of the witnesses as intimately as we 
know Mr. Salazar, but he was a colleague and I believe still is a 
colleague for all of us here in the House. Our second witness is Dr. 
Andrew Fisk, Bureau Director of the Land and Water Quality Maine 
Department of Environmental Protection on behalf the Association of 
State and Interstate Water Pollution Control Administrators from 
Augusta, Maine. We also have Mr. Dominic Ninivaggi. Did I say that 
correctly?
    Mr. Ninivaggi. It is Ninivaggi.
    Mrs. Schmidt. Ninivaggi.
    Mr. Ninivaggi. Yes.
    Mrs. Schmidt. Ninivaggi, I am sorry. Superintendent of the Division 
of Vector Control, Suffolk County Department of Public Works on behalf 
of the American Mosquito Control Association of Yaphank, New York. Did 
I say that correctly?
    Mr. Ninivaggi. That is correct.
    Mrs. Schmidt. And you are accompanied by Mr. David Brown, Manager 
of the Sacramento-Yolo Mosquito and Vector Control District in Elk 
Grove, California. And then our final witness is Mr. Norm Semanko, 
Executive Director of the Idaho Water Users Association on behalf of 
National Water Resources Association in Boise, Idaho. Welcome gentlemen 
and we will begin with Mr. Salazar.

             STATEMENT OF HON. JOHN SALAZAR, COMMISSIONER,
COLORADO DEPARTMENT OF AGRICULTURE, LAKEWOOD, CO; ON BEHALF OF NATIONAL 
                          ASSOCIATION OF STATE
                       DEPARTMENTS OF AGRICULTURE

    Mr. Salazar. Well, thank you, Madam Chair, Chairwoman Schmidt, 
Chairman Gibbs, and Ranking Member Baca, and Congressman Costa for 
allowing me to be here with you and other Members of the Committee. 
Thank you for holding this important joint hearing today to examine the 
ramifications of the 6th Circuit decision in National Cotton Council v. 
EPA. It is good to be back with you. During my time in Congress I 
served on both the Agriculture and the Transportation and 
Infrastructure Committees and was recently appointed by Governor John 
Hickenlooper to lead the Colorado Department of Agriculture. I look 
forward to discussing this very important issue with you today.
    A little over a year ago I joined many of you and a bipartisan 
group of other lawmakers asking the U.S. Supreme Court to intervene in 
this decision. Because the Court declined to act, we are now in a 
situation where the only remedy is for Congress to intervene. I am 
testifying today on the behalf of the National Association of State 
Departments of Agriculture as well as the Colorado Department of 
Agriculture. NASDA represents the commissioners, secretaries and 
directors of the state departments of agriculture in all 50 states and 
four territories. Forty-three of NASDA's members are co-regulators with 
EPA under the state primacy provisions of the Federal Insecticide, 
Fungicide, and Rodenticide Act named FIFRA. In addition to other 
pesticide regulatory responsibilities, state departments of agriculture 
are significant users of pesticides as administrators of state mosquito 
control programs, other wide area pest suppression activities, and 
invasive species control programs. Most of these activities will 
require NPDES permits in the wake of the 6th Circuit ruling.
    Shortly after passing the Clean Water Act, Congress also passed 
major amendments to FIFRA in 1972. It is clear that FIFRA's legislative 
record that Congress intended FIFRA to be the controlling statute to 
regulate the registration, sales, and use of pesticide products. 
Moreover, it is clear from the House Committee Report on these FIFRA 
Amendments that Congress contemplated the impact of pesticides on 
intrastate and navigatable waters and intended these issues to be 
addressed by FIFRA, not by the Clean Water Act.
    It is no secret the states across the country face dire budget 
constraints. It is very difficult to justify diverting even more 
resources to manage paperwork for a permit that is duplicative of other 
regulatory programs and has no appreciative environmental benefits. For 
example, in the State of Colorado, the Department of Public Health and 
Environment (CDPHE), the regulatory authority for NPDES estimates a 25 
to 70 percent increase in permit applications because of these new 
requirements and as many as seven FTE's to cover the additional 
workload.
    While the brunt of the cost to the states will be borne by our 
counterparts in state water and environmental agencies, state 
departments of agriculture will also be forced to divert resources away 
from legitimate regulatory activities such as worker protection and 
enforcement programs many of which have important and quantifiable 
environmental benefits. State departments of agriculture will have to 
devote significant resources to coordinating with other state agencies 
on permit design and implementation activities. Many state departments 
of agriculture and other state agencies are responsible for extensive 
mosquito control activities and programs to combat invasive and 
economically devastating pests such as Gypsy Moth and Mountain Pine 
Beetles.
    A very real concern is whether states will continue to have the 
flexibility and resources to manage these pests appropriately. The 
likelihood of receiving increased Federal funding to deal with these 
new requirements is virtually zero. We will therefore be forced to 
spend our scarce resources on filling out paperwork for a duplicative 
permit instead of treating invasive species, controlling for 
mosquitoes, or keeping our waterway free of vegetation that restricts 
the flow of water.
    Diverting resources from these important activities is 
irresponsible and will have a very real public health and economic 
impact across this country. A public health consequence of this cannot 
be emphasized enough. West Nile Virus and encephalitis are all very 
real public health concerns and mitigation of which depends on the use 
of pesticide to control mosquito populations. Since 2003, Colorado has 
experienced 91 deaths associated with West Nile Virus. In 2003 alone, 
Colorado led the nation with 63 deaths from West Nile Virus. However, 
in 2004, widespread mosquito programs were initiated statewide that 
have kept annual deaths under seven fatalities per year since. These 
vital public health activities will be threatened if Congress does not 
act.
    The State of Colorado estimates that either a half or a full time 
employee will be required for each business and other permittees to 
manage all of these elements to ensure that the entity remains in 
compliance with the NPDES permit requirements. At a minimum, the 
combined estimated annual costs for Colorado and municipalities and the 
commercial industry for NPDES permits implementation is over $21 
million. In reality, it is likely that this cost will be significantly 
higher. It is important to emphasize that EPA has estimated that 
nationwide it will cost permittees about $50 million annually to comply 
with just the information collection requirements of this permit.
    Again, if the State of Colorado's estimate is reflective of the 
cost in other states, permittees will most assuredly face costs several 
orders of magnitude greater than the EPA estimate. Additionally many 
states have been required by state statute to include waters of the 
state as additional waterways covered by this permit. This in many 
cases dramatically expands the number of applications and pesticide 
users covered and will significantly increase the costs associated with 
the 6th Circuit's ruling.
    Finally, we must be mindful of the unintended consequence of these 
permitting requirements. Depending on the increase in the cost of an 
application service or the difficulty to comply with all these elements 
of the permit, there may be those who choose not to make pesticide 
applications at all. Failure to make necessary applications may result 
in a domino effect that could result in additional negative impacts. 
For example, this could lead to a situation where a noxious weed 
spreads into new areas or in Colorado, the failure to control noxious 
weeds in waterways may result in decreasing water flow to ag production 
and downstream states that depend on water from Colorado. Thank you.
    [The prepared statement of Mr. Salazar follows:]

    Prepared Statement of Hon. John Salazar, Commissioner, Colorado
         Department of Agriculture, Lakewood, CO; on Behalf of
        National Association of State Departments of Agriculture

    Chairwoman Schmidt, Chairman Gibbs, Ranking Member Baca and Ranking 
Member Bishop, thank you for holding this important joint hearing today 
to examine the ramifications of the 6th Circuit's decision in National 
Cotton Council v. EPA.
    It is good to be back with all of you. During my time in Congress I 
served on both the Agriculture and Transportation and Infrastructure 
Committees and was recently appointed by Governor John Hickenlooper to 
lead the Colorado Department of Agriculture. I look forward to 
discussing this very important issue with you today. A little over a 
year ago I joined many of you and a bipartisan group of other lawmakers 
asking the U.S. Supreme Court to intervene in this decision. Because 
the Court declined to act, we are now in a situation where the only 
remedy is for Congress to intervene.
    I am testifying today on behalf of the National Association of 
State Departments of Agriculture as well as the Colorado Department of 
Agriculture. NASDA represents the commissioners, secretaries, and 
directors of the state departments of agriculture in all fifty states 
and four territories. State departments of agriculture are responsible 
for a wide range of programs including food safety, combating the 
introduction and spread of plant and animal diseases, and fostering the 
economic vitality of our rural communities. Environmental protection 
and conservation are also among our chief responsibilities.
    Forty-three of NASDA's members are co-regulators with EPA under the 
state primacy provisions of the Federal Insecticide, Fungicide and 
Rodenticide Act (FIFRA). Our agencies are the lead state agencies 
responsible for administering, implementing and enforcing the laws 
regulating pesticide labeling, distribution, and use in our states.
    In addition to our pesticide regulatory responsibilities, state 
departments of agriculture are significant users of pesticides as 
administrators of state mosquito control programs, other wide-area pest 
suppression activities, and invasive-species control programs. Most of 
these activities will require NPDES permitting in the wake of the 6th 
Circuit's ruling.
    This ruling, if not remedied by Congress, will require pesticide 
applicators to be permitted under the Clean Water Act's National 
Pollutant Discharge Elimination System (NPDES) for pesticide 
applications made in, over, or near waters of the U.S.
    It is important to understand that FIFRA established a 
comprehensive and effective regulatory web to provide pesticide-related 
environmental and public health protection through requirements for 
pesticide registration, labeling, and use that are the end result of an 
extensive pre-market approval process. This registration process 
requires products to meet strict safety guidelines and includes 
rigorous examination of environmental fate data and health exposure 
assessments.
    Shortly after passing the Clean Water Act, Congress also passed 
major amendments to FIFRA in 1972. It is clear from FIFRA's legislative 
record that Congress intended FIFRA to be the controlling statute to 
regulate the registration, sales and use of pesticide products. 
Moreover, it is clear from the House Committee Report on these FIFRA 
amendments that Congress contemplated the impacts of pesticides on 
interstate and navigable waters and intended these issues to be 
addressed by FIFRA, not the Clean Water Act.

    However, the 6th Circuit's ruling has forced us into a situation 
that contradicts the original intent of Congress. It will require EPA 
and the states to expend significant resources to issue permits under 
the Clean Water Act for activities that are already regulated by FIFRA 
and state pesticide laws. 

    It is no secret that states across the country face dire budget 
situations and many have had to close state parks, cancel 
transportation projects and cut funding to higher education. It is very 
difficult to justify diverting even more resources to manage paperwork 
for a permit that is duplicative of other regulatory programs and has 
no appreciable environmental benefits.
    For example, in the State of Colorado, the Department of Public 
Health and Environment (CDPHE), the regulatory authority for NPDES, 
estimates a 25 percent increase in permit applications because of these 
new requirements and as many as seven FTE's to cover the additional 
workload. EPA has estimated that the reporting and record keeping 
associated with these requirements alone will cost state permitting 
authorities approximately $1.7 million a year. However, if Colorado's 
estimates are reflective of the situation in other states, the true 
costs to states will quickly outstrip EPA's estimates.
    While the brunt of the costs to states will be borne by our 
counterparts in state water and environmental agencies, state 
departments of agriculture will also be forced to divert resources away 
from legitimate regulatory activities, such as worker protection and 
enforcement programs, many of which have important and quantifiable 
environmental benefits. State departments of agriculture will have to 
devote significant resources to coordinating with other state agencies 
on permit design and implementation activities. Also, our departments 
are expending significant resources conducting outreach to pesticide 
applicators licensed by our departments and will, in a number of 
states, play a role in enforcing certain provisions of state permits.

    States and state departments of agriculture will also face enormous 
costs as permittees in the wake of the 6th Circuit's ruling. 

    Many state departments of agriculture and other state agencies are 
responsible for extensive mosquito control activities and programs to 
combat invasive and economically devastating pests such as the gypsy 
moth and mountain pine beetles. A very real concern is whether states 
will continue to have the flexibility and resources to manage these 
pests appropriately.
    The likelihood of receiving increased funding to deal with these 
new requirements is virtually zero. We will, therefore, be forced to 
spend our scarce resources on filling out paperwork for a duplicative 
permit instead of treating invasive species, controlling for mosquitos, 
or keeping our waterways free of vegetation that restricts the flow of 
water. Diverting resources from these important activities is 
irresponsible and will have very real public health and economic 
impacts across the country.
    The public health consequences of this cannot be emphasized enough. 
West Nile Virus, Dengue Fever, and Encephalitis are all very real 
public health concerns, the mitigation of which depends on the use of 
pesticides to control mosquito populations. Since 2003 Colorado has 
experienced ninety-one deaths associated with West Nile Virus (WNV). In 
2003, Colorado led the nation with sixty-three deaths from WNV. 
However, in 2004 wide spread mosquito programs were initiated statewide 
that have kept annual deaths under seven fatalities per year since. 
These vital public health activities will be threatened if Congress 
does not act.
    Moreover, the vital programs states administer to control invasive 
species could suffer significantly because of these permit 
requirements. For example, treatments that are needed in order to 
prevent pest infestations in trees and our forests could be unable to 
be made because of resource constraints or permitting delays. The 
resulting defoliation could actually increase the temperature of 
streams that depend upon these trees to maintain appropriate water 
temperature and conditions. Ironically, these Clean Water Act permits 
could lead to the impairment of our nation's waterways.

    Counties, municipalities, public utilities, water districts, 
mosquito control districts, commercial applicators, farmers, ranchers, 
and forest managers will also be significantly impacted by costs 
associated with managing and documenting the permit requirements. 

    The State of Colorado estimates that a either half or full time 
employee will be required for businesses and other permittees to manage 
all of these elements to ensure the entity remains in compliance with 
the NPDES permit requirements. Colorado projects that if this employee 
were paid at our state's minimum wage, it would cost a business on 
average over $15,000 annually for one full time employee to manage the 
elements of the permit. It is important to point out that this is 
figured at the minimum wage and may not reflect the actual average wage 
for each employee. In addition, it does not account for materials and 
supplies needed, additional insurance or workman's compensation 
expenses the entity must absorb.
    At a minimum, the combined estimated annual costs for Colorado 
municipalities and the commercial industry for NPDES implementation is 
over $21 million. In reality, it is likely this cost will be 
significantly higher. Because this is new and there are so many 
uncertainties about jurisdiction, we don't know how much this will cost 
fully. It is important to emphasize that EPA has estimated that 
nationwide it will cost permittees $50 million annually to comply with 
just the information collection requirements of this permit. Again, if 
the State of Colorado's estimate is reflective of the costs in other 
states, permittees will most assuredly face costs several orders of 
magnitude greater than this EPA estimate. Additionally, many states 
have been required by state statute to include ``Waters of the State'' 
as additional waterways covered by the permit. This, in many cases, 
dramatically expands the number of applications and pesticide users 
covered and will significantly increase the costs associated with the 
6th Circuit's ruling.
    Because of this ruling, a huge number of applicators will have to 
comply with NPDES permitting requirements to which they have never 
before been subjected. It is not unreasonable to expect that a number 
of these permittees could find themselves in situations where even 
minor paperwork violations that have no actual impact on environmental 
protection will lead to significant penalties under the Clean Water 
Act. Currently those penalties are $37,500 per day per violation. While 
some of the original targets of NPDES permit requirements may be able 
to bear the burden of these penalties and other costs associated with 
NPDES permits, the small businesses and public health entities that 
represent the Majority of those required to obtain permits under this 
decision will face significant financial difficulties.
    Additionally, and perhaps most significantly for the many small 
businesses and other users of pesticides, is the threat of lawsuits 
under the Clean Water Act's citizen action provisions. There is still 
significant confusion and uncertainty about what pesticide applications 
fall under the 6th Circuit's mandate and could, therefore be left 
vulnerable to lawsuits. If Congress does not act, I fear agricultural 
producers and other pesticide users will be forced to defend themselves 
against litigation. I might also add that this uncertainty would likely 
increase the costs to state regulators because agricultural producers 
may decide to err on the side of caution and apply for coverage under 
this permit, even though they would neither need permit coverage, nor 
be eligible for coverage. States would be left in a situation where we 
would have to expend resources dealing with these kinds of issues.
    Finally, we must be mindful of the unintended consequences of these 
permitting requirements. Depending on the increase in the cost of an 
application service or the difficulty to comply with all elements of 
the permit, there may be those who choose to not make pesticide 
applications at all. Failure to make necessary applications may result 
in a domino effect that could result in additional negative impacts. 
For example, this could lead to a situation where noxious weeds spread 
into new areas. Or, in Colorado the failure to control noxious weeds in 
water ways may result in decreased water flow to agricultural 
production and downstream states that depend on water from Colorado.
    Congress must act to clarify that pesticides applied in accordance 
with FIFRA are not subject to NPDES permitting requirements under the 
CWA.

    Mrs. Schmidt. Thank you and now I will call on my next 
witness, Mr.--Dr. Fisk.

         STATEMENT OF DR. ANDREW FISK, DIRECTOR, MAINE
          BUREAU OF LAND AND WATER QUALITY; PRESIDENT,
           ASSOCIATION OF STATE AND INTERSTATE WATER
         POLLUTION CONTROL ADMINISTRATORS, AUGUSTA, ME

    Dr. Fisk. Good afternoon. Chairwoman Schmidt, Chairman 
Gibbs, Members of the Committee, thank you for allowing me to 
speak today. I am here representing the 46 states and 
interstates that administer the Clean Water Act. We are those 
entities that implement your goal of restoring and maintaining 
the chemical, physical, and biological integrity of the 
nation's waters and we take that task to heart every day in our 
jobs. As you well know, the Clean Water Act works along setting 
of goals. After setting goals you create standards and criteria 
to enforce those goals, you monitor, you assess, you write 
permits, and you enforce those permits in what we hope is a 
virtuous circle so that we meet your big ambitious goal.
    I would apologize a bit if I appear a bit slouched. My 
mother, probably like yours always told me that I should sit up 
straight. States are feeling a little slouched. As you have 
heard back in 1991, we had about 100,000 sources that were 
regulated by the NPDES permit program. It is now in excess of 
500,000. This program will bring it to over 900,000 potential 
sources nationally.
    This is clearly an era of diminished resources. The states 
maintain high expectations and we do not have diminished 
expectations despite diminished resources. So what we are 
saying is we need to know where do we put our resources to the 
best effect. This is clearly an issue for us and we look 
carefully at our position on how you regulate pesticides. You 
can imagine what I am going to say next. Yes, there is not 
enough money to do our jobs. I won't bore you or go through all 
the gory details, but we can demonstrate that there is not 
enough money to do the work that we currently have. That is a 
consideration for us, so again, we look very carefully at where 
we are going to put our resources for the most effect.
    When we look at this issue, and we are again, the agencies 
that are charged with 46 of us writing a NPDES permit for 
pesticide applications in our state, we look around with EPA 
and say what would this permit contain? What we find is we look 
at FIFRA and the authorities and practices that are contained 
within FIFRA that we then would then put inside our permit.
    I hope I don't oversimplify this for my colleagues who are 
far more expert in pesticide application, but essentially what 
do you do to control pesticide application. You minimize the 
amount of pesticide that you use, you would apply it at the 
right time and in the right place, and then you use buffers and 
setbacks. I think you can safely say all the practices we have 
talked about probably fit in those categories. We are looking 
at those to put inside our permit. So we are asking ourselves 
if we are bringing FIFRA inside the Clean Water Act is that 
really the best use of our resources when we have so many other 
things that we need to do. We are comfortable at this point in 
our understanding that there are adequate authorities in FIFRA 
and our position is if the question is are we doing enough to 
maintain and improve our nation's waters, look and cast a 
weather eye on FIFRA. Don't ask the Clean Water Act to do this.
    That said, we recognize that there are pesticides in 
waters. We are very familiar with the USGS work. You can see 
and detect pesticides in over 90 percent of streams that were 
sampled by USGS. Ten percent of those streams have human health 
impacts. Somewhere around 50 percent of those streams will have 
impacts in aquatic life. That said, there is some interesting 
results from that USGS study. It says when you use less of 
those pesticides, less shows up in the water. It says also that 
in instances where there have been decreased concentrations of 
certain pesticides, Atrazine and Metolachlor in certain streams 
you have actually seen increased usage in those watersheds. 
USGS surmises that means that practices are restraining the 
input of pesticides to our streams. We think you should be 
looking at: How do you develop practices and requirements under 
FIFRA to keep those trends heading in the right direction?
    Our last point here is that there are significant legal 
liability questions and people that approach me and say will 
this permit cover this activity or that, we have enough 
questions to say that it is an open question whether there is 
legal liability for a range of pesticide applicators. And then 
I would just close and point that we do support the testimony 
from the Committee many years ago that talked about what FIFRA 
should be doing.
    [The prepared statement of Dr. Fisk follows:]

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

    Good, afternoon, Chairman Gibbs, Chairwoman Schmidt, and Members of 
the Subcommittees:

    My name is Andrew Fisk and I am the Director of the State of 
Maine's Bureau of Land and Water Quality and the current President of 
the Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA). I have been working in state environmental 
quality programs for 13 years.
    ASIWPCA is the national, nonpartisan, professional organization of 
state and interstate agencies responsible for the implementation of 
water protection programs throughout the nation. ASIWPCA celebrates its 
50th Anniversary this year and was created by states and interstates to 
lead the way in realizing a vision for clean water in America. As the 
national voice of state and interstate water programs (hereafter 
referred to collectively as states), ASIWPCA's members are responsible 
as co-regulators for on-the-ground implementation of the Clean Water 
Act (CWA). We are the institutions who, under the authorities delegated 
to us by the United States (U.S.) Environmental Protection Agency (EPA) 
via the CWA, issue permits to control and limit discharges to waters of 
the United States.
    We are on the front lines of CWA monitoring, inspection, 
compliance, and enforcement across the country. Our members are 
responsible for implementing Congress's goal of restoring and 
maintaining the chemical, biological, and physical integrity of our 
nation's waters.
    We take that task to heart every day.
    I am pleased to present testimony on behalf of ASIWPCA today 
regarding the impact of the National Cotton Council \1\ case on state 
water quality programs. This case held that pesticide applications to 
U.S. waters must be permitted under the CWA, despite their regulation 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
---------------------------------------------------------------------------
    \1\ Nat'l Cotton Council v. U.S. Envtl. Protect. Agency, 553 F.3d 
927 (6th Cir. 2009) (hereinafter ``National Cotton Council'').
---------------------------------------------------------------------------
Overview
    For nearly three decades, the application of pesticides to water 
was regulated under FIFRA, not the CWA. A series of lawsuits in the 
1990s, however, yielded a trio of 9th Circuit Court of Appeals 
decisions \2\ which when taken together held that these pesticide 
applications also needed CWA National Pollutant Discharge Elimination 
System (NPDES) permits. To clear up the confusion, EPA promulgated a 
final regulation in 2006 to clearly exempt certain applications of 
aquatic pesticides \3\ from the CWA's NPDES program. EPA's final rule 
was challenged in the 6th Circuit, and in 2009, the National Cotton 
Council court held that EPA's longstanding approach to this matter was 
not entitled to deference and its interpretation of the CWA was 
unreasonable, and thus vacated EPA's final rule. The National Cotton 
Council decision exposed pesticide applicators and states to CWA 
liability. With the support of many affected entities, including 
ASIWPCA, EPA sought a 2 year stay of the court's mandate. Since 2009, 
EPA has worked diligently and closely with states on a good faith 
effort to develop a workable general permit model under the CWA for 
applications of pesticides to water. Over the same time, states across 
the nation began devoting resources to developing their own state 
general permits for such applications.
---------------------------------------------------------------------------
    \2\ Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th 
Cir. 2001) (Application of an herbicide to irrigation canals to control 
aquatic weeds and vegetation requires an NPDES permit. Application of 
the pesticides leaves residue after pesticide application performed its 
intended effect. In Talent, the applicator violated the FIFRA label 
requirement to contain the herbicide-laden water in an irrigation canal 
for a specified number of days, which eventually lead to a large fish 
kill in a downstream creek.); League of Wilderness Defenders v. 
Forsgren, 309 F.3d 1181 (9th Cir. 2002) (Aerial application of 
pesticide to control gypsy moths constituted a point source discharge 
subject to NPDES permitting. In Fosgren, the court did not decide 
whether the pesticide was a pollutant or not because the Forest Service 
had conceded that point at the District Court level. Id.); Fairhurst v. 
Hagener, 422 F.3d 1146 (9th Cir. 2005) (Pesticides intentionally 
applied directly to a lake to eliminate non-native fish species, where 
there are no residues or unintended effects, are not ``pollutants'' 
under the CWA because they are not chemical wastes). It is important to 
note that ASIWPCA went on record with EPA at many points after these 
decisions urging EPA not to apply the decisions nationally.
    \3\ EPA states ``that the application of a pesticide in compliance 
with relevant requirements of FIFRA does not require an NPDES permit in 
two specific circumstances. The first circumstance is when the 
application of the pesticide is made directly to waters of the United 
States to control pests that are present in the water. The second 
circumstance is when the application of the pesticide is made to 
control pests that are over, including near, waters of the United 
States.'' See Application of Pesticides to Waters of the United States 
in Compliance with FIFRA, 71 Fed. Reg. 68483 (Nov. 27, 2006)).
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    The general permits being developed must work for over 360,000 
(estimated) new permittees brought within the purview of the NPDES 
program by the National Cotton Council court. Adding sources to the 
NPDES program carries with it regulatory and administrative burdens for 
states beyond merely developing and then issuing permits. It goes 
without saying that a meaningful environmental regulatory program is 
more than a paper exercise. It is not just a permit. EPA and states 
must provide technical and compliance assistance, monitoring, and as 
needed, enforcement. These 360,000 new permittees do not bring with 
them additional Federal or state funding. In fact, Federal and state 
funding for water programs has been insufficient for a long time. See 
Figure 1, infra.
    Despite EPA's diligence, the complexities of implementing the 
National Cotton Council court's mandate have made it difficult for EPA 
to meet interim deadlines during the 2 year stay. EPA's final general 
permit is not yet complete. In order to provide a consistent framework, 
many states want to use this permit as a model for their own permit 
development. The stay of the court's mandate expires on April 9, 2011. 
Last week, ASIWPCA and other state regulatory organizations states 
requested that EPA pursue a 6 month extension of the stay.
    If sought by the Agency and granted by the court, a further stay 
may allow more states to finalize permits. However, no matter the 
duration, a stay does not address a fundamental question--is this the 
appropriate way to manage pesticide applications in or near water going 
forward? Is this necessary when another Federal statute already 
regulates these applications and provides states sufficient authority 
to regulate these discharges in consideration of local and site 
specific water quality issues?

Growth of the NPDES Program
    ASIWPCA and its state members are proud of the significant 
reductions in water pollution yielded by the NPDES program since its 
establishment. The NPDES program continues to work, although we are 
very concerned that it will be compromised by the addition of more and 
more sources to permit, at the same time as Federal funds to support 
the program decline. A strong Federal-state partnership, good data, 
adequate and sustainable funding, clear performance standards, and 
prioritization are at the heart of this program. The NPDES program has 
accomplished much due to its focus on predictable and manageable flows, 
identifiable end-of-pipe controls, extensive monitoring, and 
substantial Federal and state funding for treatment facilities and 
technologies. Pesticide permitting will touch hundreds of thousands of 
transient, mini-point sources very unlike those the NPDES program was 
designed to control.
    Since its inception, the NPDES program universe has continued to 
grow, not just because there has been an increase in the number of 
traditional industrial/municipal sources, but more profoundly because 
more and more new sources are added to the program as a result of 
litigation or new regulations. As you can see from Figure 1, the 
inclusion of municipal stormwater, construction stormwater, industrial 
stormwater, concentrated animal feeding operations, and most recently 
vessel discharges has vastly increased the NPDES program's scope.
    EPA's projection of more than 365,000 pesticide permittees would 
increase the size of state NPDES programs by 60 percent. This 
programmatic increase will not be equally distributed. Those states 
that require more pesticides applications for human health safety, 
habitat protection, and pest control will see the greatest increases 
and shoulder the greatest burdens.

Figure 1. NPDES Universe with Pesticides Permittee Projection



    \4\ Alaska is the 46th state and currently is receiving 
authorization in phases. EPA's general permit will apply in Alaska.
---------------------------------------------------------------------------
    The issuance of a NPDES permit is an expression of technology-based 
requirements, water quality standards, ambient water quality 
conditions, and where appropriate, a waste-load allocation derived from 
a total maximum daily load (TMDL). Incorporating water quality 
standards into permits can be a resource intensive process. Today's 
water quality standards today are scientifically more complex than 
those of the early days of the NPDES program. They often require 
specialized implementation in different ecological regions. The 
maturation of the TMDL program adds another layer of complexity, in 
that a permittee must be controlled within the context of its watershed 
and the other sources of pollution in that watershed.
    Pesticide applicators are unlike traditional NPDES permittees such 
as municipal treatment plants. It is nearly impossible to treat runoff 
from these dispersed applications to meet specific effluent 
limitations--which is what the CWA requires.
    So what do states do? We impose buffers or setbacks and require 
applicators to ensure they are using the right amount of chemicals, in 
the right places, at the right times. That is a sensible and 
responsible approach. We do not need the CWA to do this. FIFRA has that 
authority and ability. States also have their own authorities which let 
them take additional action they may deem necessary.
    The implications on state resources associated with adding 
pesticide applications to the NPDES program are far reaching. It bears 
repeating that states must not only develop permits, but then ensure 
compliance with general and individual permits, which requires 
inspections, monitoring, reporting, compliance assistance, outreach, 
training, and more. As a program matures, EPA more clearly defines 
expectations for drafting quality permits, inspection frequency, data 
collection and annual reporting, monitoring, and compliance assurance 
and enforcement activities. As administrative details are fleshed out 
for states and other regulators, the true cost of implementing this 
program will far exceed the initial estimates provided by EPA.\5\
---------------------------------------------------------------------------
    \5\ ASIWPCA is concerned that the economic analyses conducted by 
the Agency for this program dramatically underestimate the costs to 
states of the long term and continued oversight and management of this 
program--essentially, the full costs of its implementation.
---------------------------------------------------------------------------
    The NPDES program prevents the discharge of billions of pounds of 
pollutants to our nation's rivers, lakes, wetlands, and coastal waters 
each year. Measuring and reporting environmental progress and results 
are critical aspects of managing any environmental program. Measuring 
and reporting serves as a basis for communicating progress and 
maximizing public accountability. Given the limited resources available 
to implement the NPDES program, we must increasingly focus on 
meaningful planning to set priorities and utilize resources 
efficiently. With an increasing workload, resources are often drawn 
from base program activities that, in the long term, are critical to 
the NPDES program.
    In Maine, adding the 5,000 to 6,000 (estimated) new pesticide 
permittees to our NPDES program will draw resources away from the 1,100 
other regulated entities already in the program: 700 of these 1,100 are 
new to the Maine program due to regulatory developments over the past 5 
years. To credibly run our program to work with these businesses--many 
who have never seen a NPDES permit--I have brought on three additional 
staff. Imagine, then, the cumulative impact of this new program on all 
states.
    In preparation for this hearing, ASIWPCA asked states if they 
anticipated meaningful water quality improvements through permitting 
this new group of sources. Of those states able to respond in a tight 
timeframe, an overwhelming majority said no. Given the stretched state 
resources, it seems less than fruitful to have states regulating 
sources already covered under another environmental statute.
    In good faith, states have been making tremendous progress in the 
development and issuance of state general pesticide permits. However, 
we must emphasize that for over a decade, ASIWPCA has maintained that 
pesticide applications to water are better covered under FIFRA, as they 
were before National Cotton Council and earlier court decisions.
Declining Resources
    The nation depends on the CWA to protect water supplies, 
recreational areas, aquatic life, and other uses of our water 
resources. One of the principal funding sources for states' work is CWA 
Section 106 funding. In 2003, EPA, the states, the Government 
Accountability Office, and the National Academy of Public 
Administration were all in substantial agreement that the gap between 
actual and needed funding to support all CWA programs was between $800 
million and $1 billion annually.\6\ Since 2003, Federal mandates have 
only increased the workload for state programs.
---------------------------------------------------------------------------
    \6\ State Water Quality Management Resource Analysis Report (``[A]t 
the highest level of aggregation, this resource gap indicates that 
state agencies are receiving less than \1/2\ of the resources they need 
to fully implement the requirements of the Federal Clean Water Act.'').
---------------------------------------------------------------------------
    There are other less direct, but substantial pressures on states 
working to address today's water quality issues. They include high 
attrition rates of state NPDES permitting staff, state staff furloughs 
and retirements due to budget limitations, increasingly sophisticated 
and complex water quality issues, and numerous legal challenges 
requiring continued defense of state programs and actions.
    Figure 2 below provides context regarding  106 appropriations that 
highlights impacts that inflation has had on annual funding. These 
figures are devastating--one can only imagine the stress that a 60 
percent increase in the NPDES universe will have on states.\7\
---------------------------------------------------------------------------
    \7\ While some states charge fees for permits, these fees do not 
completely offset program costs nor do these fees always come directly 
back to the program. And, in the current economic climate, many state 
legislatures are unlikely to update permit fee funding legislation to 
support this new program.
---------------------------------------------------------------------------
Figure 2. Impacts of Inflation on Section 106 Funding to States



    Significant financial penalties are associated with CWA violations, 
including for paperwork violations, which could be very high as 
compared to the scope and scale of some pesticide operations. The CWA's 
citizen suit provisions also will expose pesticide applicators to 
costly legal defense obligations. Public health agencies will be 
similarly vulnerable to these CWA penalties, fines, citizen suits, and 
defense costs.

Conclusion
    Shortly after passing the CWA, Congress also passed major 
amendments to FIFRA which included Committee reports. Committee reports 
shed light on legislative intent. A 1971 House Committee Report \8\ on 
FIFRA is particularly helpful in this regard:
---------------------------------------------------------------------------
    \8\ H.R. Rep. No. 511, 92nd Cong., 1st Sess. 13 (1971) (emphasis 
added).

        ``The Congress hereby finds that pesticides are valuable to our 
        nation's agricultural production and to the protection of man 
        and the environment from insects, rodents, weeds, and other 
        forms of life which may be pests; but it is essential to the 
        public health and welfare that they be regulated closely to 
        prevent adverse effects on human life and the environment, 
        including pollution of interstate and navigable waters; . . . 
        and that regulation by the Administrator and cooperation by the 
        states and other jurisdictions as contemplated by the Act are 
        appropriate to prevent and eliminate the burdens upon 
        interstate and foreign commerce, to effectively regulate such 
        commerce, and to protect the public health and welfare and the 
---------------------------------------------------------------------------
        environment.''

    This language, in context with nearly three decades of FIFRA 
performing these functions, may be helpful as the Subcommittees study 
the impact of the National Cotton Council court decision.
    Thank you for your time and attention to my remarks today. It is a 
privilege to present to you and I am happy to answer any questions that 
you may have.

    Mr. Gibbs. Thank you, Dr. Fisk. Mr. Ninivaggi, please?

STATEMENT OF DOMINICK V. NINIVAGGI, SUPERINTENDENT, DIVISION OF 
                 VECTOR CONTROL, SUFFOLK COUNTY
          DEPARTMENT OF PUBLIC WORKS, YAPHANK, NY; ON
            BEHALF OF THE AMERICAN MOSQUITO CONTROL
 ASSOCIATION; ACCOMPANIED BY DAVID BROWN, MANAGER, SACRAMENTO-
                YOLO MOSQUITO AND VECTOR CONTROL
                    DISTRICT, ELK GROVE, CA

    Mr. Ninivaggi. Thank you very much for the opportunity to 
present the views of the American Mosquito Control Association 
to the Subcommittees on this vital public health issue today. I 
am Dominic Ninivaggi, the Superintendent of the Division of 
Vector Control in the Suffolk County Department of Public Works 
in New York. I am accompanied by David Brown, Manager of the 
Sacramento-Yolo Mosquito and Vector Control District. Together 
we have over 50 years of experience in vector control.
    Mosquito control is critically important to public health 
in the United States. Worldwide, mosquitoes cause more human 
suffering than any other organism. Over one million people die 
a year from mosquito-borne diseases. Such diseases include 
malaria and West Nile Virus, which was the most severe outbreak 
of mosquito-borne disease in the United States in decades. In 
the last 8 years, over 1,000 Americans have died and over 
1,000--over 10,000 have been hospitalized, some with severe 
permanent disabilities from this disease. Since the enactment 
of FIFRA and the Clean Water Act, EPA and the states have 
treated these laws as complementary rather than overlapping 
mechanisms for the regulating the risks of pesticides and water 
pollutants, respectively.
    However, beginning in 2001, many CWA citizen lawsuits were 
filed against publicly-funded mosquito control programs that 
apply pesticides to or near water. This led to considerable 
expense and curtailment of necessary programs as public health 
programs were facing litigation risks. In response to these 
suits, EPA published guidance clarifying the general 
inapplicability of the CWA to end-use pesticide applications. 
Moreover, in January of 2003, AMCA filed a petition with EPA 
requesting that the agency adopt a formal regulation clarifying 
the CWA obligations of those that apply pesticides to or near 
water in material compliance with FIFRA and its regulations.
    EPA subsequently issued a final rule concluding that 
pesticide applications for mosquito control when conducted 
substantially in accordance with the FIFRA labels did not 
constitute a ``discharge of pollutants to waters of the United 
States''. EPA made clear that that in the regulations it 
requires registrants among other things to provide data to 
establish the potential impacts from their use including 
effects on water quality and aquatic organisms. Unfortunately, 
the 6th Circuit disagreed with EPA and invalidated the rule. 
The court determined that it was Congress's intent in 
establishing the CWA to subject pesticides to its requirements. 
As a result, NPDES and NPDES permits would be required for 
these pesticide applications that previously had been covered 
by the rule. In response to the 6th Circuit decision, AMCA and 
a host of other interested persons asked EPA to file an appeal 
with the U.S. Supreme Court. The agency declined those requests 
and instead adopted a course of trying to develop a general 
permit to cover as many pesticide applications as possible 
while recognizing that there would be some instances where an 
individual permit would be required. By necessity we have tried 
to participate in the general permit development process all 
the while maintain that the 6th Circuit was wrong.
    By including pesticide applications under the Clean Water 
Act the decision greatly expands the number of entities that 
will now need a NPDES permit. Currently the program encompasses 
approximately 520,000 permitted facilities. EPA estimates at a 
minimum the 6th Circuit decision will require an additional 
365,000 so-called applicators to seek permits for approximately 
5.6 million pesticide applications a year. As we approach April 
9, 2011, the date where the 6th Circuit mandate goes into 
effect, EPA has not yet released a general permit. As a result, 
we and other mosquito control programs face the difficult 
choice: either suspend pesticide applications thereby placing 
in jeopardy the public health and welfare, or place ourselves 
in substantial legal jeopardy from citizen lawsuits while 
continuing to use pesticides in carrying out our mission to 
protect the public.
    Let me just take a moment to explain the nature of our 
pesticide application activities. First, it is important to 
understand that all applications are done in accordance with 
the label of the product. Second, we are using ultra-low 
volumes of products that are vastly smaller than an individual 
homeowner would apply. To give you a reference point, given out 
scientific capabilities, we are able to apply approximately \1/
3\ of a shot glass of product per acre. A homeowner applies 
about 64 times that dose to get the same effect.
    As you are aware, under the CWA civil penalties from such 
suits may be up to $37,500 a day. I am personally familiar with 
litigation under the CWA because Suffolk County was sued under 
the Act. While the county prevailed in district court, the case 
was ultimately settled during the appeals process. However, its 
defense was a significant burden on the county. We also believe 
that there is a high likelihood of litigation against EPA by 
some activist groups challenging the provisions of any general 
permit issued pushing for an expansion of instances where an 
individual permit would be necessary.
    Consequently, it appears that absent Congressional 
clarification we in the agency will be stuck in this--excuse 
me--this judicial morass for some time with precious resources 
being devoted to justifying a CWA program which we have 
consistently maintained was never intended by Congress to cover 
pesticide applications that were in substantial compliance with 
labeled use directions. In interest of ensuring that mosquito 
control districts across the country are able to maintain and 
continue to perform their vital public health functions, we 
respectfully request Congressional action to resolve this 
issue. Thank you again for allowing me to present our views 
today. Dave and I will be happy answer any questions you may 
have. Thank you.
    [The prepared statement of Mr. Ninivaggi follows:]

 Prepared Statement of Dominick V. Ninivaggi, Superintendent, Division 
of Vector Control, Suffolk County Department of Public Works, Yaphank, 
         NY; on Behalf of American Mosquito Control Association

    I am Dominick V. Ninivaggi, Superintendent Division of Vector 
Control Suffolk County Department of Public Works, New York. I am 
accompanied by David Brown, Manager of the Sacramento-Yolo Mosquito and 
Vector Control District, Elk Grove California. I have been involved in 
mosquito vector control for more than 24 years. David has similarly 
been involved in California in excess of 27 years.
    Prior to joining Suffolk Vector Control in 1994, I held positions 
as an Oceanographer for the Army Corps of Engineers and as a Marine 
Resources Specialist for the New York State Department of Environmental 
Conservation. I hold a Bachelors of Science degree in Biology from 
Southampton College and a Masters Degree in Marine Environmental 
Sciences from Stony Brook University. My background in environmental 
science has proven very useful in directing Suffolk County's program, 
because much of our activities center on coastal wetlands. The County 
has a strong commitment to protecting those wetlands and other natural 
resources, while still protecting the public from mosquitoes and the 
diseases they transmit. Part of that commitment is the County's $4.5 
million Vector Control and Wetlands Management Long Term Plan and 
Generic Environmental Impact Statement. The Plan is a comprehensive 
study of the public health and environmental effects of the County's 
mosquito control program and associated wetland management activities. 
In addition to playing a major role in the preparation of this 
environmental plan, I have also participated in the development of the 
national and New York State West Nile Virus response plans.
    David Brown has been employed with the Sacramento-Yolo Mosquito and 
Vector Control District (``SYMVCD'') since 1983. He has been Manager of 
the District since 1996. He received his Bachelors Degree in 
Environmental Studies from California State University of Sacramento. 
He is a Past President of both the American Mosquito Control 
Association (AMCA) and the California Mosquito and Vector Control 
Association. Under his management the SYMVCD has received the 
prestigious IPM Innovator Award for the development of a comprehensive 
integrated mosquito management program and a premiere public outreach 
program. He has worked to harmonize the development of waterfowl and 
wetland habitat that reduces mosquito production and the need to use 
pesticides through Best Management Practices. He is recognized for his 
efforts on publications such as ``Best Management Practices for 
Mosquito Control on California State Properties'' (California 
Department of Public Health June 2008) and ``Technical Guide to Best 
Management Practices for Mosquito Control in Wetlands'' (Central Valley 
Joint Venture June 2004)
    We are both members of the AMCA. The AMCA is a not-for-profit 
professional association of approximately 1,700 public health 
officials, academicians, county trustee/commissioners and mosquito 
control professionals dedicated to providing leadership, information 
and education leading to the enhancement of health and quality of life 
through the suppression of mosquito and other vector transmitted 
diseases and the reduction of annoyance levels caused by mosquitoes and 
other vectors and pests of public health importance. This is 
accomplished, in part, through the use of Federal and state registered 
public health pesticides.
    We thank the Members of both Subcommittees for holding this 
important hearing regarding the regulatory burdens posed by the 
National Cotton Council v. EPA (6th. Cir. 2009) and to review related 
draft legislation. The decision of the 6th Circuit and its 
implementation by the U.S. Environmental Protection Agency (EPA) have 
very significant adverse consequences on the ability of the mosquito 
control associations throughout our nation to protect the public health 
and welfare. Consequently the subcommittees are to be commended for 
taking the time to review this important matter.

Background
    Mosquito control is critically important to public health in the 
United States. Worldwide, mosquitoes cause more human suffering than 
any other organism--over one million people die from mosquito-borne 
diseases every year.\1\ One such disease is malaria.\2\ Although 
malaria was eradicated in the United States during the twentieth 
century through the use of pesticides, the Center for Disease Control 
(CDC) cautions that ``the two species [of mosquito] that were 
responsible for transmission prior to eradication . . . are still 
widely prevalent; thus there is a constant risk that malaria could be 
reintroduced in the United States.'' \3\ Currently, only malaria 
prevention techniques, including the spraying of insecticides that 
target mosquitoes, prevent malaria from reemerging in the United 
States.
---------------------------------------------------------------------------
    \1\ Mosquito-Borne Diseases, American Mosquito Control Association, 
available at http://www.mosquito.org/mosquito-information/mosquito-
borne.aspx.
    \2\ http://www.cdc.gov/malaria/.
    \3\ See, Eradication of Malaria in the United States (1947-1951), 
available at http://www.cdc.gov/malaria/history/index.htm#eradications.
---------------------------------------------------------------------------
    Other mosquito-borne diseases are still present in the United 
States, including St. Louis Encephalitis,\4\ Eastern Equine 
Encephalitis,\5\ Western Equine Encephalitis,\6\ Dengue Fever,\7\ and 
West Nile Virus.\8\ There is no known vaccine or effective cure for any 
of these diseases; they are prevented only by controlling mosquito 
populations. In particular, West Nile Virus, the most severe outbreak 
of mosquito-borne disease in the United States in decades, continues to 
impact many parts of the country. Over 1,000 Americans have died, and 
over 10,000 hospitalized, some with severe permanent disabilities, from 
this mosquito-borne disease in the last eight years.
---------------------------------------------------------------------------
    \4\ http://www.cdc.gov/ncidod/dvbid/arbor/sle_qa.htm.
    \5\ http://www.cdc.gov/ncidod/dvbid/arbor/eeefact.htm.
    \6\ http://www.cdc.gov/ncidod/dvbid/arbor/weefact.htm.
    \7\ http://www.cdc.gov/ncidod/dvbid/dengue/index.htm.
    \8\ http://www.cdc.gov/ncidod/dvbid/westnile/index.htm.
---------------------------------------------------------------------------
    Since the essentially concurrent enactment of the Federal 
Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Clean Water 
Act (CWA) in 1972, EPA and the states have treated these laws as 
complementary, rather than overlapping, mechanisms for regulating the 
risks of pesticides and water pollutants, respectively. However, 
beginning in 2001, many CWA citizen lawsuits were filed against 
entities that apply pesticides to or near water, and in particular 
against publicly-funded mosquito control programs, many of which are 
AMCA members. This led to considerable expense and the curtailment of 
necessary programs, as public health programs faced litigation risks.
    In response to these suits, EPA published a series of interpretive 
memos reiterating and clarifying the general inapplicability of the CWA 
to end-use pesticide applications. Moreover, in January 2003 AMCA filed 
a petition with EPA requesting that the Agency adopt a formal 
regulation clarifying the CWA obligations of those that apply 
pesticides to or near water in material compliance with FIFRA and its 
regulations. EPA responded to the AMCA petition through the publication 
of a proposed rule. Appropriately, after reviewing the status of 
pesticides specifically labeled for application to or near water, EPA 
issued a final rule, concluding that their application, when conducted 
substantially in accord with their FIFRA labels, did not constitute a 
``discharge of pollutants to waters of the United States.'' EPA made 
clear that in the registration of pesticides, it requires registrants 
among other things, to provide data to establish the potential impacts 
from their use, including effects on water quality and aquatic 
organisms (See for example 40 CFR Part 158 Subpart G). Essentially the 
agency through its Office of Pesticide Programs conducts an impact 
assessment on water quality and non-target organisms including aquatic 
organisms under FIFRA in registering the products. To be eligible for 
registration, the data and information available to the EPA has to 
establish that when used in accordance with label requirements, the 
pesticide does not present an unreasonable risk to man or the 
environment, including water quality and non target organisms. This 
effectively achieves the goals of the CWA.
    Unfortunately, the 6th Circuit disagreed with EPA, and it 
invalidated the interpretive rule. The court determined that it was 
Congress's intent in establishing the CWA to subject pesticides, 
whether chemical or biological products to its requirements. As a 
result, NPDES permits would be required for those pesticide 
applications that previously had been covered by the rule.
    In response to the 6th Circuit decision, AMCA together with a host 
of other interested persons asked EPA to file an appeal with the U.S. 
Supreme Court. Despite the widespread impacts of the decision to 
applications involving the private sector, the Federal Government and 
state and municipal programs, the Agency declined those requests. 
Instead, the Agency adopted a course of trying to develop a general 
permit to cover as many pesticide applications as possible, while 
recognizing that there would be some instances where an individual 
permit would be required. Through AMCA, by necessity we have tried to 
participate in the general permit development process, all the while 
maintaining that the 6th Circuit's decision was wrong.
    In the more than thirty-five years of administering the CWA, the 
EPA never issued an NPDES permit for the application of pesticides. By 
including pesticide applications under the CWA, the Sixth Circuit 
decision greatly expands the number of entities that will now need an 
NPDES permit. Currently, the NPDES program encompasses approximately 
520,000 permitted facilities. EPA estimates, at a minimum, the 6th 
Circuit decision will require an additional 365,000 so-called 
``applicators'' to seek permits for approximately 5.6 million pesticide 
applications per year. This represents a nearly two-fold increase in 
the volume of NPDES permits to be issued. The paperwork burden has been 
estimated by EPA to be approximately $50,000,000 per year, and AMCA has 
advised EPA why it believes that the burden will be far in excess of 
that estimate.
    For mosquito control districts, the 6th Circuit decision has 
resulted in AMCA members trying to work with EPA and the states in 
determining how a permit process would be developed, and be implemented 
with the least degree of burden on mosquito control operations. 
Frankly, we recognized that the burden on our programs' limited 
resources including both financial and personnel would be significant. 
Further, we believe that there will be additional operational impacts 
on the districts' ability to use various pesticides which had been 
registered for use as public health pesticides, not because they would 
present any significant risk to water quality or non-target organisms, 
but simply because there would now be another set of regulators who 
would be reviewing these products, and there was little likelihood that 
those regulators would simply adopt the reviews and conclusions of 
EPA's Office of Pesticide Programs. Bureaucracies do not function that 
way.
    As we approach April 9, 2011, the date when the 6th Circuit mandate 
goes into effect, EPA has not yet released the final general permit. As 
a result, we and other mosquito control programs face a difficult 
choice. Either suspend pesticide applications thereby placing in 
jeopardy the public's health and welfare, or continue to use pesticides 
in carrying out our mission to protect the public. However in that 
latter situation, we place ourselves in substantial legal jeopardy from 
citizen suits. As you are aware, under the CWA, the civil penalties 
from such suits may be up to $37,500 per day. To the extent that there 
may be those who may think that the potential for such suits is not 
real, you should be aware that immediately after the issuance of the 
6th Circuit's decision, 21 mosquito districts in California received 60 
day notices from private attorneys of their intent to sue those 
districts for failure to have an NPDES permit.
    I am personally familiar with the threat of litigation to a 
mosquito control program under the CWA, because Suffolk County was sued 
under the Act. While the County prevailed in District Court, the case 
was ultimately settled during the appeals process. However, defending 
the suit was a significant burden on the County, with millions of 
documents produced during discovery, many depositions and some 14 hours 
I spent on the witness stand. I would not want to see any other program 
put through such a process as we conduct our work of protecting the 
public health and the environment, especially since this process 
resulted in no significant changes to the County's already stringent 
environmental protections.
    If a NPDES permit is issued, the potential plaintiffs' attorneys 
also will likely focus on whether the district permitee has complied 
with all its terms and conditions. We also believe that there is a high 
likelihood of litigation against EPA by some activist groups 
challenging the provisions of any general permit issued as well as 
seeking to expand the instances which should be covered by an 
individual permit rather than a general permit. Consequently, it 
appears that absent Congressional clarification, we and the Agency will 
be stuck in this judicial morass for some time, with precious resources 
being devoted to justifying a CWA program which we have consistently 
maintained was never intended by Congress to cover pesticide 
applications that were in substantial compliance with labeled use 
directions.

Impacts of the Decision of the 6th Circuit and its implementation by 
        the EPA
    The draft pesticide general permit (``PGP'') developed by EPA 
consists of nine parts: (1) Coverage, (2) Technology based effluent 
levels, (3) Water quality-based effluent levels, (4) Site monitoring, 
(5) Pesticide Discharge Management Plan (PDMP) (6) Corrective actions 
(7) Annual reporting and recordkeeping (8) EPA Contact information and 
mailing addresses and (9) Permit conditions applicable to specific 
states, Indian country lands or territorial and tribal requirements. 
The AMCA provided 30 pages of comments during the comment period 
identifying problems with the draft PGP and questioning the rationale 
underlying many of its components.
    AMCA also highlighted the Agency's gross underestimation of costs 
associated with permit implementation that would be borne by 
municipalities and private mosquito control entities. The AMCA provided 
an in-depth cost analysis based upon district input which projected 
that many of the 1,105 smaller municipalities with limited resources 
would likely cease operations if subject to the increased labor costs 
resulting from having to file Notices of Intent (NOI) to be subject to 
the permit and PDMP developments and amendments, preparation of annual 
reports necessary to satisfy state and regional water boards, purchase 
and use of surveillance equipment. This would leave local constituents 
without protection from mosquito-borne diseases. Of equal concern was 
the loss of on-site mosquito control capacity that could be called upon 
for relief operations, particularly after hurricanes or other natural 
disasters.
    The development and deployment of a PDMP as stipulated in the PGP 
is of significant concern for the 1,105 smaller agencies worried that 
their lack of comprehensive surveillance and control assets might be 
cause for litigation. All 734 AMCA member districts practice control of 
mosquitoes based upon a demonstrated need, surveillance trapping, 
requests for service, and/or disease surveillance from the state or 
Federal Government. Specific methods employed may vary depending on 
resource availability. Use of biological controls and source reduction 
are included as program elements when deemed necessary, practical and 
economically feasible. However, the PDMP, as currently proposed, 
suggests certain Integrated Pest Management (IPM) measures could be 
mandated (for example, requiring a certain number of traps in a 
location or allowing the public to question and overrule through 
litigation the best professional judgment of marginally funded 
entities), or requiring impractical levels of habitat modifications or 
biocontrol measures that are beyond the capabilities of a great many of 
the smaller control entities. For example, habitat modification 
requires expertise of wetland hydrology, permitting, species needs to 
name just a few of the requirements. Many mosquito control agencies 
would not have the resources to hire and retain a vector biologist to 
perform these functions. As a result, mosquito control will simply 
disappear in many of the less affluent rural areas of the country, 
adding an environmental justice dimension to the issue.
    Furthermore, the IPM procedures required in the draft PGP will 
exceed many small jurisdictions' ability to perform over the long term 
without additional sustainable funding sources. While small entities 
could develop a preliminary IPM program as outlined in the PGP with 
funding assistance, the programs should be monitored to provide 
information to improve performance and lessen chemical usage in 
subsequent years. This is equivalent to an ``adaptive management'' 
approach where data are collected during initial start up and used to 
incrementally improve management efficacy in successive years. Funding 
for this activity, however, is not available. Currently, many public 
health departments are experiencing cuts in their operating budgets, 
initiating furloughs, etc.
    By way of example, one mosquito control program in North Carolina 
estimates it will need to quadruple its annual budget (from $300,000.00 
to little over $1.6 million) to fully comply with provisions stipulated 
for a PDMP. Frankly, there is no funding from the counties or the 
states to perform these activities. North Carolina is not alone in 
experiencing financial difficulties, and many programs in other states 
would be forced to shut down or reduce their control measures to comply 
with the draft PGP.
    Indeed, the administrative costs alone may be beyond the 
capabilities of many mosquito control programs. Once a program has 
developed acceptable NOI's, PDMP's and Annual reports and have them on 
file, the maintenance costs will be substantial due to the inevitable 
changes in program elements required from complying with the PGP In 
addition, there are PDMP requirements that appear reasonable at first 
glance, but are simply impractical or impossible to perform. For 
example, the draft PGP requires the permit holder to ``Use the lowest 
effective amount of pesticide product per application''. While this 
seems simple enough, upon further investigation it is clear that making 
such a determination is fraught with problems. First, current Federal 
law under FIFRA prohibits using any pesticide that exceeds the 
authorized labeled amount. Second, how would ``use the lowest effective 
amount'' be determined under field conditions? We know from years of 
experience that adult mosquito control can have field failures at the 
even the highest labeled rate due to a myriad of extenuating factors. 
Additionally, this requirement tacitly assumes that districts would 
knowingly use a higher amount of product than necessary to effect 
control. These products are extremely expensive and AMCA is not aware 
of any district possessing the excess funds needed to subsidize 
application rates at the highest level approved by the label unless 
they are required to provide adequate control. Third, this stipulation 
appears eminently well-suited for litigation, as districts can be 
challenged to prove whether or not they have used the ``least amount of 
effective product''.
    The requirement to illustrate a ``Pest Management Area 
Determination'' and develop a ``pest management strategy'' for each 
pest management area is problematic. Mosquito control districts may 
have over 1,000 different sites within their jurisdictions that are 
known to produce mosquitoes, and each site could have distinct 
features. Are permittees thus required to evaluate every site? How do 
we access environmental conditions within an application area 
sufficiently enough to comply with the permit? A representative site is 
generally used to assess conditions when we treat several thousand 
areas in an evening for adult mosquitoes, but we know from experience 
that meteorological conditions may vary considerably over such large 
areas. How much variance would be allowed before litigation is 
initiated by anti-pesticide opportunists is a very real concern for all 
control agencies.
    The great monitoring unknown under the PGP is the degree of ambient 
water quality sampling. Monitoring for larvicides such as Bacillus 
thuringensis isrealensis and other biocontrols will be difficult since 
these are natural soil organisms and separating application products 
from background ``noise'' will be exceedingly problematic. Costs will 
vary widely for monitoring programs of other products depending on the 
requirements of a permit, but they can be expected to be substantial. 
For example, the NPDES permit currently being proposed in California 
requires both ambient water quality monitoring and toxicity testing for 
adult mosquito products used to control adult mosquitoes. The need for 
this permit was generated as a direct result of the 6th Circuit 
decision. The cost of performing this activity statewide is estimated 
to be $1 million annually. Only $10 million of adult mosquito control 
pesticides are used by California agencies on an annual basis, meaning 
10% of local tax resources will be used in an attempt to comply with 
the ambient monitoring conditions of the permit, and this is just for 
the adult mosquito control products. It is fortunate that the 
California State Water Control Board is allowing districts to form 
coalitions to perform the monitoring. Without this option each control 
district would be required to perform the same monitoring program 
currently being proposed by the coalition, meaning each district could 
face the million dollar monitoring tag on their own. This alone would 
exceed many districts total operational revenues. To further complicate 
this matter, the proposed monitoring program still has to get approval 
from California regional boards and USEPA Region 9, which may place 
further monitoring requirements as a condition of the permit. We 
believe that if Congress reaffirms the inapplicability of the CWA to 
pesticide applications that the state would likewise decline to assert 
a need for NPDES permits.

Conclusion
    Congress should clearly articulate and confirm its original intent 
with respect to the CWA and confirm that mosquito control activities 
conducted in substantial accordance with FIFRA are exempt from CWA 
NPDES requirements. The NPDES requirement in these circumstances 
provides no meaningful environmental benefit, but rather represents a 
significant obstacle to protecting public health and welfare. In the 
current economic situation, Congress should examine instances where 
needless burdens are placed on our nation's citizens, as well as state 
and municipal governments. This is one such instance. Somewhat 
perversely, without Congressional intervention, the current situation 
will result in providing less protection to our citizens. It makes more 
sense to restore the status quo that existed for more than 30 years 
prior to the decision of the 6th Circuit and recognize that the 
beneficial application of pesticides does not represent an activity 
that should be regulated under the CWA. Instead, comprehensive 
effective regulation of pesticide products, including impacts on water 
and non-target aquatic organisms, can and does occur under FIFRA. If 
Congress adopts such a position, water quality will continue to be 
maintained at a high level and a grave affront to environmental justice 
will have been avoided.
            Respectfully Submitted,

Dominick V. Ninivaggi.

    Mr. Gibbs. Thank you, Mr. Ninivaggi. Mr. Brown, do you have 
any comments or--okay. Mr. Semanko? Welcome.

           STATEMENT OF NORMAN M. SEMANKO, EXECUTIVE
 DIRECTOR AND GENERAL COUNSEL, IDAHO WATER USERS ASSOCIATION, 
  BOISE, ID; ON BEHALF OF NATIONAL WATER RESOURCES ASSOCIATION

    Mr. Semanko. Thank you, Chairman Gibbs, Ranking Members 
Bishop and Baca, my name is Norm Semanko and I am here on 
behalf of the Idaho Water Users Association as well as the 
National Water Resources Association. We do appreciate the 
opportunity to provide comments on this important topic and the 
need for legislation to address EPA's new regulations. You have 
already heard about the court decision. You have heard about 
the impacts. You have heard about the pesticide general permit. 
Let me tell you about our members. Western agricultural water 
users regularly apply aquatic herbicides.
    In accordance with FIFRA, we have followed FIFRA and the 
labels ever since the law was enacted. We do this to keep water 
delivery systems clear and free from aquatic weeds. The use of 
aquatic herbicides provides for the efficient delivery of 
water, avoids flooding, promotes water conservation, and helps 
avoid water quality problems associated with other methods of 
aquatic weed control.
    The organizations I represent include members responsible 
for irrigating millions of acres of farmland as well as 
residential subdivisions, parks, schools, yards, and other 
irrigated lands throughout the West. All of these working 
Americans and the general public stand to be directly impacted 
by the regulations proposed by EPA in the draft pesticide 
general permit. And let me make this point: at some point and 
now is probably that time, environmental gamesmanship and 
opportunistic litigation must yield to the realities of public 
health and safety and the need to feed and clothe our citizens. 
This is beyond the point where it is fun to talk about--it is 
beyond the focus of trivial discussions. It is now time for us 
to see something is done about this situation.
    As a result of the decision, the discharge of pesticides 
from point source to waters of the United States will require 
permit coverage by April 9, 2011. The permit has not been 
issued by EPA yet. Our folks are not ready for the regulations. 
We take very seriously our obligations under FIFRA and any 
other obligations that would be required under Federal law. But 
we don't know the rules of the game at this point. We don't 
have the ability to inform our folks. We have regular pesticide 
applicator workshops in Idaho scheduled for the middle of 
March. We have no idea what we are going to tell our folks. 
EPA, Region 10 has no idea what they are going to tell our 
folks because there is no permit done yet. There is no 
regulation that has been finalized.
    Canals, ditches, and other delivery and drainage facilities 
are not uniformly waters of the United States. Therefore, the 
application of aquatic herbicides to these facilities does not 
automatically require an NPDES permit. Unfortunately, EPA, 
through the regulations is using the pesticide general permit 
as a vehicle to summarily and inappropriately make 
jurisdictional determinations with regard to these so-called, 
``Waters of the United States.''
    The current draft of the pesticide general permit creates 
numerous overlapping opportunities for paper violations to be 
tacked onto a violation associated with water quality criteria 
exceedance or the observation of an adverse effect on a water 
body use. Such additional violations include the requirement 
for very timely mitigation, plus very timely reporting, plus 
updating of the pesticide discharge management plan, plus 
update of other records, and may I add in Idaho, which is a 
non-delegated state, the additional conditions tacked on by our 
State DQ through the 401 certification provisions. Each of 
these could be separate violations according to EPA. That is 
where the environmental gamesmanship--that is where the 
litigation opportunities come in--nothing to improve the 
environment, just to suspend the use and discourage the use of 
these beneficial products.
    I have personally witnessed, unfortunately, EPA's failure 
to provide meaningful public input on this matter. This thing 
seems to have been cooked from the beginning. EPA refused to 
ask the 6th Circuit en banc. They refused to ask the Supreme 
Court to review this. Relying upon EPA's Federal Register 
notice, our members of the Idaho Water Users Association came 
to the public hearing in Boise to provide oral comments.
    While we appreciated the opportunity to attend and interact 
with EPA staff, we were disappointed that the hearing was not 
conducted according to the notice. The notice clearly said in 
the Federal Register, ``EPA encourages interested and effected 
stakeholders to attend one of the scheduled public meetings and 
provide oral or written comments. Oral or written comments 
received at the public meetings will be entered into the docket 
for this permit.'' Unfortunately, this was not at all the case. 
IWUA encouraged its members to attend. However, participants 
were told by EPA staff at the public meeting the comments would 
not be accepted but instead would need to be submitted in 
writing afterward. Oral comments would not be accepted at all. 
While EPA allowed a limited number of questions to be asked, 
there was no opportunity to comment and the comments were not 
entered into the docket.
    Some significant questions remain with regard to this 
permit as I have already mentioned. We are hopeful that a good 
faith effort will resolve this matter, but at this point we are 
at the point where we need legislative intervention. Simply, 
without legislation our members will not know what standards to 
apply. They frankly will not know whether they can use aquatic 
herbicides. Flooding, non-delivery of water, lack of the kinds 
of water conservation we have had in the past are all at major 
risk and there really is no other alternative at this point 
than legislation to fix this problem. Thank you, Madam Chair.
    [The prepared statement of Mr. Semanko follows:]

    Prepared Statement of Norman M. Semanko, Executive Director and
General Counsel, Idaho Water Users Association, Boise, ID; on Behalf of 
                  National Water Resources Association

    Chairmen Gibbs and Schmidt, Ranking Members Bishop and Baca, my 
name is Norm Semanko and I am here on behalf of the Idaho Water Users 
Association (IWUA) and the National Water Resources Association (NWRA). 
I am the Executive Director and General Counsel of IWUA, Past President 
of NWRA, and a long-standing member of the Advisory Committee for the 
Alliance. We appreciate the opportunity to provide comments on the 
important topic of the Environmental Protection Agency's (EPA's) new 
regulations, potential missions and related legislation impacting rural 
job creation and ways of life.
    IWUA is a statewide, nonprofit association dedicated to the wise 
and efficient use of water resources. IWUA has more than 300 members, 
including irrigation districts, canal companies, water districts, 
municipalities, hydropower companies, aquaculture interests, 
professional firms and individuals. Our members deliver water to more 
than 2.5 million acres of irrigated farm land in Idaho.
    NWRA is a federation of state water associations and represents the 
collective interests of agricultural and municipal water providers 
serving the seventeen Western Reclamation states. NWRA has an active 
Water Quality Task Force and has long been involved in matters 
regarding the Clean Water Act in Congress, before the Administration, 
and in the courts. NWRA has also provided testimony and briefings for 
Congressional Committees, Members and staff on matters relating to the 
Clean Water Act and other environmental laws and regulations.
    Western water users are becoming increasingly concerned about the 
number of environmental regulations and policies that are currently 
being rewritten or reconsidered by the Obama Administration. In 
particular, recent rulemaking efforts at EPA and the White House 
Council on Environmental Quality carry the risk of real potential harm 
for Western irrigators and the rural communities that they serve.
    On June 2, 2010 EPA released its draft National Pollutant Discharge 
Elimination System (NPDES) permit for point source discharges from the 
application of pesticides to waters of the United States. This permit 
is also known as the Pesticides General Permit (PGP). The PGP was 
developed in response to a decision by the Sixth Circuit Court of 
Appeals (National Cotton Council, et at. v. EPA). The court vacated 
EPA's 2006 rule that said NPDES permits were not required for 
applications of pesticides to U.S. waters. As a result of the Court's 
decision. discharges to waters of the U.S. from the application of 
pesticides will require NPDES permits when the court's mandate takes 
effect next April. EPA intends to issue a final general permit by 
December 2010. Once finalized, the PGP will be implemented in six 
states, Indian Country lands and Federal facilities where EPA is the 
NPDES permitting authority, and will be the benchmark for permit 
issuance in the 44 delegated states.
    Western agricultural water users regularly apply aquatic 
herbicides, in accordance with FIFRA approved methodologies, to keep 
their water delivery systems clear and free from aquatic weeds.
    The use of aquatic herbicides provides for the efficient delivery 
of water, avoids flooding, promotes water conservation and helps avoid 
water quality problems associated with other methods of aquatic weed 
control. The organizations I represent include members responsible for 
irrigating millions of acres of farmland, as well as residential 
subdivisions, parks, schools, yards and other irrigated lands 
throughout the West. All of these working Americans and the general 
public stand to be directly impacted by regulations proposed by EPA in 
the draft PGP, as outlined further in this section.

Concern: Definition or ``Waters of the United States''
    One key concern with this draft general permit is that the 
definition of ``Waters of the United States'' used in the PGP is the 
one that existed in Federal Regulations prior to the Supreme Court 
Rapanos decision. The decision was made by the Bush Administration not 
to issue a new rule, but instead to issue guidance in interpreting 
Clean Water Act jurisdiction under Rapanos. We have compared the 
December 2, 2008 guidance memo issued by the U.S. Army Corps of 
Engineers and EPA that takes into account the Rapanos decision to the 
current regulations and discovered discrepancies.
    As a result of the National Cotton Council (NCC) decision, the 
discharge of a pesticide from a ``point source'' to ``waters of the 
United States'' will require permit coverage by April 9, 2011, when the 
Sixth Circuit's ruling goes into effect. ``Point Source'' and ``Waters 
of the United States'' are legal terms of art and a frequent topic of 
litigation, so that the full scope of permit requirements for 
particular pesticide uses remains unclear after the NCC decision. 
Activists and some courts take an extremely broad view of the scope of 
``Waters of the United States'' encompassing many features that farmers 
generally would not recognize as ``waters''. For this reason, potential 
enforcement targets will include those who apply pesticide to farmed 
wetlands or near intermittent streams, grass waterways, ditches, or 
other conveyances that flow to navigable waters.

Concern: The PGP Does Not Clearly Exempt Aquatic Weed and Algae Control 
        Activities From Expensive and Duplicative Federal Clean Water 
        Act Regulations
    The application of aquatic herbicides in canals, ditches, drains 
and other irrigation delivery and drainage facilities is statutorily 
exempt from the definition of ``point source'' under the Clean Water 
Act and therefore does not require an NPDES permit. The PGP does not 
clearly state that NPDES coverage is not required for these activities. 
EPA appears to be employing the PGP as a vehicle to eliminate or dilute 
the existing statutory point source exemptions.
    Canals, ditches, drains and other irrigation delivery and drainage 
facilities are not uniformly ``Waters of the U.S.''. Therefore, the 
application of aquatic herbicides to these facilities does not 
automatically require an NPDES permit. Once again, EPA is using the PGP 
as a vehicle to summarily and inappropriately make these jurisdictional 
determinations.

Concern: Multiple Opportunities for Stacked Clean Water Act Violations 
        and Citizen Suits
    The current draft creates numerous, overlapping opportunities for 
paper violations to be tacked onto a violation associated with a water 
quality criteria exceedance or the observance of an adverse effect on a 
water body use. Such additional violations include the requirement for 
very timely mitigation plus very timely reporting plus updating of the 
pesticide discharge management plan plus update of other records. Each 
of these could be separate violations according to EPA. We have 
suggested that EPA should eliminate such overlapping or stacked 
potential violations.

Concern: Implications of Endangered Species Act Requirements Resulting 
        From Consultation
    The current draft has a placeholder for the potential severe NPDES 
permit restrictions that the ongoing consultation with the U.S. Fish 
and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) 
could produce. EPA's economic analysis does not take into account any 
such ESA restrictions. However, we know from the extremely stringent 
requirements for buffers around all Pacific Northwest waters that both 
Services' requirements and the economic consequences thereof can be 
severe. If the Services add significant restrictions to the permit 
prior to its finalization, EPA should conduct a new economic analysis 
and then re-propose the permit for public comment.

Concern: Draft PGP Requirements Are Unrealistic, Impractical and 
        Burdensome for Local Governments and Small, Nonprofit 
        Organizations To Implement
    The measures set forth in the Draft PGP to ``identify the 
problem'', develop ``pesticide discharge management plans'' and provide 
new levels of record keeping and annual reporting are beyond the 
capacity of small government irrigation districts, and small nonprofit 
canal company organizations. Irrigation districts and canal companies 
are responsible for irrigation delivery systems that often cover 
hundreds or thousands of square miles. These small government and small 
nonprofit organizations do not have the staff or the budget to identify 
all areas with aquatic weed or algae problems, identify all target weed 
species, identify all possible factors contributing to the problem, 
establish past or present densities, or any of the other documentation 
requirements in the Draft PGP. Several of the measures set forth in the 
draft PGP are overly burdensome and, in many cases, impractical--if not 
impossible--to implement.

Concern: EPA Did Not Properly Solicit Public Comment on the PGP
    I have personally witnessed EPA's failure to provide meaningful 
public input on this matter. Relying upon EPA's Federal Register 
notice, my organization--the Idaho Water Users Association--encouraged 
our members to attend the public meeting in Boise and provide oral 
comments. While we appreciated the opportunity to attend and interact 
with EPA staff, we were disappointed that the hearing was not conducted 
according to the notice that was published in the Federal Register. The 
June 4, 2010 Federal Register notice clearly stated: ``EPA encourages 
interested and affected stakeholders to attend one of the scheduled 
public meetings and provide oral or written comments . . . Oral or 
written comments received at the public meetings will be entered into 
the Docket for this permit'' (emphasis added). Unfortunately this was 
not at all the case.
    In reliance upon EPA's Federal Register notice, IWUA encouraged its 
members to attend the public meeting in Boise and provide oral 
comments. However, participants were told by EPA staff at the public 
meeting that comments would not be accepted, but instead would need to 
be submitted in writing afterwards; oral comments would be at all. 
While EPA allowed a limited number of questions to be asked, there was 
no opportunity to comment and comments were not entered into the 
Docket. This prevented meaningful participation by those interested and 
potentially affected stakeholders who relied upon the notice in the 
Federal Register and attended with the intent to provide oral comments. 
Many participants left the public meeting without being provided an 
opportunity to ask questions. Given the number of people that attended 
and the lengthy up-front presentations and explanations provided by EPA 
staff, there simply was not enough time. All in all, it was not a 
meaningful opportunity for the public to be heard. It certainly was not 
conducted in accordance with the notice published in the Federal 
Register.

Concern: There Are Legal Risks to Operators Associated With the 
        Likelihood of EPA and States Meeting the April 9, 2011 Deadline
    Some significant questions remain surrounding the April 9, 2011 
deadline. What is EPA's and states' contingency plan if the permits 
aren't operational? How are operators (applicators and decision-making 
organizations) expected to continue their work if their protections 
under the 2006 EPA rule disappear on April 9, 2011? How are these 
organizations expected to plan between now and then? EPA and the Obama 
Administration should approach the 6th Circuit Court of Appeals now and 
get its approval for an additional stay beyond the current April 9, 
2011 deadline.
    We are hopeful that a concerted good-faith effort working with EPA 
will result in a streamlined pesticide permitting regulatory process 
that will be efficient, fair and effective to American farmers and 
ranchers, as well as consistent with existing statutory exemptions in 
the Clean Water Act. However, because of our experience with EPA 
earlier in the public comment process, and the agency's failure to 
defend the 2006 rule or pursue other reasonable alternatives, we have 
concerns about how serious our comments will be received. As a result, 
we believe it is advisable for Congress to provide additional 
oversight--and legislative relief--to address this very serious matter.
    Specifically, enactment of legislation such as H.R. 6087, 
introduced in the 111th Congress by the Agriculture full Committee 
Chairman Frank Lucas, would clarify that the additional regulatory 
requirements of the NPDES permitting process are not necessary and that 
continued use of pesticide products pursuant to FIFRA is sufficient.


    Mrs. Schmidt. Thank you. And before I make my closing 
statement I want to recognize Mr. Bishop for 20 seconds on a 
personal privilege.
    Mr. Bishop. I just want to welcome Dominick Ninivaggi to 
Washington. He is a graduate of the college I worked at for 29 
years before I came here. You make us very proud. Thank you 
very much.
    Mr. Ninivaggi. Thank you.
    Mrs. Schmidt. Well said. Members have been called for votes 
on the Transportation Committee, so unfortunately we are not 
going to have time for Members to ask questions to our 
witnesses because most of this Committee is going to have to go 
downstairs. So I ask that Members submit any questions they 
have for the record and that the witnesses to submit to the 
Committee their written answers to these questions. I apologize 
for the inconvenience, but I don't have control of the 
calendar.
    The record of today's hearing will remain open for 10 
calendar days to receive additional material and supplementary 
written responses from the witnesses to any questions posed by 
a Member to this panel. I thank you all very much and have a 
great day. This hearing is adjourned.
    [Whereupon, at 4:18 p.m., the Subcommittees were 
adjourned.]
    [Material submitted for inclusion in the record follows:]

  Submitted Statement of Robert Gilliom, Hydrologist, U.S. Geological 
                                 Survey

    Thank you for the opportunity to provide you with an overview of 
our current understanding of the occurrence of pesticides in streams 
and groundwater across the United States. I am Robert Gilliom, a 
hydrologist with the U.S. Geological Survey (USGS). I direct pesticide 
studies for the National Water Quality Assessment Program (NAWQA). 
Several peer-reviewed, previously published reports were drawn upon for 
today's overview. These reports are listed at the end of my written 
testimony.
    Two USGS programs include a national focus on pesticides in water 
resources. These programs, NAWQA, and the Toxic Substances Hydrology 
Program, provide nonregulatory scientific information on the quality of 
our water resources and factors that influence it. This information 
used by a wide range of stakeholders, including Federal and State 
agencies, pesticide registrants, and interest groups. The NAWQA program 
provides a broad nationwide assessment of a wide range of pesticides. 
The Toxic Substances Hydrology Program complements the NAWQA program 
with a targeted research approach to evaluate new and emerging water-
quality issues, often involving the development of new analytical 
methods and their application in specific pesticide-use settings. The 
NAWQA program's national findings, summarized in a 2006 report ``The 
Quality of Our Nation's Waters--Pesticides in the Nation's Streams and 
Ground Water, 1992-2001'', provide a nationwide view of pesticide 
occurrence, potential significance to humans and aquatic ecosystems, 
and relations between pesticide use patterns and levels found in water. 
Recent USGS studies have further evaluated trends in pesticide 
concentrations in streams and rivers. Among the major findings are that 
pesticides are frequently present in streams and groundwater, are not 
common at concentrations known to affect humans, but occur in many 
streams at concentrations that may have effects on aquatic life or 
fish-eating wildlife.

USGS Approach to Pesticide Assessment
    USGS assessment of pesticides used a nationally consistent approach 
to study 51 of the Nation's major river basins and aquifer systems. 
Nationally, water samples for pesticide analysis were collected from 
186 stream sites, bed-sediment samples were collected from 1,052 stream 
sites, and fish samples were collected from 700 stream sites. 
Groundwater samples were collected from 5,047 wells. Most water samples 
were analyzed for 75 pesticides and 8 degradates [pesticide breakdown 
products], including 20 of the 25 most heavily used herbicides and 16 
of the 25 most heavily used insecticides. Although many of the most 
heavily used pesticides were included, most of the more than 400 
registered active ingredients were not analyzed.
    In addition to water analyses, 32 organochlorine pesticide 
compounds were analyzed in bed sediment and (or) fish tissue, including 
19 pesticides and 13 degradates or manufacturing by-products. Most of 
the organochlorine pesticides are no longer used in the United States, 
but organochlorine compounds still persist in the environment.

Pesticide Occurrence
    At least one pesticide was detected generally below levels of 
concern in water from all streams studied, and pesticide compounds were 
detected throughout most of the year in water from streams with 
agricultural (97 percent of samples), urban (97 percent), or mixed-
land-use watersheds (94 percent). In addition, organochlorine 
pesticides (such as DDT) and their degradates and by-products were 
found in fish and bed-sediment samples from most streams in 
agricultural, urban, and mixed-land-use watersheds. Most of the 
organochlorine pesticides have not been used in the United States since 
before the NAWQA studies began, but their continued presence suggests 
their persistence in the environment. As we will discuss later, 
detection alone does not necessarily imply adverse human health or 
environmental impacts.
    Pesticides were less common in groundwater than in streams. They 
occurred most frequently in shallow groundwater beneath agricultural 
and urban areas, where more than 50 percent of wells contained one or 
more pesticide compounds. About \1/3\ of the deeper wells sampled, 
which tap major aquifers used for water supply, contained one or more 
pesticides or degradates.
    The findings show that streams are most vulnerable to pesticide 
contamination. However, because groundwater contamination is difficult 
to reverse once it occurs, groundwater is also a potential concern in 
agricultural and urban areas where ground water is used for drinking 
water.

Potential for Effects on Human Health
    Assessment of potential effects on human health is based on 
comparing measured concentrations to available U.S. Environmental 
Protection Agency drinking water standards and fish consumption 
guidelines. Benchmarks are defined as estimates of the concentrations 
above which pesticides may have adverse effects on humans, aquatic 
life, or fish-eating wildlife.
    Most detections of pesticides were at low levels compared to human-
health benchmarks. No streams draining undeveloped watersheds and only 
one stream with a mixed-land-use watershed had concentrations greater 
than a human-health benchmark. Annual mean concentrations of one or 
more pesticides exceeded a human-health benchmark in 8 of 83 
agricultural streams and in 2 of 30 urban streams. Agricultural streams 
located in the Corn Belt (Illinois, Indiana, Iowa, Nebraska, Ohio, and 
parts of adjoining States) and the Mississippi River Valley accounted 
for most concentrations that exceeded benchmarks--all by atrazine, 
cyanazine (no longer in use by the end of the study), or dieldrin (no 
longer in use when the study began). The two urban streams where 
benchmarks were exceeded are in Texas (diazinon) and Hawaii (dieldrin).
    None of the stream sites sampled for the 2006 report were located 
at drinking-water intakes. For perspective, 1,679 of the nation's 
public water-supply intakes on streams were evaluated in the context of 
NAWQA land-use classifications and pesticide findings. Eighty-seven 
percent of these water-supply intakes are on streams draining 
undeveloped and mixed-land-use watersheds and are therefore unlikely to 
withdraw water with concentrations that are greater than a human-health 
benchmark. The likelihood of pesticide concentrations exceeding a 
human-health benchmark is greatest for those streams draining 
agricultural or urban watersheds, which account for about 12 and 1 
percent, respectively, of public water-supply intakes on streams.
    As an example of extrapolating these findings, the USGS model for 
atrazine in streams can be used to predict the likelihood that the 
annual average concentration of atrazine in untreated stream water 
exceeds the USEPA drinking-water standard of 3 micrograms per liter in 
any stream in the nation. Atrazine concentrations were predicted to be 
highest in the Corn Belt and parts of the southern Mississippi River 
Valley, where use is high and natural features favor the transport of 
pesticides by runoff to streams. About 7 percent of the nation's stream 
miles are predicted to have a 5 percent or greater chance of exceeding 
the drinking-water standard. Some of these streams may not be suitable 
as sources of drinking water without the use of strategies to lower 
concentrations. These types of analyses can be used to identify 
locations that have the greatest likelihood of water-quality problems 
and that are the highest priority for additional monitoring.
    Human-health benchmarks were seldom exceeded in groundwater. One or 
more pesticides exceeded a benchmark in about 1 percent of the 2,356 
domestic and 364 public-supply wells that were sampled. The greatest 
proportion of wells with a pesticide concentration greater than a 
benchmark was for those tapping shallow groundwater beneath urban areas 
(4.8 percent). The urban wells with benchmark exceedances included 1 
public-supply, 3 domestic, and 37 observation wells, and most 
concentrations greater than a benchmark were accounted for by dieldrin, 
which is no longer used.

Potential for Effects on Aquatic Life and Wildlife
    Concentrations of pesticides were greater than water-quality 
benchmarks for aquatic life and (or) fish-eating wildlife in more than 
half of the streams with substantial agricultural and urban areas in 
their watersheds. Of the 178 streams sampled nationwide that have 
watersheds dominated by agricultural, urban, or mixed land uses, 56 
percent had one or more pesticides in water samples that exceeded at 
least one aquatic-life benchmark. Urban streams had concentrations that 
exceeded one or more benchmarks at 83 percent of sites--mostly by the 
insecticides diazinon, chlorpyrifos, and malathion--although 
frequencies of exceedance declined during the study period. 
Concentrations exceeded benchmarks in 95 percent of urban streams 
sampled during 1993-1997 and in 64 percent of streams during 1998-2000. 
Agricultural streams had concentrations that exceeded one or more 
benchmarks at 57 percent of sites--most frequently by chlorpyrifos, 
azinphos-methyl, atrazine, p,p-DDE, and alachlor. As the use of 
alachlor declined through the study period, benchmark exceedances for 
this compound also declined, with no exceedances during the last 3 
years of study.
    Aquatic-life benchmarks for organochlorine pesticide compounds in 
bed sediment also were frequently exceeded in urban areas (70 percent 
of urban stream sites). Most compounds that exceeded aquatic-life 
benchmarks for sediment were derived from organochlorine pesticides 
that have not been used since before the study began, such as DDT, 
chlordane, aldrin, and dieldrin. In agricultural streams, aquatic-life 
benchmarks were exceeded at 31 percent of sites--most often by DDT 
compounds and dieldrin. Comparisons of concentrations of organochlorine 
compounds in whole fish with wildlife benchmarks indicate a wide range 
of potential for effects on fish-eating wildlife. Similar to bed 
sediment, benchmarks for fish were exceeded most often by compounds 
related to DDT, dieldrin, and chlordane in urban streams, and by DDT 
compounds, dieldrin, and toxaphene in agricultural streams in areas 
where historical use on crops was most intense.
    Assessment and management of the potential effects of pesticides on 
aquatic life and wildlife are complicated by the combined presence in 
streams of (1) currently used pesticides and degradates, and (2) 
organochlorine pesticide compounds derived from pesticides that were 
largely banned prior to 1990. The widespread potential for adverse 
effects shown by the screening-level assessment--combined with the 
uncertainty due to the preliminary nature of the assessment and the 
complexity of pesticide exposure--indicate a continuing need to study 
the effects of pesticides on aquatic life and wildlife under the 
conditions of pesticide exposure that occur in the environment.

Frequently Detected Pesticides and Relations to Land Use and Pesticide 
        Use
    Pesticides detected most frequently in streams and groundwater are 
among those used most heavily during the study or in the past. Their 
occurrence follows patterns in land use and use intensity, with 
additional influence--especially for groundwater--by natural factors 
and management practices. The most frequently detected herbicides used 
mainly for agriculture during the assessment period--atrazine, 
metolachlor, cyanazine, alachlor, and acetochlor--generally were 
detected most often and at the highest concentrations in water samples 
from streams in agricultural areas with their greatest use, 
particularly in the Corn Belt. Five herbicides commonly used in urban 
areas--simazine, prometon, tebuthiuron, 2,4-D, and diuron--and three 
commonly used insecticides--diazinon, chlorpyrifos, and carbaryl--were 
most frequently detected in urban streams throughout the Nation, often 
at higher concentrations than in agricultural streams. Total DDT was 
measured at some of the highest concentrations in bed sediment and fish 
in parts of the Southeast and in parts of California, Oregon, and 
Washington, where DDT was historically used on cotton, tobacco, 
orchards or other crops.
    Land use and pesticide use are not the only factors influencing the 
occurrence of pesticides. Natural features and land-management 
practices also affect their distribution, particularly in groundwater. 
Groundwater is most vulnerable to contamination in areas with highly 
permeable soil and aquifer materials and where drainage practices do 
not divert recharge to streams and other surface water.
    Pesticide concentrations in stream water also vary by season, with 
lengthy periods of low concentrations punctuated by seasonal pulses of 
much higher concentrations. For example, in streams that drain farmland 
throughout most of the Corn Belt, concentrations of herbicides were 
generally highest during spring runoff following pesticide 
applications. Similarly, concentrations of diazinon were highest during 
the winter in parts of the San Joaquin Valley, California, when 
applications to dormant almond orchards were followed by rainfall. 
Seasonal patterns in pesticide concentrations are important to 
consider, both in managing the quality of drinking water withdrawn from 
streams in agricultural and urban settings, and in evaluating the 
potential for adverse effects on aquatic life.

Mixtures and Degradates
    Pesticides most commonly occur as mixtures of multiple compounds, 
rather than individually, including degradates resulting from the 
transformation of pesticides in the environment. Streams in 
agricultural and urban areas almost always contained complex mixtures 
of pesticides and degradates. More than 90 percent of the time, water 
samples from streams with agricultural, urban, or mixed-land-use 
watersheds contained 2 or more pesticides or degradates, and about 20 
percent of the time they had 10 or more. Mixtures were less common in 
groundwater. Nevertheless, about \1/2\ of the shallow wells in 
agricultural areas and about \1/3\ of shallow wells in urban areas 
contained 2 or more pesticides and degradates--less than 1 percent had 
10 or more. The herbicides atrazine (and its degradate, 
deethylatrazine), simazine, metolachlor, and prometon were common in 
mixtures found in streams and groundwater in agricultural areas. The 
insecticides diazinon, chlorpyrifos, carbaryl, and malathion were 
common in mixtures found in urban streams.
    Degradates are often as common in streams and groundwater as their 
parent pesticides. For example, atrazine, the most heavily used 
herbicide in the nation during the study period, was found together 
with one of its several degradates, deethylatrazine, in about 75 
percent of stream samples and about 40 percent of groundwater samples 
collected in agricultural areas across the nation. Degradates are 
particularly important in groundwater, which moves relatively slowly 
through soils and aquifers, providing the extended time and conditions 
favorable for transformation of pesticides. Most degradates are less 
toxic than their parent pesticide, but some have similar or greater 
toxicities.
    The widespread and common occurrence of pesticide mixtures, 
particularly in streams, means that the total combined toxicity of 
pesticides in water and other media often may be greater than that of 
any single pesticide compound that is present. This adds uncertainty to 
conclusions about potential effects of pesticides based on individual 
benchmark comparisons, and continued research is needed by human-health 
specialists and toxicologists on the potential toxicity of pesticide 
mixtures, including degradates, to humans, aquatic life, and wildlife. 
USGS data on the occurrence and characteristics of mixtures and 
degradates is helping to target and prioritize toxicity assessments.

Trends in Pesticides
    Following the national assessment findings discussed above, the 
USGS has been assessing whether pesticide levels in the nation's 
streams and groundwater are increasing or decreasing over time. USGS 
trend analyses indicate that several major pesticides mostly declined 
or stayed the same in ``Corn Belt'' rivers and streams from 1996 to 
2006. The declines in pesticide concentrations closely followed 
declines in their annual applications, indicating that reducing 
pesticide use is an effective and reliable strategy for reducing 
pesticide contamination in streams.
    Declines in concentrations of the agricultural herbicides 
cyanazine, alachlor and metolachlor reflect USEPA regulatory actions as 
well as the influence of new pesticide products. In addition, declines 
from 2000 to 2006 in concentrations of the insecticide diazinon 
correspond to the USEPA's national phase-out of nonagricultural uses. 
Studies in progress on urban streams confirm that the decline in 
diazinon is a strong national pattern. These USGS findings on pesticide 
trends have been used by EPA to track the effectiveness of changes in 
pesticide regulations and use.
    The USGS studied 11 herbicides and insecticides frequently detected 
in the Corn Belt region, which generally includes Illinois, Indiana, 
Iowa, Nebraska and Ohio, as well as parts of adjoining states. This 
area has among the highest pesticide use in the nation--mostly 
herbicides used for weed control in corn and soybeans. As a result, 
these pesticides are widespread in the region's streams and rivers, 
largely resulting from runoff from cropland and urban areas. Elevated 
concentrations can affect aquatic organisms in streams as well as the 
quality of drinking water in some high-use areas where surface water is 
used for municipal supply. Four of the 11 pesticides evaluated for 
trends were among those most often found in previous USGS studies to 
occur at levels of potential concern for aquatic life. Atrazine, the 
most frequently detected, is also regulated in drinking water.
    Pesticide use is constantly changing in response to such factors as 
regulations, market forces, and advances in science. For example, 
acetochlor was registered by the USEPA in 1994 with a goal of reducing 
use of alachlor and other major corn herbicides--acetochlor use rapidly 
increased to a constant level by about 1996, and alachlor use declined. 
Cyanazine use also decreased rapidly from 1992 to 2000, as it was 
phased out because of environmental concerns. Metolachlor use did not 
markedly decrease until about 1998, when S-metolachlor, a more 
effective version that requires lower application rates, was 
introduced. Each of these declines in use was accompanied by similar 
declines in concentrations. Overall, use is the most dominant factor 
driving changes in concentrations.
    Only one pesticide--simazine, which is used for both agricultural 
and urban weed control--increased from 1996 to 2006. Concentrations of 
simazine in some streams increased more sharply than its trend in 
agricultural use, suggesting that non-agricultural uses of this 
herbicide, such as for controlling weeds in residential areas and along 
roadsides, increased during the study period.
    Glyphosate, an herbicide which has had rapidly increasing use on 
new genetically modified varieties of soybeans and corn, and which now 
is the most heavily used herbicide in the nation, was not measured 
until late in the study and thus had insufficient data for analysis of 
trends. USGS studies from 2001 through 2006 to investigate and document 
the occurrence, fate, and transport of glyphosate and its degradation 
product, aminomethylphosphonic acid (AMPA), included analyses of 2,135 
groundwater and surface-water samples, 14 rainfall samples, and 193 
soil samples. Results from USGS studies for 608 surface water samples 
show that glyphosate was detected in 32 percent, compared to AMPA 
detected in 51 percent. Results for 485 groundwater samples showed much 
lower occurrence, with 6 percent and 10 percent, respectively for 
glyphosate and AMPA.
    This statement provides a brief overview of USGS research on 
pesticides in streams and groundwater. We welcome the opportunity to 
provide any further information or assistance.

Sources
    All material provided is from the following peer-reviewed 
scientific publications:
    Gilliom and others, 2006, The Quality of Our Nation's Waters--
Pesticides in the Nation's Streams and Ground Water, 1992-2001: U.S. 
Geological Survey Circular 1291, 172 p.
    Gilliom, R.J., and Hamilton, P.A., 2006, Pesticides in the nation's 
streams and ground water, 1992-2001--a summary: U.S. Geological Survey 
Fact Sheet 2006-3028, Available Online.
    Vecchia, A.V., R.J. Gilliom, D.J. Sullivan, D.L. Lorenz, and J.D. 
Martin, 2009, Trends in concentrations and use of agricultural 
herbicides for Corn Belt rivers, 1996-2006: Environmental Science and 
Technology v. 43, pp. 9096-9102, Available Online.
    Belden, J.B., R.J. Gilliom, and M.J. Lydy, 2007, How well can we 
predict the toxicity of pesticide mixtures to aquatic life? Integrated 
Environmental Assessment and Management, v. 3, no. 3 ., pp. 364-372. 
Available Online.
    Scribner, E.A., W.A. Battaglin, R.J. Gilliom, and M.T. Meyer, 2007, 
Concentrations of glyphosate, its degradation product, 
aminomethylphosphonicacid, and glufosinate in ground- and surface-
water, rainfall, and soil samples collected in the United States, 2001-
06: U.S. Geological Survey Scientific Investigations Report 2007-5122, 
111 p.
                                 ______
                                 
   Submitted Statement of Aaron Hobbs, President, RISE (Responsible 
             Industry for a Sound Environment)'

    On behalf of RISE (Responsible Industry for a Sound 
Environment)' and our member companies, I would like to 
thank Chairwoman Schmidt, Chairman Gibbs, Ranking Member Baca, Ranking 
Member Bishop and all of the Members of the Subcommittees for your 
leadership in holding this hearing. I would also like to thank House 
Agriculture Committee Chairman Lucas and Ranking Member Peterson, as 
well as House Transportation and Infrastructure Committee Chairman Mica 
and Ranking Member Rahall. I greatly appreciate the opportunity to 
share RISE's concerns about the court-ordered National Pollutant 
Discharge Elimination System (NPDES) permits that will be required by 
United States EPA for pesticide applications ``to, over, or near'' 
water as of April 9, 2011.
    Our industry provides the EPA-registered products applicators use 
to protect public health by controlling mosquitoes and potentially 
dangerous insects; protect and enhance our forests and forest 
production by controlling pests and allowing for continued safe 
recreation, commerce, and basic usability of our nation's water ways 
through control of invasive weeds, fish, algae and other such species. 
Thank you for your effort today to protect these essential public 
health, safety and natural resource product uses by supporting passage 
of legislation to clarify the primacy of the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) in regulating pesticide use.
    Congress never intended to regulate pesticide applications with 
Clean Water Act, NPDES permits. In fact, EPA had no concerns in this 
area, but must now comply with a court order in National Cotton Council 
v. EPA that requires the agency and the states to create and implement 
an NPDES permit program and accompanying enforcement for applications 
of pesticides ``to, over or near water'' by April 9, 2011. We ask that 
you reaffirm that NPDES permits should not be required for the 
application of EPA-approved pesticides. Requiring NPDES permits is 
duplicative of the long-standing FIFRA-based regulatory process and 
will cost small businesses, cities, counties, and states significant 
resources and jobs.

Protecting Public Health, Water and Natural Resources
    Your assistance today can help ensure protection against the many 
diseases carried by mosquitoes that sadly impact families every year. 
Without action, April showers will not only bring May flowers, but will 
also bring uncertainty, the potential for citizen actions suits, job 
losses, and the real potential for decreased protection from West Nile 
Virus, Dengue Fever, Equine Encephalitis and other mosquito-borne 
diseases.
    The Centers for Disease Control (CDC) reports that in 2010, 941 
people in the U.S. became ill from West Nile Virus. According to the 
CDC there were 62 cases and 7 fatalities that year. In only 5 short 
years, West Nile Virus spread to 45 states and the District of Columbia 
with 9,862 cases and 264 fatalities in 2003. Since that time the 
numbers have continued to grow, in 2010 there were 981 cases and 45 
fatalities. Other mosquito-borne diseases such as yellow fever, rift 
valley fever, malaria and dengue fever, have already reached the U.S. 
Not only are our citizens at risk, dogs and horses are also very 
susceptible to West Nile Virus, Eastern Equine Encephalitis, and 
heartworms, among other diseases.
    According to the American Mosquito Control Association, there are 
at least 734 named mosquito abatement districts and 1,105 mosquito 
control entities that will be subject to NPDES permit requirements. The 
association estimates that it will cost at least $3.7 million for these 
entities to research, revise and file the required Notices of Intent 
(NOIs) just for mosquito control. Every dollar diverted from mosquito 
treatments to comply with a new, costly and duplicative regulatory 
regime will reduce the level of protection we provide to our families, 
pets, and friends from these deadly diseases.
    In addition to mosquito control, NPDES permits will reduce and 
possibly eliminate protection from numerous invasive species in U.S. 
waters. Invasive species such as the Snakehead fish right here in the 
Potomac, the Asian Flying Carp threatening our Great Lakes, Zebra 
Mussels in our Great Lakes and the California Delta, and hydrilla and 
Eurasian water milfoil choking water ways from Maryland to Florida to 
Texas and beyond are currently controlled with the responsible use of 
pesticides. Invasive plants and animal species, such as the few 
mentioned, have a devastating impact on the environment, economy, 
recreation, and power generation in the U.S. The estimated damage from 
and the cost to control invasive plants and animal species in the U.S. 
exceeds $138 billion on an annual basis (Pimentel et al., 2005). These 
costs will sky rocket under the proposed permit scheme, jobs will be 
lost and environmental protection will be weakened.
    Eurasian zebra mussels alone are estimated to cost the U.S. $5 
billion in control and reparation costs. Not only have these small 
mollusks impacted the U.S. economy, they are severely impacting the 
native ecosystems of U.S. lakes and major river systems (http://
www.collegeonline.org/library/articles/zebra-mussels/). Hydrilla and 
Eurasian water milfoil spread quickly and wreak havoc on lakes, 
irrigation canals, and reservoirs. These weeds crowd out beneficial 
native vegetation, block irrigation and drainage canals, interfere with 
public water supplies and power generation and impede fishing and 
navigation. Dense mats of these invasive weeds also create stagnant 
water, a breeding ground for mosquitoes. Hydrilla also harbors the fast 
growing epiphytic cyanobacterial algae, which grows on top of the 
hydrilla. According to Susan B. Wilde, Ph.D., research professor at the 
University of South Carolina and member of the Weed Science Society of 
America, over a hundred bald eagle deaths can be attributed to a 
neurological disease associated with the algae. (http://www.wssa.net/
WSSA/PressRoom/WSSA_EaglesEatingAlgae.pdf). Snake heads and Asian 
Flying Carp have fewer to no natural predators and out compete native 
fish leading to devastation of native ecosystems.
    Finally, pesticides protect and allow for the efficient 
regeneration of forests. Healthy forest land also requires vegetation 
management to control non-native and invasive species and to reduce 
vegetative competition. In addition to healthy forests, pesticides are 
used to manage underbrush to prevent forest fires and the enormous 
damage they cause.

Costs and Job Losses
    As stated, the proposed permit requirements will greatly increase 
the costs of controlling pests that threaten our health and 
environment. Further, the permits hinder the ability of states and 
municipalities to maintain highways, railroad lines, and electricity 
rights-of-way in an efficient and cost effective manner. These cost 
increases will place a significant financial burden on these entities 
while decreasing the safety of our roads and rails and decreasing the 
reliability of our electricity.
    In addition to the increased control and permit compliance costs on 
states and localities, the proposed permit will impact numerous small 
businesses nationwide that provide treatment for these pests resulting 
in the loss of one full-time employee providing service to customers. 
Many applicator companies are struggling to survive as their municipal 
and community customers scale back on service, so reassigning one 
employee to comply with NPDES permit paperwork will effectively put 
many out of business or limit their ability to grow their business and 
hire new employees. For example, the majority of aquatic weed control 
treatments in the U.S. are performed by approximately 300 small 
businesses each with less than 15 employees. According to our analysis, 
the NPDES permit will require virtually every aquatic applicator 
company in the U.S. to submit a Notice of Intent (NOI) triggering 
compliance with burdensome paperwork requirements. Such requirements 
mean the loss of one full-time employee providing service in the field 
to handle the additional paperwork and ensure compliance. The 
reassignment of staff to meet the paperwork requirements is estimated 
to cost these small businesses approximately $50,000 annually.
    Further, many of these small businesses operate in multiple states 
and will need to comply with several different states' permit 
requirements. These companies are committed to complying with all new 
regulatory requirements. However, minor mistakes could be made as these 
companies struggle to understand the copious paperwork requirements 
associated with each state's permit, especially since no final permits 
have yet to be issued. A simple paperwork violation of the NPDES permit 
under the Clean Water Act can cost small businesses $11,000, for each 
and every mistake.

Confusion Among Applicators Is Increasing as the April 9 Deadline 
        Approaches
    Under the court order in National Cotton Council v. EPA, pesticide 
applications ``to, over or near'' water will be subject to NPDES 
permits as of April 9, 2011. While we recognize that EPA and the states 
have worked hard to develop these permits, we are deeply concerned that 
the court deadline is less than 2 months away. EPA has not yet issued a 
final permit for the six states under its regulatory jurisdiction. In 
fact the draft permit's required Endangered Species Act consultation 
between EPA, the U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service is not slated to be complete until later this month.
    About half of the states that are required to develop their own 
permits have not issued draft permits because they are seeking guidance 
from the final EPA permit. At least two states require legislative 
action before they can implement permits. Further, many states are 
struggling to develop management systems to process numerous NOIs under 
tight budgetary constraints. While EPA and the states have worked hard 
to meet the court-ordered deadline, there is not enough time to get 
permit processes in place or to educate local governments, land owners 
and pesticide applicators about the new requirements prior to the 
deadline. These entities are struggling to plan for this spring's pest 
control treatments in the absence of clear guidance from regulators. 
Without Congressional action, these entities could face enforcement 
action and be subject to citizen action lawsuits and EPA and state 
enforcement, including fines beginning on April 9.
    RISE encourages Congress to pass legislation that clarifies that 
NPDES permits should not be required for the application of FIFRA-
regulated pesticides. Failure to pass legislation prior to April 9 will 
have significant consequences for states, municipalities, land owners 
and pesticide applicators.

EPA's Pesticide Registration Process Accounts for Impacts to Water and 
        Aquatic Life
    Under FIFRA, our industry works collaboratively with U.S. EPA and 
the states to ensure products are rigorously regulated and available 
when consumers and professionals seek them. Every product sold in the 
U.S. must first be thoroughly evaluated by the EPA to ensure that it 
meets Federal safety standards to protect human health and the 
environment. EPA grants a ``registration'' or license that permits a 
pesticide's distribution, sale, and use only after the product meets 
the most current scientific and regulatory standards.
    In evaluating a pesticide registration application, EPA assesses a 
wide variety of potential human health, animal health and environmental 
effects associated with use of the product through the review of over 
one hundred extensive scientific studies, including the impact of the 
pesticide on ground water, surface water, drinking water and aquatic 
life. These studies, which must be conducted according to strict EPA 
protocols, include an assessment of how the chemical may change or 
behave in the environment, and its toxicity or unintended impact on 
people, plants and animals that are not the original target of the 
product. The tests also include an analysis of the potential effects of 
the pesticide on possible sensitive subpopulations such as infants and 
children, the elderly or pregnant women, and endangered species. The 
registration process also includes an assessment of an individual's 
aggregate exposure to all registered uses of the product.
    Additionally, EPA oversees product label development for each 
registered product. The label contains explicit directions for product 
use, including the amount, frequency or timing of applications and 
storage and disposal practices. The use of a product in a manner not 
specified on the label is a violation of the law and subject to 
prosecution. Furthermore, states have their own pesticide registration 
programs, adding an additional layer of oversight to product use that 
is specific to the use patterns of each jurisdiction. These standards 
are the highest and strongest scientific requirements in the World.
    Requiring NPDES permits for these products will add a great deal of 
paperwork and reporting requirements for pesticide applicators, but it 
will not provide any additional environmental protections that are not 
already in place under FIFRA and state regulation.

Conclusion
    Thank you very much for the opportunity to submit this testimony 
and for your leadership in holding this hearing. The proposed NPDES 
permits for pesticide applications are duplicative, extremely costly 
and could jeopardize the ability of states, municipalities and 
landowners to protect the public health and our natural resources. 
Further, such permits have never been contemplated by U.S. EPA or 
Congress for pesticide applications and are only now required by court 
order. RISE encourages Congress to pass legislation that clarifies the 
primacy of FIFRA in regulating pesticides. NPDES permits should not be 
required for the application of FIFRA-regulated pesticides.
                                 ______
                                 
 Submitted Statement of Rodney Snyder, Chair; and Beau Greenwood, Vice 
                   Chair, Pesticide Policy Coalition

    The Pesticide Policy Coalition (PPC) is pleased to provide this 
testimony in support of this joint hearing on pesticide NPDES general 
permits. The PPC is a coalition of food, agriculture, pest management, 
and related organizations that support transparent, fair, and science-
based regulation of pest management. PPC members include nationwide and 
regional farm, commodity, specialty crop, and silviculture 
organizations; cooperatives; food processors and marketers; pesticide 
manufacturers, formulators and distributors; pest- and vector-control 
operators; research organizations; and other interested parties. PPC 
serves as a forum for the review, discussion, development, and advocacy 
of pest management policies and issues important to its members.

EPA's Pesticide NPDES General Permit
    The Environmental Protection Agency's (EPA's) final pesticide NPDES 
general permit (PGP) development effort is a result of the January 2009 
decision of the 6th Circuit Court of Appeals in the case of National 
Cotton Council et al., v. EPA. 553 F. 3d 927 (6th Cir. 2009). To be 
finalized and fully implemented by April 9, 2011, the PGP will be 
enforced by EPA in several states and certain other areas, and its 
multitude of requirements is forming a template for permit development 
and enforcement by 44 other states. The PPC has previously provided 
public comments detailing its concerns with the draft PGP published in 
June 2010. Despite efforts by EPA to modify its PGP in light of public, 
state and Federal comments, the PPC continues to have very significant 
concerns that the permit unnecessarily duplicates other, more 
appropriate statutes, and will impose untenable costs and legal 
jeopardy on thousands of permittees and others. We believe this is not 
what Congress intended for pesticide regulation and water quality 
protection. Before we describe these concerns, let us provide a brief 
overview of the extensive regulatory regime that has been in place for 
decades.

Congress Chose FIFRA for Pesticide Regulation and Water Quality 
        Protection
    Four months after Congress enacted the Clean Water Act (CWA) it 
enacted the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
to control all aspects of pesticide registration, sales and use. In the 
decades since, EPA has never issued an NPDES permit for the application 
of a pesticide made intentionally to target a pest that is present in 
or over, including near, waters of the U.S. Instead, EPA has been 
regulating these and all other types of applications under FIFRA, as 
intended by Congress. Congressional intent to this effect was clearly 
spelled out in the House Committee Report for FIFRA in 1971:

          ``2. Statement of findings:

                  The Committee did not included in H.R. 10729 the 
                statement of legislative findings as originally 
                proposed in H.R. 4152. The Committee did not take this 
                action in derogation of the basic intent of H.R. 4152, 
                but did so to avoid cluttering the final statute with 
                language which the Committee feels is interpretive of 
                the other provisions of this legislation. It is 
                therefore the Committee's intent that:

                          ``The Congress hereby finds that pesticides 
                        are valuable to our Nation's agricultural 
                        production and to the protection of man and the 
                        environment from insects, rodents, weeds, and 
                        other forms of life which may be pests; but it 
                        is essential to the public health and welfare 
                        that they be regulated closely to prevent 
                        adverse effects on human life and the 
                        environment, including pollution of interstate 
                        and navigable waters; . . . and that regulation 
                        by the Administrator and cooperation by the 
                        States and other jurisdictions as contemplated 
                        by the Act are appropriate to prevent and 
                        eliminate the burdens upon interstate and 
                        foreign commerce, to effectively regulate such 
                        commerce, and to protect the public health and 
                        welfare and the environment.'' (Emphasis added)

        H.R. Rep. No. 92-511, 92d Cong., 2d Sess., 13-14 (1971)

    The FIFRA registration process described by EPA in the Fact Sheet 
accompanying the Agency's draft PGP in June, 2010 detailed the 
requirements for many dozens of environmental, health and safety 
studies to establish the conditions under which pesticides can be 
legally used in the United States. Many of these studies form the basis 
of EPA's use restrictions incorporated into pesticide product labels, 
including for those product uses covered by EPA's PGP. EPA's 2006 final 
rule codified the Agency's long-held exemption from NPDES permitting of 
pesticides applied into and over, including near, waters of the US when 
made consistent with the FIFRA label (71 Fed. Reg. 68483). However, 
this rule was widely challenged and in February 2009, the 6th Circuit 
Court of Appeals vacated EPA's rule and required the development of a 
pesticide NPDES permitting program for these uses. The Court granted 2 
year stay of its decision to April 9, 2011.
    Unless Congress relieves them of the duty in the two months 
remaining to the end of the stay, EPA and states must complete and 
implement 45 different functional, achievable and defensible NPDES 
general permits for aquatic pesticide use.

Pesticide Testing & Registration Requirements
    Pesticides and their timely application play an important role in 
protecting our food and water supplies, public health, natural 
resources, infrastructure and green spaces. All pesticides used in the 
United States for agriculture, lawn and garden, silviculture, mosquito 
control, aquatic invasive weed and animal control, and other pest 
control uses are thoroughly evaluated and strictly regulated by Federal 
and state laws. Before pesticides can be manufactured, transported or 
sold, they must undergo nearly a decade of extensive research, 
development, testing, governmental review, and approval. More than 100 
studies costing more than $150 million are performed to determine a 
chemical's safety to human health and the environment; only one in more 
than 100,000 candidate chemicals successfully pass these trials and 
become registered pesticide products for the marketplace.
    EPA regulates the testing and use of pesticides primarily under the 
authority of the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA).\1\ Through FIFRA regulations, EPA controls pesticide testing, 
registration, manufacture, composition, packaging, labeling, 
transportation, use, storage, and disposal by applying a risk/benefit 
standard (``will not cause any unreasonable risk to man or the 
environment, taking into account the [pesticide's] economic, social, 
and environmental costs and benefits . . .''). EPA may require 
additional data at any time, and suspend or cancel a product's 
registration for good cause. Pesticide product labels incorporate 
directions for use and specific use restrictions that are conditions of 
EPA's registration requirements. Amendments to FIFRA in 1988 introduced 
a further layer of regulation by directing EPA to conduct a 
comprehensive pesticide re-registration program--a complete review of 
the human health and environmental effects of pesticides first 
registered before November 1, 1984, to make decisions about these 
pesticides' future use. Pesticides that met current scientific and 
regulatory standards were declared ``eligible'' for re-registration, 
and any additional requirements for re-registration were summarized in 
Re-registration Eligibility Decision (RED) documents. The re-
registration program was completed in 2008 and implemented a number of 
policy changes. Even before the re-registration program was completed, 
EPA began implementing reregistration review starting in early 2007.
---------------------------------------------------------------------------
    \1\ The Federal Food, Drug, and Cosmetic Act (FFDCA) authorizes EPA 
to set tolerances, or maximum residue levels, for pesticides used in or 
on foods or animal feed, and authorizes other agencies to monitor for 
pesticide residues and enforce the tolerances. Within the Food Quality 
Protection Act of 1996, Congress amended FIFRA and FFDCA to establish 
additional safety standards for new and old pesticides and to make 
uniform requirements regarding processed and unprocessed foods. Other 
Federal statutes may also affect pesticide registration and use, 
including the Endangered Species Act.
---------------------------------------------------------------------------
Economics of EPA's PGP
    The economic conditions of recent years have forced states, 
businesses and individuals across the country to face dire budget 
situations. This has caused everyone, including Congress, to tighten 
their belts, cancel plans for many new initiatives, examine 
expenditures and cut those that are unnecessary or unaffordable. We are 
convinced that EPA's PGP is both unnecessary and unaffordable. As the 
Honorable John Salazar, Commissioner, Colorado Department of 
Agriculture and former Member of Congress, states in his testimony for 
this hearing, ``It is very difficult to justify diverting even more 
resources to manage paperwork for a permit that is duplicative of other 
regulatory programs and has no appreciable environmental benefits.'' 
\2\
---------------------------------------------------------------------------
    \2\ Congressional Testimony, February 16, 2011, Statement of the 
Honorable John Salazar, Commissioner, Colorado Department of 
Agriculture, before the Joint Hearing of the Committee on Agriculture 
Subcommittee on Nutrition and Horticulture, and Committee on 
Transportation and Infrastructure Subcommittee on Water Resources and 
Environment to Consider Reducing the Regulatory Burden Posed by the 
Case National Cotton Council v. EPA.
---------------------------------------------------------------------------
    Last fall EPA published its statement of economic and time burden 
estimated to be levied by its PGP on private and public entities, in 
the form of an Information Collection Request (ICR). Using EPA's data, 
we have determined that EPA has significantly underestimated the true 
potential cost and burden of the PGP. For example, EPA's November 2010 
publication of the ICR anticipates that private permittees will spend 
nearly 1 million hours and $50 million annually to comply with the PGP, 
and Federal, state and municipal permitting authorities will 
collectively spend nearly 46,000 hours and spend $1.7 million 
implementing and enforcing the PGP. While those ICR estimates would be 
indeed significant burdens, we believe they don't come close to the 
likely real cost in time and funds for both permittees and permitting 
agencies. This underestimate is revealed when we examine the ICR in 
detail:

   EPA's estimate of business-permittee burden is that 5.7 
        million aquatic pesticide applications are made to more than 
        100 million acres annually, and that 365,000 permittees will 
        spend a total of 987,904 hours and $50 million annually to 
        comply with just the information collection requirements of the 
        PGP. This translates to 2.7 hours/year and $50 for each 
        permittee.

   EPA's estimate of the permitting-authority burden is that 44 
        states will spend a total of 45,809 hours and $1.7 million 
        annually to implement the program. This translates to 1,041 
        hours and $38,636 per state.

   However, as Mr. Salazar testified at this hearing, the 
        combined estimated annual costs for Colorado municipalities and 
        commercial permittees for PGP implementation is over $21 
        million. Certainly much more than EPA's estimate.

    Permittees across the country--both public sector and private 
sector--will most assuredly face costs that are several orders of 
magnitude greater than EPA estimates. The PPC believes that the true 
cost of the PGP could exceed $1 billion in the first year if EPA 
considers all permittees' costs and permitting authorities in all 
states. This estimate would include the true costs of:

   Studying the nuances of each permit, and identifying the 
        compliance requirements for all states in which a permittee 
        operates;

   Communication with staff, regulators, clients, and others;

   Research to collect data needed to complete the NOIs, PDMPs, 
        etc.;

   Development of the PDMP, and keeping it current;

   Keeping records, filing NOIs, drafting reports and other 
        records;

   Staff recruitment and training for PGP compliance;

   Awareness of, and compliance with, endangered species/
        habitat protections;

   Equipment upgrades, inspections; calibrations, preventative 
        maintenance;

   IPM considerations, actions, recordkeeping, annual 
        reporting;

   Monitoring, surveillance, compliance assurance;

   Possible adverse incident mitigation, 24 hour/5 day 
        reporting; and

   Business insurance costs, possible legal costs.

    EPA estimated 40 hours would be necessary to develop a Pesticide 
Discharge Management Plan (PDMP), and at least 2 hours annually would 
be needed to update it. We agree that this figure is likely to be close 
to the average time it would take. However, EPA limits this burden for 
the PDMP to just 12,167 permittees (about 3% of the total 365,000 
permittees)--those EPA feels would likely exceed the annual acreage 
threshold for submitting an NOI. On this basis, EPA calculates that the 
burden for the PDMP alone would be just $25.6 million for PDMP 
development and $1.0 million for PDMP maintenance. If instead, however, 
10% of the total 365,000 permittees have to develop a PDMP (EPA's 
estimate of the percentage of permittees that will submit NOIs), then 
the total cost goes up to about $80 million just for the PDMP 
(remember--EPA estimated the entire PGP would cost only $50 million 
annually). If 20% of the total permittees have to develop PDMPs, the 
total cost might be become $160 million.
    We believe EPA has overlooked many other important burdens and 
expenses too, for example the cost of:

   Studying the new state permits when they are final in all 
        states where aerial applicators may work could easily take 24 
        hours the first year to accurately determine all legal 
        responsibilities and timelines for compliance (EPA does not 
        include these costs in the ICR).

   Communication with regulators, staff and contractors could 
        take 8 hours annually (EPA does not include these costs in the 
        ICR).

   Doing the research, writing an NOI, and mapping the 
        watercourses could easily take 10-12 hours per state. It 
        becomes more time consuming if a custom applicator, for 
        example, has multiple clients and multiple states in which to 
        operate. EPA estimates that it will take 2.0 hours the first 
        time, 0.5 hours thereafter to do the research needed to write 
        an NOI and submit it to regulators.

   Surveillance monitoring is currently a wild card, for it's 
        not clear who would have to do what monitoring, and under what 
        conditions. Depending on the scope of the monitoring, the time 
        required and costs could become extreme. EPA estimated that 
        0.25 hours would be needed four times per year (1 hour total) 
        for large site visual monitoring by all permittees. Further, 
        EPA estimates that zero (0) hours would be needed for smaller 
        site visual monitoring by all permittees. No estimate was given 
        for costs associated with in-stream analytical monitoring, 
        should that be required. Equipment maintenance, calibration, 
        and other required actions could take 50 to 60 hours per year 
        (EPA does not include these costs in the ICR).

   Because of the explicit requirement for extensive 
        recordkeeping and documentation of actions, ongoing 
        recordkeeping will likely require 4 to 5 hours per week (200 to 
        250 hours per year), and the hiring of additional staff to 
        complete. Such recordkeeping will be absolutely necessary for 
        PGP compliance and a critical protection from opportunistic 
        citizen lawsuits. However, EPA estimates that it will take only 
        0.25 hours, four times per year (1 hour total) to do all the 
        recordkeeping of treatment areas and products used in the PGP.

   IPM data collection, decision making, recordkeeping and 
        reporting could take 50 to 100 hours per year, or more, 
        depending on the industry segment and intensity of pests (EPA 
        does not include these costs in the ICR).

   Annual reporting, especially when there are multiple 
        clients, multiple pests treated, and multiple states involved 
        could take 10 or more hours (EPA estimates 2 hours in the ICR).

   Adverse incident response and reporting could take up to 20 
        hours if an adverse incident occurs (EPA estimates 2 hours).

   Custom applicators will find their annual report writing 
        complicated by the many products, treatment areas, and varied 
        customers serviced during the year. The time for each annual 
        report (one for each state in which the custom applicator 
        operates) would easily require 4 hours or more. EPA estimates 
        that it will take 2 hours to write and submit an annual report.

Unknown Legal Jeopardy Awaits Permittees
    Thousands of pesticide ``operators'' in the U.S. will soon have to 
comply with NPDES permitting requirements to which they have never 
before been subjected. With the deadline for completion and 
implementation set by the court less than 2 months away (and with only 
about \1/2\ of the states having proposed draft PGPs), it is not 
unreasonable to expect that more than a few of the resulting permittees 
could soon (after April 9) find themselves either unable to continue to 
legally apply pesticides or be exposed to legal jeopardy from citizen 
suits or agency enforcement for minor paperwork violations that have no 
actual impact on environmental protection. Currently CWA penalties are 
$37,500 per day per violation, and EPA's PGP has literally dozens of 
opportunities for someone to violate the CWA, sometimes more than once 
for the same infraction. This legal jeopardy is significant, and 
pesticide users and applicators may well have to defend themselves 
against trivial litigation.

Conclusion
    While an objective of EPA's PGP is to ``minimize discharges of 
pesticides,'' we believe it is truly an unintended consequence of the 
6th Circuit decision that many cities, state agencies or individual 
companies may choose to abandon necessary pest control. This could 
hamper ongoing efforts to control invasive pests and reduce water 
quality as a result. Congress must act to clarify that pesticides 
applied in accordance with FIFRA product labels are not subject to 
Clean Water Act NPDES permitting requirements.
    We appreciate your interest in this important national issue. Thank 
you for providing us with this opportunity to present this testimony to 
you.
            Sincerely,

            
            
                                 ______
                                 
         Submitted Statement of American Farm Bureau Federation
    The American Farm Bureau Federation (AFBF) would like to submit 
this statement for the record on the joint hearing held Feb. 16, 2011, 
by the Subcommittee on Nutrition and Horticulture, Committee on 
Agriculture and the Subcommittee on Water Resources and Environment, 
Committee on Transportation and Infrastructure.
    AFBF is the nation's largest general farm organization, 
representing farm and ranch families in all 50 states and Puerto Rico. 
Farm Bureau members produce a variety of commodities grown or raised 
commercially in the United States. AFBF is a farm advocacy organization 
that regularly represents its members' interests before Congress, 
Federal regulatory agencies and the courts. Many of AFBF's members use 
pesticides to produce crops, livestock and poultry, and these producers 
could be directly affected by the proposed Environmental Protection 
Agency (EPA) general permits.
    We believe there is an urgent need for legislation to fix a 
regulatory quagmire for farmers and ranchers--the initiation by EPA of 
another pesticide application permitting process under the Clean Water 
Act (CWA). Pesticide applications have always been effectively 
regulated under the Federal Insecticide and Rodenticide Act (FIFRA)--
which is also administered by EPA--and farmers are bound by law to use 
pesticides properly as directed by the product label. Having a 
duplicative permit process to apply a safe and already approved product 
that will not improve food safety or the environment does not make any 
sense. With EPA's permit scheme set to become effective April 9, 2011, 
which is only weeks away, Congress needs to take action quickly. We all 
need to work with a sense of urgency to keep overly burdensome, costly 
and duplicative regulation and potential litigation away from the gates 
of our farms and ranches.
    Since the passage of the CWA in 1972 and major reforms of FIFRA in 
1972, EPA has never required NPDES permits for the application of 
pesticides. Unfortunately, multiple lawsuits have undercut the policies 
developed by Congress, and EPA is now developing an NPDES permitting 
system for pesticides. These new general permits will double the 
permittees under the NPDES program and result in regulatory and 
administrative burdens that will reach well beyond just developing and 
issuing the permits. NPDES pesticide permits will affect state 
agencies, city and county municipalities, parks and recreation 
managers, utility rights-of-way managers, railroads, roads and highway 
vegetation managers, mosquito control districts, water districts and 
managers of canals and other water conveyances, pesticide applicators, 
farmers, ranchers, forest managers, scientists and many, many others.
    EPA has yet to finalize its NPDES general permit. Once it does, EPA 
and the states will then need to fund duplicative programs and 
personnel for technical and compliance assistance, monitoring and 
enforcement programs. The cost of this permit program will be a 
significant financial drain on Federal, state and local coffers. The 
costs associated with this dueling regulatory system are a tragedy, 
because state regulatory agencies have openly stated that the sensible 
and responsible approach is to maintain regulation of pesticides under 
FIFRA. They have also stated that they anticipate that no meaningful 
water quality improvement would be gained through permitting this new 
group of sources. In other words, this appears to be government at its 
worst--regulation for its own sake, resulting in duplication and 
expense that result in all cost and no benefit.
    The permit being developed by EPA will add performance, 
recordkeeping and reporting requirements to an estimated 5.6 million 
pesticide applications per year and preempt the science-based 
ecological review of pesticides and label requirements for uses 
regulated under FIFRA. Never in the 62 years of FIFRA or 38 years of 
the CWA has the Federal Government required a permit to apply 
pesticides for the control of such pests as mosquitoes, forest canopy 
insects, algae, or invasive aquatic weeds and animals, like Zebra 
mussel. Again, Congress omitted pesticides in 1972 when it enacted the 
CWA NPDES program, and despite major rewrites since, never looked 
beyond FIFRA for the regulation of pesticides.

The Problems
    The problems associated with a new permit system are numerous. The 
added public and private sector cost will be significant. Given tight 
budgets, the cumulative impact of this resource drain will be to force 
states to reallocate limited resources from other important activities 
to this new permit program. The new permit program will not be just a 
paper exercise, it will require monitoring and surveillance, planning, 
recordkeeping, reporting and other tasks. This will lead to significant 
delays, costs, reporting burdens and legal risks from citizen suits for 
hundreds of thousands of newly-minted permit holders, without enhancing 
the environmental protections provided by FIFRA compliance. To date, 
EPA's proposed general permit only covers applications of pesticides 
registered for aquatic use and applied to water or forest canopies over 
flowing or seasonal waters. It would not cover pesticide applications 
registered and intended for terrestrial use. However, there are some 
who believe most pesticide applications should require a permit if 
there is even a chance that the pesticide could come in contact with 
any water. So, even though EPA may not currently cover farm 
applications, nothing in the CWA or the proposed permit protects 
against citizen suits against farmers for not obtaining a permit.
    The new permit will be directly enforced by EPA in Alaska, 
Massachusetts, New Jersey, New Mexico, Idaho, Oklahoma, on Indian and 
Federal lands and in most territories. The remaining states must adopt 
the Federal model or develop their own NPDES permitting program 
pursuant to their CWA delegated authority from EPA. EPA and many states 
will not meet the court's deadline of April 9 for implementation of 
these permits, nor will permittees nationwide have time to fully 
understand or come into compliance with the permits.
    These permits will have broad and severe impacts. Without adding 
any additional environmental benefits, the NPDES permits' complex 
compliance requirements will impose crippling economic burdens on 
thousands of small businesses, communities, counties and state and 
Federal agencies legally responsible for pest control; expose them to 
legal jeopardy through citizen suits over paperwork violations; and 
cost jobs across America as permittees of all kinds lose in their 
attempts to comply with, or implement, these permits.
    Legislative action is needed now. Following the 6th Circuit Court 
of Appeals' decision, various interests petitioned the court for an en 
banc review, which was denied. Subsequently, two separate cert 
petitions were submitted to the U.S. Supreme Court for review of the 
6th Circuit decision, supported by various amicus briefs, including a 
bipartisan amicus brief submitted by 40 members of the House and 
Senate. But the Court declined to hear the case. Because there is no 
possibility of a legal remedy, we ask Congress for a legislative 
solution that will permanently remove the looming specter of NPDES 
permits for pesticide applications. What is needed is nothing more or 
less than what has been EPA's interpretation of the law since 1972--
that pesticides applied into, over or near waters of the U.S. are not 
subject to NPDES permits.
    Our economy is struggling to recover from a recession. This permit 
proposal will impact all levels of government and the agriculture 
industry by creating unnecessary costs and additional mountains of red 
tape, and jeopardizing our businesses with citizen suits. We believe 
there will be no additional environmental benefits resulting from a new 
permit, nor do we foresee any environmental harm from continuing what 
has been the policy for nearly 4 decades.
    We ask Congress to take action before the permits become final. 
Time is of the essence for to address this looming regulatory threat. 
We are ready to help you in this effort in any way we can.
                                 ______
                                 
  Submitted Statement of Chemical Producers & Distributors Association
    Mr. Chairmen and Members of the Committees:

    On behalf of the membership of the Chemical Producers & 
Distributors Association (CPDA), we submit this testimony for the 
record.
    CPDA is the primary advocate on Federal legislative and regulatory 
issues for generic pesticide registrants, adjuvant and inert ingredient 
manufacturers, and product formulators and distributors. With over 600 
facilities nationwide, we represent over $7 billion worth of pest 
control products used on food, feed, and fiber crops and in non-crop 
segments of the pesticide industry.
    On January 18, 2011, President Barak Obama wrote in The Wall Street 
Journal that he was initiating a ``government-wide review of the rules 
on the books to remove outdated regulations that stifle job creation 
and make our economy less competitive.'' The President also noted that 
``sometimes, those rules have gotten out of balance, placing 
unreasonable burdens on businesses--burdens that have stifled 
innovation and have a chilling effect on growth and jobs.''
    Today, Congress has before it the opportunity to join together in 
bipartisan effort to eliminate a regulation that meets the President's 
rationale for repeal. The Environmental Protection Agency (EPA) 
regulation that requires a general permit under the National Pollution 
Discharge Elimination System (NPDES) for certain pesticide applications 
is one that reasonable people should agree is duplicative, costly, 
burdensome, and ultimately unnecessary. By amending the Clean Water Act 
(CWA) to specifically exempt EPA-registered pesticide products, 
Congress will make government more efficient while ensuring human 
health and the environment are protected and at the same time, protect 
jobs.
    It deserves to be noted that the rulemaking is the result of the 
January 2009 6th Circuit Court of Appeals National Cotton Council v. 
EPA ruling that biological pesticides and residues left in water from 
products regulated under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) are a pollutant and should be regulated under 
the Clean Water Act's (CWA) National Pollutant Discharge Elimination 
System (NPDES). In nearly 40 years of administering the CWA, EPA had 
never required an NPDES permit for the application of a pesticide, when 
the pesticide is applied in a manner consistent with FIFRA and its 
regulations.
    It is also important to note that EPA is being required to 
promulgate this rule because of a judicial interpretation of the Clean 
Water Act and not because of a lack of Federal regulation of 
pesticides. FIFRA processes are designed to protect both human health 
and the environment. To be approved a pesticide product must go through 
rigorous testing and review, often taking years, to determine 
appropriate uses and application rates, and to ensure that it does not 
pose an unacceptable risk to human health or the environment. The 
Office of Pesticide Programs (OPP) determines, during the product 
application process in accordance with FIFRA, the chemical's allowable 
application rate and writes a label for its use. The label is the 
regulation of that product and it instructs the applicators of the 
proper use of the chemical. It is a violation of Federal law to use a 
chemical in a manner that is inconsistent with its label instructions.
    Congress omitted pesticides in 1972 when it enacted the CWA NPDES 
program, and despite major rewrites since, never looked beyond FIFRA 
for the regulation of pesticides. By amending the CWA now to formally 
exempt FIFRA-regulated products, Congress will be reaffirming what it 
intended in 1972 and has worked effectively for nearly 40 years.
    Additionally, the proposed rule is not expected to provide any 
substantive benefit to the environment. As a matter of fact in the 
proposed rule EPA stated:

        ``The requirements of a PDMP [Pesticide Discharge Management 
        Plan] is not an effluent limitation because it does not 
        restrict quantities, rates, and concentrations of constituents 
        that are discharged.''

    In plain language this means that EPA wisely recognized that the 
agency does not plan to direct how, when, where and how much of a 
pesticide can be used through this permit process, as this is not the 
function of a permit. The rule is expected to cover 5.6 million 
pesticide applications per year by approximately 350,000 applicators. 
Although the EPA proposed permit indicated a potential reduction in use 
of pesticides, this would come from using the minimum effective amount 
of pesticide and keeping application equipment in good repair, 
practices that are already in place by applicators and product users. 
Unfortunately, reiterating these `best practices' in the permit process 
only guarantees burdensome reporting and record-keeping requirements.
    Not only is there negligible environmental benefit, if any, but the 
rule will also be costly and burdensome to the states and permitees. In 
the proposed rule outlining the permit plan, EPA concluded the permit 
will add performance, recordkeeping and reporting requirements to 5.6 
million pesticide applications per year. EPA estimates the potential 
number of permit applicants at 365,000 and estimates the annual time 
burden to be 1,033,713 hours for permitees, and 45,809 hours for the 45 
`delegated' permit authorities in the states: EPA will directly 
implement the remaining non-delegated state and territorial programs. 
Annual costs for program are estimated at $50.1 million for applicants 
and $1.7 million for delegated authorities.
    Many pesticide users and state regulators, upon review of the EPA 
methodology, believe that these high numbers actually drastically 
underestimate the time and money it will take permitees, states and EPA 
to fully implement and comply with the permit program. Some commenters 
on the proposal believe EPA underestimated costs by a factor of five, 
while others believe the total cost across all sectors of permit 
applicants to be over $1 billion.
    The EPA's estimate of the annual time burden, put in perspective, 
is equal to 114 man-years of effort for no negligible benefit. We 
believe the record-keeping burden will be closer to 4 to 5 hours a 
week, or 200-250 hours annually, and not the 15 minutes four times per 
year--an annual total of just 1 hour--predicted by EPA. Permitees will 
have to keep extensive records to prevent frivolous citizen lawsuits 
from bankrupting their business merely over a paperwork issue. Congress 
needs to address this situation immediately to prevent this incredible 
waste of time and money from becoming a reality.
    Added to these costs are potential Endangered Species Act (ESA) 
requirements, as EPA filed the proposed rule with a placeholder for 
incorporating Section 7 consultation results. Recent history suggests 
that potentially burdensome prohibitions are likely to find their way 
into the permitting scheme, either from activist environmental 
lawsuits, or from other Federal or state agency determinations. While 
there is no way to know how much of an additional cost burden the ESA 
placeholder might represent, it is very likely to be significant.
    CWA violations are punishable with fines of up to $37,500 per day 
per violation, not including attorney's fees. Since these fines can 
stack up, the final toll can very easily bankrupt a business. The 
permits' complex compliance requirements will impose tremendous new 
burden on thousands of businesses, communities, counties, and state and 
Federal agencies legally responsible for pest control, exposing them to 
legal jeopardy through citizen suits over paperwork violations. 
Ultimately, the permit could jeopardize jobs, the economy and threaten 
human health and environmental protection across America as regulators 
and permitees grapple to implement and comply with the permit process.
    In review, for 38 years the CWA and FIFRA have worked in unison, 
protecting human health and the environment. Now, due to a 
reinterpretation of the CWA, EPA is about to promulgate a costly and 
likely job-killing permitting scheme that will produce negligible 
environmental benefit. Clearly this regulation meets the high standard 
set by the President for repeal: one of high cost, as estimated by the 
agency and impacted parties, but negligible environmental benefit, as 
stated in the proposed regulation. Congress should quickly pass 
legislation that nullifies the need for permitting by exempting FIFRA 
approved products from the CWA.
    Thank you.
                                 ______
                                 
                Submitted Statement of CropLife America

    CropLife America is the leading trade association representing the 
U.S. crop protection industry and our members supply virtually all of 
the crop protection products used by American farmers. CropLife 
America's member companies, and members of our counterpart association 
at RISE,\1\ proudly discover, manufacture, register and distribute crop 
protection products for American agriculture, and specialty use 
products such as those used to protect natural resources, public health 
and safety.
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    \1\ Responsible Industry for a Sound Environment (RISE)--
www.pestfacts.org.
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    CropLife members work with farmers, ranchers and growers everyday 
to ensure that crop protection tools are registered properly and used 
correctly. As a matter of fact, America's abundant, affordable food 
supply depends on the availability of safe, effective crop protection 
products. Significant portions of the $100 billion in US farm exports 
each year are made possible by the benefits of crop protection 
products. CropLife America members support modern agriculture by 
looking forward: each year the crop protection industry spends hundreds 
of millions of dollars on research and development, with much of that 
investment going into environmental and safety studies that produce 
data that meets or exceeds the Environmental Protection Agency's (EPA) 
information requirements for pesticide registration, reregistration and 
other needs.
    CropLife America has a long history of working cooperatively with 
EPA and the U.S. Congress on issues affecting crop protection, natural 
resource protection, human health and water quality protection. In that 
spirit, we share the Committees' concerns about the looming prospect of 
permitting aquatic pesticide applications under the Clean Water Act 
(CWA). The use of aquatic pesticides is vital to the protection of 
public health and the environment because these products help Federal, 
state and local governments control pests such as mosquitoes, forest 
insects like the gypsy moth and pine bark beetle, algae, and invasive 
aquatic weeds and animals, like Zebra mussels.
    Never in the 62 years of the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA), nor 38 years of the CWA, has the Federal 
Government required a permit to apply pesticides ``to, over or near'' 
waters of the U.S. In fact, Congress specifically omitted pesticides in 
1972 when it enacted the CWA, and despite major rewrites since, never 
looked beyond FIFRA for the regulation of the regular, label-approved 
uses of pesticides. EPA codified decades of Federal policy with its 
2006 rule exempting aquatic pesticide applications from the CWA 
National Pollutant Discharge Elimination System (NPDES) permitting 
system when used in accordance with the FIFRA product labels.
    Nonetheless, last year, the U.S. 6th Circuit Court of Appeals 
overturned EPA's 2006 rule, determining that NPDES permits are needed 
for the legal application of such pesticide products. Agriculture and 
the rest of the pesticide user community are still baffled by the 
Federal Government's choice not to more rigorously defend its 2006 
rule. Especially since the government, in a brief to the Solicitor 
General, stated that the 6th Circuit got it wrong in National Cotton 
Council v. EPA, and, went so far as to suggest that the circuit court 
violated earlier Supreme Court precedent by failing to provide proper 
due deference to an agency determination.
    CropLife America believes the 6th Circuit got it wrong. The court 
agreed that pesticides when applied consistent with FIFRA label 
directions are not pollutants, and, as such, should not require NPDES 
permits. But, the court went on to rule that any residues that may 
remain after the beneficial use has been completed are pollutants, and, 
in order to control those residues, NPDES permits are necessary when 
the pesticides are initially applied. We believe that the court 
incorrectly reversed EPA's long-standing policy thus layering CWA 
regulations on top of established, rigorous FIFRA requirements.
    We understand that EPA now hopes to finalize its NPDES general 
permit for certain pesticide uses next month, in March 2011, just a few 
weeks before the court imposed deadline of April 9, 2011. At that time, 
EPA and the states would then begin implementing and enforcing the 
permit. Permittees across the country would have little time to study 
and comply with the 45 new EPA and state permits, assuming they were 
fully implemented by April 9. We have heard from state regulators that 
they need more time to complete their permits, and we share the states' 
skepticism that the final permit from EPA can be ready in time for 
state to implement and enforce. We have also heard that Endangered 
Species Act (ESA) `consultation' on the permit with authorities in the 
U.S. Departments of Commerce and Interior is expected to extend beyond 
its goal for completion of February 25, 2011. All these complications 
and missed deadlines leave little hope that states and pesticide users 
subject to the permit will have program in place in time to meet the 
court deadline less than 2 months away.
    The permit will add performance, recordkeeping and reporting 
requirements to millions of pesticide applications per year, and 
preempt the science-based ecological review of pesticides and label 
requirements for uses regulated under the FIFRA. And, this one decision 
overnight will nearly double the population of entities requiring 
permits under CWA and the burdens state regulators must bear to 
implement the permits. In addition, overnight the financial burdens 
will dramatically increase for state agencies, local municipalities, 
recreation, utility rights-of-way, railroads, roads and highways, 
mosquito control districts, water districts, canals and other water 
conveyances, commercial applicators, farm, ranches, forestry, 
scientists, and many, many others. This is an enormous burden--and no 
one is suggesting any related benefit to protection of humans or the 
environment.
    The permit will threaten their economic survival of applicators 
nationwide, either due to the cost of obtaining a permit or due to 
their vulnerability to citizen law suits under CWA. New requirements 
for monitoring and surveillance, planning, recordkeeping, reporting and 
other tasks will create significant delays, costs, reporting burdens 
and legal risks from citizen suits for hundreds of thousands of newly-
minted permit holders without enhancing the environmental protections 
already provided by FIFRA compliance.
    To date, EPA's proposed general permit only covers applications of 
pesticides registered for aquatic use and applied to water or forest 
canopies into or over flowing or seasonal waters, and conveyances to 
those waters; it would not cover pesticide applications registered and 
intended for terrestrial use. However, activists indicate that they 
believe most pesticide applications should require a permit if there is 
even a chance that the pesticide could come in contact with any 
``water,'' either flowing water or seasonal drainage ditches that could 
be a conveyance to a water of the U.S. So, even though EPA may not 
currently cover farmland and rangeland pesticide applications, nothing 
in the CWA or the proposed permit protects against citizen suits 
against farmers for not obtaining a permit. This establishes an 
uncertain, increased level of liability for farmers and ranchers, as 
well as users applying pesticides to golf courses and public utility 
rights of way, and private homes and businesses.
    CropLife is grateful that so many Members of the Committees 
understand the serious nature of the 6th Circuit's ruling and EPA 
subsequent actions. We urge to introduction legislation that would 
amend the Clean Water Act to clarify that NPDES permits are not 
required for the applications of pesticides in compliance with FIFRA. 
Along with so many other stakeholders, we believe that legislation is 
the best way to relieve users and regulators of this tremendous 
duplicative burden, as well provide instruction EPA and the courts that 
Congress did not intend other environmental laws to overtake FIFRA.
                                 ______
                                 
          Supplemental Material Submitted by CropLife America

    Thank you for the opportunity to provide you with our response to 
the statement provided to the record of this hearing by Robert Gilliom, 
hydrologist with the U.S. Geological Survey (USGS), who provided an 
overview of the National Water Quality Assessment Program (NAWQA) and 
other studies of pesticides in surface- and ground-water. This 
statement is provided for the record in connection with the February 
16, 2011 joint hearing of the Committee on Agriculture--Subcommittee on 
Nutrition and Horticulture, and Committee on Transportation and 
Infrastructure--Subcommittee on Water Resources and the Environment.
    CropLife America (CLA) is an association that represents the 
companies that develop, manufacture, formulate and distribute crop 
protection chemicals and plant science solutions for agriculture and 
pest management in the United States. CLA's member companies 
extensively test, produce, sell and distribute virtually all of the 
crop protection products used by American farmers. Customers of CLA 
member companies, and those of our sister organization, RISE 
(Responsible Industry for a Sound Environment)', include 
farmers, ranchers, government agencies and entities such as mosquito- 
and aquatic weed-control districts, forest managers, agribusiness 
dealers, custom applicators, and scientists engaged in agricultural 
research.
    Scientists at CLA and its member companies followed NAWQA closely, 
and for many years our representative served on an advisory panel that 
NAWQA organized. In that role, we reviewed data, met with officials at 
USGS, reviewed draft NAWQA documents prior to publication, and offered 
recommendations and comments to NAWQA representatives. Overall, we 
found the studies conducted by USGS to be valuable, adding considerable 
information to the monitoring conducted by states and watershed 
organizations. From time to time during this period we provided input, 
primarily to urge USGS officials to clearly interpret the statistical 
significance of their findings and not extrapolate beyond conclusions 
directly supported by their empirical data and science. Dr. Gilliom's 
statement to this joint hearing provides a brief overview of NAWQA's 
findings. We offer the following additional observations regarding his 
statement for the Joint Subcommittee Hearing and the 2006 report ``The 
Quality of Our Nation's Waters--Pesticides in the Nation's Streams and 
Ground Water, 1992-2001.''
    Comments on NAWQA and Response to Dr. Gilliom's Statement to the 
Subcommittees:

    1. Detection Levels: Dr. Gilliom stated, ``At least one pesticide 
        was detected generally below levels of concern in waters from 
        all streams studies, and pesticide compounds were detected 
        throughout most of the year in water from streams with 
        agricultural . . . land-use watersheds.'' This was likely an 
        expected result, for ``USGS analytical methods were designed to 
        measure concentrations as low as economically and technically 
        feasible. By this ap-
        proach . . . pesticides were commonly detected at 
        concentrations far below Federal or state standards and 
        guidelines for protecting water quality. Detections of 
        pesticides do not necessarily indicate that there are 
        appreciable risks to human health, aquatic life, or 
        wildlife.''(2006 Report, p. 33). Pesticides provide important 
        social benefits and, with almost a billion acres of total 
        farmland and more than 300 million acres of harvested cropland 
        in the U.S. (USDA Economic Research Service, http://
        www.ers.usda.gov/statefacts/us.htm), the detection of extremely 
        low levels of pesticide products in selected watercourses is 
        not remarkable. Pesticide best management practices (BMPs) 
        coupled with land conservation measures continues to be an 
        important deterrent to off-target movement.

    2. Focus of Water Analyses: Dr. Gilliom stated, ``Most water 
        samples were analyzed for 75 pesticides and 8 degradates 
        [pesticide breakdown products], including 20 of the 25 most 
        heavily used herbicides and 16 of the 25 most heavily used 
        insecticides . . . most of the more than 400 registered active 
        ingredients were not analyzed.'' It is unlikely that the 
        addition of analyses for any of the other registered products 
        would have enhanced the determinations of the NAWQA study, for 
        most of the 75 products actually studied were found at either 
        nondetection levels (ND) or very infrequently (see attached 
        USGS statistical summary of NAWQA detections in water from 
        agricultural streams, 1992-2001).

    3. Single Year's Analysis: Entitled as a 10 year study of the 
        nation's water quality, the 2006 NAWQA report states that 
        ``most data analyses for stream water [quality] are based on 
        the single year of most intensive sampling'' (p. 2). However, 
        that ``single year'' was not the same study period throughout, 
        but varied widely across the many sites monitored and the 
        number of samples collected. Sampling followed a rotational 
        schedule over the 10 year period (20 of the 51 watershed Study 
        Units sampled during 1992-1995, 16 during 1996-1998, and 15 
        during 1998-2001), and the data collected were undoubtedly 
        affected by periods of widely differing seasonal weather 
        patterns and stream flow rates, different sampling periods and 
        intensities, changes over time in performance of the analytical 
        method and changes in data-reporting practices, as well as 
        changes over time and seasons in farming practices, crop 
        rotations, and pesticide use. This bias and how USGS overcame 
        it to produce ``agricultural'' detection trends are important 
        considerations.

    4. Oversampling of Targeted Agricultural Sampling Sites: Detections 
        of pesticides from ``agricultural areas'' are a key focus of 
        the NAWQA 2006 report, in which monitoring results are 
        presented from 1992 to 2001 at major agricultural stream and 
        river sites in 51 Study Units representing ``a wide range of 
        hydrologic and environmental settings across the Nation'' (p. 
        33). We understand from the 2006 report that the agricultural 
        watershed land-use criteria for NAWQA selection were that the 
        sites had greater than 50 percent agricultural land use and 
        less than or equal to five percent urban land use (p. 32). With 
        more than 300 million acres of harvested cropland (USDA 
        Economic Research Service), there are likely many such 
        agricultural sites in the U.S. However, the 2006 report's map 
        of NAWQA agricultural watershed sampling sites (p. 37) suggests 
        that the 83 agricultural watersheds and basins selected may 
        have had the additional selection criterion of providing the 
        greatest likelihood of pesticide detections, which could have 
        had the effect of biasing the total percentage of 
        ``agricultural detections'' in the study. Monitoring sites 
        selected were often closely bunched within discrete regions of 
        targeted states while many other agricultural regions and 
        states were either completely or largely ignored:

     For example, no samples were taken at all from more than a 
            dozen states.

     The map (p. 37) suggests that samples were taken from only 
            one site each in New York, Idaho, Arkansas, Missouri, and 
            Mississippi; from only two sites in all of Oregon, both 
            near each other in the Willamette Valley; from only two 
            sites in all of Florida, both located in the same southern 
            part of the state; from only two sites in all of Wisconsin, 
            near each other in the eastern part of the state; from only 
            three sites in all of Nebraska, near each other along the 
            Platte River; from three sites in the same part of 
            California's San Joaquin Valley (plus one site farther 
            north in the Central Valley); and from three sites in the 
            same part of southeastern Texas (plus one site farther 
            north in the same Brazos River basin), but no where else in 
            the state.

     However, certain agricultural regions appear to have been 
            oversampled. For example, eight sites in eastern Iowa were 
            sampled. Seven sites in southern Indiana were sampled. Five 
            sites in Washington State's agricultural Palouse/Yakima 
            region were sampled. It would be appropriate to describe 
            how such sampling was intended to represent a 
            ``nationwide'' view of agricultural impacts, and how such 
            selection bias was removed when interpreting pesticide 
            detections.

    5. Potential Effects on Human Health: Dr. Gilliom explained that 
        the NAWQA assessment of potential effects on human health was 
        based on comparing measured concentrations to available U.S. 
        Environmental Protection Agency drinking water standards and 
        fish consumption guidelines. He reported, ``Most detections of 
        pesticides were at low levels compared to human-health 
        benchmarks. Annual mean concentrations of one or more 
        pesticides exceeded a human-health benchmark in 8 of 83 
        agricultural streams and in 2 of 30 urban streams.'' He added, 
        ``About 7 percent of the nation's stream miles are predicted 
        [using USGS' models] to have a 5 percent or greater chance of 
        exceeding the drinking-water standard.'' However, all of the 
        samples are of raw water, and none was taken from public 
        drinking water systems (water treated by municipal systems to 
        remove contaminants).

    6. Potential Effects of Multiple-Pesticide Detections: The 
        assessment of the risks associated with the detection of so-
        called ``mixtures'' is another area of discussion within the 
        NAWQA report and Dr. Gilliom's statement. As USGS acknowledges, 
        available data on the co-occurrence of multiple chemicals is 
        sparse, and is not sufficient to draw valid science-based 
        conclusions regarding potential exposures. Whenever products 
        are designed to be used in the field as mixtures and this is 
        specifically stated on the pesticide label, registration will 
        not be granted until EPA's concern for application rates and/or 
        the allowed mixtures are addressed. With respect to hypotheses 
        concerning the possibility of synergistic, antagonistic or 
        additive effects of multiple pesticide residues detected in 
        water, EPA has determined that there is currently no valid and 
        accepted method for determining any such risks; nor is there 
        data showing that there is reason to believe that such effects 
        would make any significant difference in the risks that EPA 
        calculates. Best available data suggest that synergism, 
        antagonism and potentiation do not occur at expected 
        environmental concentrations of pesticides.

    7. Declining Levels of Agricultural Detections: The NAWQA study was 
        initiated almost 20 years ago, and many of the product 
        detections declined throughout the study because of forces such 
        as changes in agricultural management practices, advances in 
        science, market forces, and regulations. Dr. Gilliom recognized 
        this in his statement for the hearing. He described a 2009 USGS 
        report, ``Pesticide Levels Decline in Corn Belt Rivers,'' which 
        referenced lower detections from 1996 to 2006 (http://
        pubs.usgs.gov/sir/2009/5132/), but concluded that, overall, use 
        is the most dominant factor driving changes in detected 
        concentrations in sampled water. We believe that pesticide BMPs 
        can be just as important, and reference the statement of Dr. 
        Sullivan, lead author of the 2009 report, in which the reported 
        concentration downtrends for several important Corn Belt 
        pesticides from 1996 to 2006 ``indicat[e] the possibility that 
        agricultural management practices may have increasingly reduced 
        transport to streams . . .'' CLA and its member companies are 
        committed to product stewardship through sponsorship of 
        educational programs and research.

    This statement provides a brief response to Dr. Gilliom's overview 
of USGS research on pesticides in streams. We welcome the opportunity 
to provide any further information or assistance.
                                 ______
                                 
                          Submitted Questions
Response from Dr. Steven Bradbury, Director, Office of Pesticide 
        Programs, U.S. Environmental Protection Agency *
---------------------------------------------------------------------------
    * There was no response from the witness by the time this hearing 
went to press.
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Questions Submitted by Hon. Jean Schmidt, a Representative in Congress 
        from Ohio
    Question 1. Could you comment on the discussion draft and whether 
it takes us back to before the Cotton Council decision?
    Question 2. Has the EPA sought additional authority under FIFRA to 
address perceived problems associated with pesticides in surface water?
    Question 3. Are there benefits to the use of pesticides, and if so, 
how does EPA account for this during your review?
Questions Submitted by Hon. Bob Gibbs, a Representative in Congress 
        from Ohio
    Question 1. As I understand it, EPA evaluates pesticides during the 
registration process and again during the registration review process. 
Is there an example you can discuss where the agency has addressed a 
problem of pesticide exposure in water through either the registration 
or registration review process?
    Question 2. How does the EPA pesticide program account for exposure 
through drinking water when evaluating dietary exposure to pesticides?
    Question 3. Are there examples of pesticides where EPA has 
identified an unreasonable risk to surface water and has taken action 
to phase out the chemical?
Questions Submitted by Hon. Joe Baca, a Representative in Congress from 
        California
    Question 1. How do you assess chronic exposure to pesticides?
    Question 2. How do you assess acute exposure to pesticides?
    Question 3. You have talked extensively about the FIFRA risk 
assessment process. Can you talk more about how risk is mitigated under 
FIFRA?

Response from Dr. Andrew Fisk, Director, Maine Bureau of Land and Water 
        Quality; President, Association of State and Interstate Water 
        Pollution Control Administrators
Questions Submitted by Hon. Jean Schmidt, a Representative in Congress 
        from Ohio
    Question 1. You were each presented with a copy of the draft 
legislation. The bill was drafted with the help of EPA to ensure that 
it would be consistent with the agency's final regulation issued on 
November 27th, 2006. Do any of you have an opinion or position on the 
draft legislation?
    Answer. Our review of the draft legislation indicates that it would 
clarify that pesticides are exempt from the NPDES program. We are still 
trying to fully understand the legislative exceptions and how these 
would be implemented in practice. We expect to provide further comments 
as more information becomes available.

    Question 2. We have found an excerpt from House Report 92-511 
accompanying the 1971 amendments to FIFRA in which the Congress states:

        ``. . . but it is essential to the public health and welfare 
        that [pesticides] be regulated closely to prevent adverse 
        effects on human life and the environment, including pollution 
        of interstate and navigable waters, . . . and that regulation . 
        . . as contemplated by this Act are appropriate to . . . 
        protect the . . . environment.''

    Given that FIFRA was being amended at the same time the CWA was 
being enacted, does anyone on the panel disagree that Congress intended 
that pesticide applications in or near navigable waters be regulated 
under FIFRA, and not the Clean Water Act?
    Answer. I do not disagree.

    Question 3. If this legislation is not enacted, which pesticide 
applicators will be required to have an NPDES permit?
    Answer. EPA has proposed specific size thresholds and application 
types in or near water to be regulated, and indications are that the 
final permit will cover applications of pesticides registered for 
aquatic uses and applied to water or forest canopies into or over 
flowing or seasonal waters, and conveyances to those waters. However, 
there is nothing in the CWA nor the permit that protects many other 
FIFRA compliant pesticide applications from CWA citizen suits. This 
creates an uncertain liability for these users, which may prompt them 
to ultimately seek permit coverage and protection. EPA has projected 
that its final pesticides general permit will expand the NPDES universe 
by 360,000 plus permittees.
Questions Submitted by Hon. Bob Gibbs, a Representative in Congress 
        from Ohio
    Question 1. Does anything in the pesticide general permit or the 
Clean Water Act protect pest applicators not subject to the permit from 
a citizen suit under the Act--for example, applications to land on 
farms?
    Answer. No. But to be fair anyone can file a citizen lawsuit 
claiming a violation of the Act and so you could pose this concern for 
any number of possible activities other than pesticide application. 
However, as indicated in the earlier response to your colleague, Mrs. 
Schmidt, those pesticide applications not covered in EPA's final 
pesticide general permit, including agricultural applicators, are not 
protected from citizen suits under the permit. The CWA does provide 
several exemptions including agriculture stormwater runoff and 
irrigation return flows which could be applicable, depending upon the 
fact pattern (see e.g., Headwaters, Inc. v. Talent Irrigation Dist., 
243 F.3d 526 (9th Cir. 2001)). Many citizen groups have indicated that 
they believe most pesticide applications should be permitted if there 
is even a chance that the pesticide could come in contact with any 
water, either flowing water or seasonal drainage ditches that could be 
a conveyance to a Water of the United States. Some have rebutted this 
scenario by saying that this type of activity not ``near'' waters would 
be determined by a court to be a nonpoint source and so not regulated. 
However, the court's reasoning in National Cotton Council (Natl. Cotton 
Council of Am. v. USEPA, 553 F.3d 927 (6th Cir. 2009) seems to define a 
pesticide nozzle as a point source regardless of where it happens to be 
located when it is in use.

    Question 2. Many of our states have not yet even drafted general 
permit or a permit consistent with the ruling from the 6th Cir. Case. 
What do you recommend to these states and pesticide applicators in 
these states that are facing fines of $37,500 PER DAY for non-
compliance?
    Answer. States have been actively working with EPA on developing 
draft general permits, but they are in varying stages of implementing 
those permits. Although we don't anticipate an immediate wave of 
litigation, many potential permittees and states would be vulnerable to 
liability. With that in mind, ASIWPCA, along with APPCO and NASDA, sent 
a letter to EPA on February 11, 2011 requesting the Agency seek a 6 
month extension of the stay in the 6th Circuit. Although states have in 
good faith been developing their own pesticide permits, there are 
several factors beyond states control for which the majority feel a 6 
month stay is both necessary and appropriate to ensure significant 
vulnerability does not exist after the current stay expires on April 
9th. Although EPA has worked diligently with many stakeholders in 
developing the permit, it has not yet finalized and circulated the 
permit, which will be used in jurisdictions where EPA administers the 
NPDES program. This delay has compromised permit finalization in the 
states with delegated authority to administer the NDPES program. Many 
of those states are using the Federal permit as a design and 
implementation template. Additionally, states' permits will at minimum 
have to meet the thresholds specified in EPAs final permit. States that 
already have proposed permits may need to make adjustments to be 
consistent with EPA, which could require further public notice and 
comment procedures.

    Question 3. Notwithstanding EPA's efforts to develop a pesticide 
general permit, how many states will have to develop their own NPDES 
pesticide permit program?
    Answer. There are currently 46 states that have delegated authority 
under the CWA to administer their own NPDES permit programs. Of these 
46 authorized states, two of them (Alaska and Oklahoma) will be covered 
by the Federal pesticides general permit. This means that 44 states 
must develop their own pesticide permit that is at least as protective 
as EPA's final pesticide general permit, but can be more stringent.

    Question 4. If Congress does not act by April 9th, and the 
necessary permits are not in place in the states, what will be your 
likely course of action?
    Answer. Many states will be in a difficult position and subject to 
legal vulnerability. On behalf of states, ASIWPCA has requested EPA 
seek a 6 month extension of the stay in order to provide more time to 
fine tune their pesticide permits and build capacity for the wave of 
new permittees. To date we are not aware that any extension has been 
requested.
Questions Submitted by Hon. Joe Baca, a Representative in Congress from 
        California
    Question 1. Would EPA's pesticide general permit, if finalized in 
its current form require pesticide applicators to apply products 
differently than the FIFRA-registered label?
    Answer. Although EPA's final pesticide general permit has not been 
shared with states, based on the proposed the permit pesticide 
applicators would apply products in accordance with the FIFRA-
registered label.

    Question 2. So, if the permit is a permit to discharge a pesticide 
that is already regulated under the FIFRA label, isn't the permit 
really a paperwork exercise?
    Answer. States are concerned that it could become one for the 
reason you note, but also because of staff and resource limitations. 
NPDES permits are based on the filing of information by applicants, 
technical assistance, compliance inspections, as well as monitoring and 
assessment to determine whether permit limitations and conditions are 
appropriate. Given the size of the pending universe of permittees, 
states are well convinced that they cannot perform the variety of tasks 
associated with a NPDES permit program. There is just not sufficient 
staff or funding to do this.

    Question 3. Can you identify a concrete actual environmental 
benefit that will be gained from requiring an NPDES permit?
    Answer. In preparation for this hearing, ASIWPCA polled states as 
to whether they anticipated meaningful water quality improvements 
through permitting this new group of sources. Of the states able to 
respond in a tight time frame, an overwhelming majority said no. Given 
that state resources are already stretched, it seems an inefficient use 
of resources to have state regulating sources already covered under 
FIFRA. Additionally, states are concerned that their currents successes 
in other areas of the NPDES universe will be compromised by the 
addition of more sources to permit. Therefore other environmental gains 
may suffer due to the resources demands of the impending pesticide 
permitting programs.

Questions Submitted by Hon. Timothy H. Bishop, a Representative in 
        Congress from New York
    Question 1. I am concerned with what the scientific data from USGS 
on the presence of pesticides in surface and ground waters says about 
the effectiveness of current regulatory practices in protecting human 
health and the water-related environment.
    As I would guess you would recognize, states have similarly 
reported that pesticides are a significant pollutant of concern in the 
nation's list of impaired waters. According to state-reported data, 
roughly 17,000 miles of rivers and streams, 1,300 square miles of bays 
and estuaries, and 370,000 acres of lakes are currently impaired or 
threatened by pesticides.
    In certain states, such as the State of California, pesticides are 
listed as the number one cause of impairment for 303(d) listed waters.
    I recognize that your organization believes that the best way to 
address this issue is through FIFRA regulation.
    However, I have to question whether the status quo regulation is 
sufficiently protective of the water-related environment if pesticides 
keep showing up as a major source of impairment.
    In your view, is it simply a question of substituting the current 
FIFRA implementation process for Clean Water authorities, or do you 
believe, in the absence of Clean Water authorities, that FIFRA, itself, 
needs to be modified or strengthened to protect our nation's waters?
    Answer. As I noted in my testimony states recognize that pesticides 
are present in the nation's waters and that in certain locations there 
are impairments. However, in citing the thousands of miles of impaired 
streams, consideration must be given for pesticides whose use has been 
severely restricted or completely banned including DDT, chlordane, 
hexachlorobenzene, aldrin, dieldrin, and many, many others that show up 
on impaired waters lists. The list of impaired waters gets much smaller 
once you filter out the list of persistent legacy pesticides no longer 
(or very rarely) being applied. We have not had the opportunity to do 
such a refinement of the data you present, but it is relevant to the 
question at hand. An NPDES program for pesticide application near water 
will not resolve the legacy contamination of our nation's waters from 
banned or restricted pesticides.
    Likewise USGS data does not attribute a source for the pollution 
but rather indicates presence. Agriculture runoff and irrigation return 
flows are specifically exempted from NPDES, along with many other 
nonpoint sources of contribution, all of which can contribute to 
presence.
    States are comfortable that there is enough underlying authority in 
FIFRA to tackle the water quality problems that have been identified by 
states themselves or the USGS. If as a result of your inquiries you 
feel that additional statutory language should be added to FIFRA or 
specific work conducted by EPA's pesticide programs that would be 
entirely appropriate.
    Additionally, it is not apparent whether a CWA regulatory tool 
would improve pesticide mitigation. The NPDES program has accomplished 
much due to its focus on predictable and manageable flows, identifiable 
end-of-pipe controls, extensive monitoring, and substantial Federal and 
state funding for treatment facilities and technologies. Pesticide 
permitting will involve hundreds of thousands of transient, mini-point 
source very different from those the NPDES program was designed to 
control. Furthermore, when you take into account the larger water 
quality picture, once already scarce resources are spread to cover the 
projected 60 percent increase in the NPDES universe, states' successes 
in combating other impairments may decline. ASIWPCA informally polled 
states as to whether they anticipated meaningful water quality 
improvements through permitting this new group of sources. Of those 
states able to respond in the short time frame, an overwhelmingly 
majority indicated they do not anticipate meaningful improvements.

    Question 2. Dr. Fisk, generally speaking, would you agrees that 
decreasing the amount of pesticides and pesticide-by-products entering 
U.S. waters should improve overall water quality?
    Answer. Yes, with certain exceptions. Maintaining or restoring the 
environmental integrity of a watershed can be a complex activity, which 
may include eliminating invasive species, managing predator/prey 
relationships, maintaining stream bank vegetation and buffer zones, 
reducing aquatic weeds, protecting forests and tree stands, all of 
which can be assisted by the use of pesticides.

    Question 3. Would you agree that calibration and maintenance of 
pesticide spraying equipment should result in less pesticides showing 
up in U.S. waters?
    Answer. Yes, better maintained equipment would be more effective in 
minimizing this risk. However, these practices are currently set forth 
in regulations promulgated under FIFRA. Therefore, we find that 
requiring the same under the CWA would only be duplicative.

    Question 4. Similarly, would you agree that the use of non-chemical 
alternatives to pest control should result in less pesticides showing 
up in U.S. waters?
    Answer. While non-chemical alternatives might result in less 
pesticide contamination, these alternatives are not always without 
their own set of unintended consequences, and may present other sources 
of water quality impairments. Without more specifics on the composition 
of these alternatives I am hesitant to offer an opinion as to their 
overall water quality benefit.

    Question 5. Would you also agree that applying the lowest effective 
amount of pesticides necessary to control pests should reduce pesticide 
wastes in U.S. waters?
    Answer. Yes, this should reduce the amount of overall pesticides. 
However, I don't believe that a regulation requiring this practice 
under the Clean Water Act, that would only parallel the regulations 
currently under FIFRA, would produce any added benefit. I think it is 
worth mentioning that in some areas around the country where pesticides 
are detected in surface waters, you have individual homeowners applying 
lawn and garden products who would not be covered by the NPDES 
permitting program. Those very significant sources of pesticides need 
to be dealt with under FIFRA as well as continued and sustained public 
education and outreach.

    Question 6. Finally, would you agree that applying pesticides in 
accordance with their FIFRA labeling requirements should improve 
overall water quality?
    Answer. Yes. I agree that application of pesticides in accordance 
with FIFRA labeling is sufficient to address water quality impacts, 
especially when local conditions are considered. If there are specific 
instances where label requirements are not sufficient, then EPA's 
pesticide program should continue to address these issues through the 
use of their FIFRA authorities. Dual regulation under the CWA is 
duplicative and an inefficient use of strapped state resources.
Response from Dominick V. Ninivaggi, Superintendent, Division of Vector 
        Control, Suffolk County Department of Public Works, Yaphank, 
        NY; on behalf of American Mosquito Control Association; and 
        David Brown, Manager, Sacramento-Yolo Mosquito and Vector 
        Control District

Questions Submitted by Hon. Jean Schmidt, a Representative in Congress 
        from Ohio
    Question 1. You were each presented with a copy of the draft 
legislation. The bill was drafted with the help of EPA to ensure that 
it would be consistent with the agency's final regulation issued on 
November 27th, 2006. Do any of you have an opinion or position on the 
draft legislation?
    Answer. We support the current language if it successfully resolves 
the problems created by the 6th Circuit Court of Appeals ruling.

    Question 2. We have found an excerpt from House Report 92-511 
accompanying the 1971 amendments to FIFRA in which the Congress states:

        ``. . . but it is essential to the public health and welfare 
        that [pesticides] be regulated closely to prevent adverse 
        effects on human life and the environment, including pollution 
        of interstate and navigable waters, . . . and that regulation . 
        . . as contemplated by this Act are appropriate to . . . 
        protect the . . . environment.''

    Given that FIFRA was being amended at the same time the CWA was 
being enacted, does anyone on the panel disagree that Congress intended 
that pesticide applications in or near navigable waters be regulated 
under FIFRA, and not the Clean Water Act?
    Answer. We agree that Congress intended that pesticide applications 
in or around navigable waters be regulated under FIFRA and not the CWA. 
In view of the timing of the passage of the CWA and FIFRA, it appears 
that Congress appreciated that for efficiency purposes and to avoid 
unnecessary burdens both for the affected public and the Agency, 
pesticide impacts associated with their beneficial intended uses would 
appropriately be handled under FIFRA and not the CWA.

    Question 3. If this legislation is not enacted, which pesticide 
applicators will be required to have an NPDES permit?
    Answer. Absent legislative relief, the permit currently proposed 
will require the following pesticide applicators to have an NPDES 
permit: mosquito and other flying insect control, aquatic weed and 
algae control, aquatic nuisance animal control, and forest canopy pest 
control. However, other pesticide users have also expressed their 
concerns that the 6th Circuit decision on its face is also directly 
applicable to certain agricultural applications, subjecting them as 
well to potential litigation. The extraordinary expansion of CWA 
jurisdiction that the 6th Circuit ruling represents makes many uses 
that historically were not subject to NPDES requirements, now have to 
potentially address them or face substantial liability for their 
failure to do so. As far as we can determine, this emanates from the 
court misinterpreting what Congress intended almost 40 years ago.

    Question 4. How common is the misapplication of pesticides in the 
control of mosquitoes?
    Answer. While it cannot be guaranteed that absolutely no 
misapplications have occurred, the focus on compliance with labeling 
makes this a very uncommon event. We are not aware of enforcement 
actions that have been initiated by state or Federal regulators for 
pesticide applications made by mosquito abatement districts. Mosquito 
control professionals take great pride in ensuring that pesticides, 
when needed, are applied using technology that ensures effective 
targeting, dosage, and droplet spectrum--applied by individuals trained 
and certified in their use. GPS/GIS-monitored spray routes and spray 
output, droplet analysis, equipment calibration, comprehensive 
equipment maintenance schedules, and continuing education requirements 
are integral facets of any effective mosquito abatement program and are 
strongly endorsed by all members of the American Mosquito Control 
Association (AMCA). This comprehensive effort is designed to not only 
minimize misapplication, but to ensure that there is a margin of error 
should human fallibility intervene.

    Question 5. Who would pay the legal fees for you to defend against 
citizen suits?
    Answer. The overwhelming majority of mosquito control operations 
are publicly funded. Local taxpayers would pay the fees to defend 
against citizen suits. Should plaintiffs prevail in court, state and 
local governments would also be required to shoulder court costs that 
could easily exceed any fines and run into the millions of dollars.

    Question 6. If you have to divert program funding to defend against 
frivolous citizen suits, how would this affect the health and safety of 
the communities you serve?
    Answer. Tax funded mosquito control districts are already operating 
with tight budgets. Indeed, the current economy has significantly 
increased public funding challenges. Any diversion of funds that are 
currently used to control mosquitoes will result in increased 
infestations of biting mosquitoes and disease transmission in the 
communities served.

    Question 7. EPA is in the process of developing a pesticide general 
permit. Does the agency issuance of the general permit automatically 
cover applicators, or is it the responsibility of the pesticide 
applicators to seek coverage under the NPDES permit?
    Answer. It will be the responsibility of the pesticide applicators 
to seek coverage under the NPDES permit. Notices of Intent (NOI's), 
Pesticide Discharge Management Plans (PDMP's), duplicative record-
keeping and reporting will divert important financial resources that 
are currently being used to protect the public health from mosquitoes 
and mosquito-borne diseases.

    Question 8. Generally speaking, what will be the cost to those 
states to implement and administer an NPDES permit process for 
pesticide applications?
    Answer. It is unclear as to what the total cost will be to states 
to implement, administer and enforce the NPDES permits. States with 
many districts and smaller control entities will incur more costs than 
states without commensurate numbers of applicators. Much of the cost 
will ultimately be driven by efforts to forestall potential litigation. 
In California, it has already been estimated that it will cost local 
mosquito control agencies over $1 million of taxpayers' money to comply 
with the NPDES permit. The 734 districts and 1,105 smaller entities we 
have identified nationwide will all face record-keeping costs. In 
addition, the 1,105 smaller jurisdictions with budgets less than 
$50,000 will have to hire vector biologists and purchase expensive 
surveillance and GPS/GIS equipment to fully comply with even minimal 
permit requirements. These new budgetary needs will far surpass 
historical budgets and remain beyond the public's ability to sustain.

    Question 9. Are aquatic uses of pesticides subject to approval 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)?
    Answer. All pesticides and their uses are subject to approval under 
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

    Question 10. What, if any environmental protection is gained by 
having pesticide applicators get a NPDES permit?
    Answer. We believe there is no environmental protection gained by 
having pesticide applicators obtain an NPDES permit. The environmental 
protections are already provided though adherence to FIFRA and standard 
mosquito control practices.

    Question 11. How many states have large budget surpluses such that 
they can afford to administer duplicative programs such as this?
    Answer. We understand that at least 40 states (and likely more) are 
experiencing severe budget deficits. California, for example, is 
experiencing a budget deficit of over $20 billion. We are aware of no 
states or other jurisdictions with the excess funds available to 
implement unnecessary, duplicative regulation.

    Question 12. What are some of the benefits of using pesticides?
    Answer. The judicious use of pesticides as part of a fully 
integrated mosquito management program protects the public from 
pestiferous and disease-carrying mosquitoes. Considered utilization of 
public health pesticides may also protect wildlife, including 
endangered species, from mosquito-borne diseases such as West Nile 
Virus and both Eastern and Western Encephalitis. Further benefits 
include protection of tourism, property values and beef/milk 
production.

    Question 13. In light of EPA's extensive and rigorous program, is 
there any reason to regulate under the Clean Water Act, pesticides that 
EPA has registered under FIFRA, and if so, under what circumstances?
    Answer. We do not believe there are circumstances that would 
require further regulation of pesticides under the Clean Water Act. The 
pesticide registration process fully evaluates potential environmental 
effects.

    Question 14. Would requiring pesticide users to obtain NPDES 
permits under the Clean Water Act before using pesticides increase 
environmental protection?
    Answer. We do not believe it would increase environmental 
protection, and could result in an increase in mortality in many birds 
and animals that are susceptible to mosquito-borne diseases. Crows, 
jays and magpies are very susceptible to West Nile Virus. Raptors such 
as hawks, eagles and owls are also killed in large numbers by this 
disease. Additionally, endangered species such as Sandhill Cranes have 
fallen victim to mosquito-borne encephalitis outbreaks in the past. 
Without effective pesticide applications in a mosquito control program 
we could see sharp reductions of many species of concern.

    Question 15. Are you aware of any credible data showing widespread, 
significant deterioration in water quality in recent years caused by 
pesticides?
    Answer. We are aware of a USGS report that suggested finding 
pesticides in certain waterways, and we know of certain studies in 
California that have shown increased loads of pesticides in certain 
waterways after storm events. An NPDES permit would not address these 
issues as the evidence points to homeowner misapplications and improper 
disposal.

    Question 16. Have public health officials, forestry groups, 
farmers, or other pesticide users raised concerns about being required 
to obtain NPDES permits for pesticide use?
    Answer. All of the mentioned groups are on the record through 
comments on Federal dockets regarding the increased costs and 
duplicative regulations related to obtaining permits for lawful 
pesticide use.

    Question 17. Has EPA ever required users to obtain NPDES permits 
before applying agricultural pesticides?
    Answer. We are not aware of any NPDES permit requirements for 
agricultural pesticide use prior to the 6th Circuit decision.

    Question 18. Is the policy articulated in the Discussion Draft Bill 
consistent with the position EPA takes in its rulemaking on NPDES 
permits and pesticides?
    Answer. We believe the draft bill is fully consistent with the 
EPA's rulemaking relative to NPDES permits and pesticides.
Mosquito Control
    Question 19. Are public health pesticide programs, such as mosquito 
control programs exempt from the 6th Circuit decision?
    Answer. Public health pesticide programs are not exempt from the 
6th Circuit decision and will be required to apply for and comply with 
NPDES permitting programs at either the state or Federal level.

    Question 20. Do pesticide applications aimed at protecting public 
health such as mosquito control programs aimed at minimizing the risk 
of West Nile Virus fall within the universe of applications that will 
be subject to the permit requirement?
    Answer. Yes.

    Question 21. If the court order goes into affect on April 9th as 
currently anticipated, the fine for non-compliance is $37,500 per day. 
Are mosquito control programs subject to EPA enforcement action?
    Answer. If a mosquito control program is not in compliance with an 
NPDES permit after April 9th they may be subject to enforcement action 
and up to $37,500 per day fines and/or incarceration, depending upon 
the nature of the offense.

    Question 22. If the Federal or state agency fails to enforce for 
noncompliance with the permit requirement, are citizens free to file 
suit against applicators?
    Answer. Yes, and mosquito control districts would be subject to 
civil penalties and attorney fees from these citizen suits. Such 
penalties, court costs and legal fees could far exceed EPA fines.

    Question 23. If the agency were to announce the issuance of a 
general permit tomorrow, would there continue to be operational 
problems related to this issue for your members?
    Answer. Yes. Allocating resources to comply with a permit that are 
normally used to control and survey for mosquitoes would hamper normal 
operations and result in an increase in mosquitoes and mosquito-borne 
diseases. In addition, this permit and those issued by the states would 
be subject to legal challenge that could result in continued 
uncertainty and confusion.

    Question 24. Do any of your members treat Federal lands, such as 
national parks, and if so, does this issue have any potential impact on 
those areas?
    Answer. Yes. It is unclear, however, just what impacts permits 
developed in other states would have on pesticide applications 
performed on Federal lands, particularly Federal lands overlapping 
state lines. Absent a codified Service policy on mosquito control 
applications on refuges and other Federal lands, impacts of the NPDES 
permitting system in these jurisdictions will be an area of acute 
concern for mosquito control programs.

    Question 25. Can't you simply avoid this whole issue by simply not 
treating for mosquitoes in, over or near water?
    Answer. No. Mosquitoes complete their full lifecycle on both 
terrestrial and aquatic sites. Larval mosquitoes are found in aquatic 
sites, including waters of the U.S. Adult mosquitoes lay eggs on or 
around areas that may include waters of the U.S. and may aggregate in 
such areas. Effective mosquito control includes pesticide applications 
in, over or near water. Adulticides, are often applied over water, but 
deposition of the minute particles is precluded by drift downwind on 
air currents to the target areas well beyond the water body.

    Question 26. Do you think the issuance of an NPDES permit will have 
any substantive impact on enhancing mosquito treatment operations?
    Answer. No. In fact, allocating tax payer dollars to comply with 
the permit will take away scarce resources normally used to conduct 
mosquito surveillance and prompt and effective control.

    Question 27. Could you expand on the methods typically employed by 
mosquito districts in their control programs?
    Answer. Mosquito control programs use an integrated approach to 
control mosquitoes in the communities they serve. These methods, or 
Integrated Mosquito Management (IMM) use a variety of surveillance 
measures to identify what and where the problem is, and then based on 
available resources, employ an integrated approach to address the 
problem. The methods used consist of physical, biological, or targeted 
use of pesticides to reduce mosquito populations. The methods used are 
largely dependent on the sites where the mosquitoes are found and the 
available resources to employ them.

    Question 28. Are mosquito levels creating a public health risk for 
West Nile Virus or other vector-borne infectious diseases?
    Answer. West Nile Virus is still found throughout the continental 
United States, and Dengue fever has been found recently in parts of 
Florida. An increase in mosquito levels could result in an increase of 
these potentially fatal diseases being transmitted to local residents. 
Malaria, although rarely transmitted in the United States nowadays, was 
historically prevalent, with 125,000 cases being transmitted as late as 
1935. The mosquito species which transmitted these cases are still 
plentiful in the United States. Several thousand imported cases each 
year are reported to the Centers for Disease Control and Prevention. 
Without mosquito control, these cases could serve as the source of 
future outbreaks.

    Question 29. How would mosquito control districts' efforts be 
constrained if they were required to obtain NPDES permits before being 
able to treat for mosquitoes?
    Answer. Resources normally allocated to perform IMM would be 
diverted to comply with the provisions of NPDES permits. California 
mosquito control districts have estimated it will take $1 million to 
comply with a permit. This figure exceeds many of the mosquito control 
districts' operating budgets.

    Question 30. West Nile Virus has become quite a problem around the 
nation. Has the West Nile Virus rate decreased since you began to more 
aggressively treat for adult mosquitoes?
    Answer. Yes. One must remember, though, that due to ethical 
considerations, it is extremely difficult to design studies to 
determine efficacy and document decreased disease incidence from spray 
operations. Nonetheless, the prevalence of West Nile Virus has been 
reduced in areas where targeted mosquito control has reduced mosquito 
populations. North Sacramento County documented significant reductions 
in mosquito trap counts and elimination of West Nile Virus cases after 
aggressive control measures were applied in 2005.
    Empirical observations and retrospective risk analysis conducted by 
Michigan State University suggest that citizens living outside of 
mosquito control jurisdictions in Michigan during the 2002 West Nile 
Virus outbreak had a tenfold increased risk of WNV infection compared 
to people living inside of these jurisdictions. WNV infection rates in 
vector mosquito populations within mosquito control jurisdictions were 
approximately 7.8 times lower compared to populations outside of these 
jurisdictions.

    Question 31. How common is the misapplication of pesticides in the 
control of mosquitoes?
    Answer. While it cannot be guaranteed that absolutely no 
misapplications have occurred, the focus on compliance with labeling 
makes this a very uncommon event. We are not aware of enforcement 
actions that have been initiated by state or Federal regulators for 
pesticide applications made by mosquito abatement districts. Mosquito 
control professionals take great pride in ensuring that pesticides, 
when needed, are applied using technology that ensures effective 
targeting, dosage, and droplet spectrum--applied by individuals trained 
and certified in their use. GPS/GIS-monitored spray routes and spray 
output, droplet analysis, equipment calibration, comprehensive 
equipment maintenance schedules, and continuing education requirements 
are integral facets of any effective mosquito abatement program and are 
strongly endorsed by all members of the American Mosquito Control 
Association (AMCA). This comprehensive effort is designed to not only 
minimize misapplication, but to ensure that there is a sufficient 
margin of error should human fallibility intervene.

    Question 32. We understand that there are several hundred state and 
local mosquito control programs around the country, and that each year 
these programs conduct several hundred thousand ground and aerial 
applications of chemical and biological pesticides to control and 
manage mosquitoes. Are those numbers approximately correct?
    Answer. Yes. We have identified 734 mosquito abatement districts in 
the United States in addition to 1,105 smaller control agencies 
affiliated with municipalities. Each makes public health pesticide 
applications within their jurisdictions in accordance with locally 
established intervention thresholds--the number and type of 
applications are driven by local conditions. Mosquito larviciding, in 
particular, can encompass several thousand applications to water 
sources, storm drains, etc., per each entity annually.

    Question 33. How would your association members secure NPDES 
permits to cover this many applications? Can you describe specific 
concerns that need to be taken into account in securing NPDES permits 
for all of these applications?
    Answer. Given the broad range of authority states have with 
implementing NPDES permits, it is unclear just how AMCA members will be 
able to comply.

    Question 34. What types of pesticides are typically used to control 
mosquitoes? Are most of the larvicide and adulticide pesticides used to 
control mosquitoes ``biological'' or ``chemical'' in nature?
    Answer. A wide range of pesticide classes are utilized where and 
when deemed appropriate by competent authority. ``Biological Controls'' 
are most often used in larviciding, as they are inappropriate for adult 
mosquito control. These controls consist of various species of bacteria 
that produce toxins in the gut of specific target species. In some 
cases, certain species of small, top-feeding fish can be used to reduce 
larval populations. Certain chemicals specifically engineered to 
exploit either behavioral or physiological vulnerabilities in the 
mosquito larvae are also used when appropriate.
    It should be noted that there is no inherent benefit to utilizing 
biological controls over chemical controls except where the situation 
dictates. Environmental impacts from chemical controls tend to be short 
term and defined in area by design. Nontarget effects are transitory, 
with populations of aquatic nontargets rebounding rapidly after initial 
impact. Biological controls such as predators and/or habitat 
modification, on the other hand, produce far more profound and lasting 
effects.

    Question 35. Why are adulticides used to control mosquitoes, 
instead of just larvicides?
    Answer. It is impossible to apply enough larvicides to each larval 
habitat throughout a mosquito season to prevent all mosquito adults 
from emerging. In addition to the sheer number of potential oviposition 
sites to be treated, timing of the applications is critical and will 
vary substantially with season, rainfall and mosquito species. 
Furthermore, there will also be continual migration in from outlying 
areas. Areas encompassing Federal lands often forbid any mosquito 
larvicidal control applications. This will ultimately result in 
adulticiding being required to control the mosquitoes originating from 
these untreated areas.
    In many cases, districts must follow strictly enforced treatment 
algorithms dictated by the state that preclude larviciding until 
disease becomes manifest through bird/mosquito surveillance or human 
cases. During the intervening incubation period, adult mosquitoes are 
hatching out unimpeded. Once disease case is diagnosed, these 
potentially infective adult mosquitoes require control, as larviciding 
success becomes moot at this point.

    Question 36. How is mosquito control handled (if at all) in 
localities where there are no Mosquito Control Agencies?
    Answer. In the absence of organized on-site control programs, 
jurisdictions that require control efforts turn to contract applicators 
or pest control operators with the equipment/expertise to institute 
control methods. These are stop-gap measures and are rarely 
sustainable. In addition, when there is an infestation that individual 
homeowners find intolerable, they frequently treat their property 
themselves. These applications are not as carefully controlled as those 
conducted by professionals, and pesticide doses applied can be 64 times 
the dose used by professionals.

Questions Submitted by Hon. Bob Gibbs, a Representative in Congress 
        from Ohio
    Question 1. Does anything in the pesticide general permit or the 
Clean Water Act protect pest applicators not subject to the permit from 
a citizen suit under the Act--for example, applications to land on 
farms?
    Answer. As mentioned earlier, we believe other pesticide 
applicators, such as those involved in certain agricultural 
applications may be subject to citizen suits even though the current 
permit does not cover those applications.

    Question 2. If Congress does not act by April 9th, and the 
necessary permits are not in place in the states, what will be your 
likely course of action?
    Answer. It is unclear just what each mosquito control district will 
do if there is no permit in place in all states by April 9th. Mosquito 
control agencies take their public mandate to protect public health 
seriously, and many agencies will likely still try to perform their 
public mandate . . . until they receive 60 day notices of intention to 
sue under the Clean Water Act. It is believed most Districts will halt 
operations at that time. The April 9 deadline is especially unfortunate 
because it comes at the beginning of the mosquito season in many parts 
of the country. This is particularly poor timing for the mosquito 
control agencies, having to deal with potential legal delays while also 
addressing rising mosquito populations.

    Question 3 What burden, if any, does obtaining an additional, 
completely duplicative permit create for your programs?
    Answer. Any unnecessary expenditures for permit compliance will 
needlessly divert resources from current operations. This will result 
in a reduction in control measures and an increase in mosquitoes and 
mosquito-borne diseases. Besides the burden of additional 
administrative paperwork, CWA permits could result in costly monitoring 
requirements.

Questions Submitted by Hon. Joe Baca, a Representative in Congress from 
        California
    Question 1. Would EPA's pesticide general permit, if finalized in 
its current form require pesticide applicators to apply products 
differently than the FIFRA-Registered label?
    Answer. There would be no difference. FIFRA-registered labels 
provide a range of application rates with which applicators must 
comply. The EPA's pesticide general permit would not change this 
requirement. In addition, the proposed general permit mandates control 
decision algorithms based on integrated mosquito management principles 
that are already being practiced by mosquito control entities.

    Question 2. Does the proposed pesticide general permit limit or 
require reductions in the numbers or volume of a pesticide applied?
    Answer. The proposed pesticide general permit suggests utilization 
of control methodologies that may result in reductions in volumes in 
pesticides applied, but may compromise strategies to prevent virus 
amplification in avians through early season adulticiding. This could 
result in higher environmental loading by districts forced to address 
virus-positive mosquito populations later in the season.
    In general, the idea that federally mandated reductions in volume 
of pesticide applied would automatically result in benefits is flawed. 
If too low a dose is applied, for instance, the result can be a failed 
treatment. Treatment failure can, in turn, result in the need to use 
even more pesticide to deal with the failure as a pest problem spreads 
and worsens. A failed treatment can also impact public health by 
failing to control infected vectors and allowing disease transmission 
to continue. Chronic application of too low a dose, in an attempt to 
meet CWA permit mandates, can also result in pesticide resistance and a 
long term need to use a higher dose to get the same control level.
    Applicators already conduct cost-benefit analyses to determine the 
most efficient method for managing mosquito populations as part of 
their jurisdictional charters. Indeed, the rationale for requiring 
reductions under a permit system assumes that applicators accountable 
to the taxpayers and/or contracting authorities would apply expensive 
pesticides without regard to budgetary considerations or professional 
standards. The cost of pesticides alone would preclude their use at 
label rates beyond that needed. CWA permitting is not the proper 
vehicle to control pesticide dose; this is already addressed under 
FIFRA and the user community.

    Question 3. Mr. Baca: So, if the permit is a permit to discharge a 
pesticide that is already regulated under the FIFRA label, isn't the 
permit really a paperwork exercise?
    Answer. We believe the permit is an unnecessary paperwork burden 
regarding pesticide applications that are already fully and 
successfully regulated under FIFRA. The permit will not result in 
environmental protections beyond those already afforded under FIFRA and 
standard mosquito control techniques. However, the permit requirement 
is more than a paper exercise in the sense that CWA permitting exposes 
users to citizen lawsuits under that Act. The concern is not merely 
that more paperwork will be required; CWA permitting carries 
significant legal risks to applicators attempting to operate under its 
jurisdiction.

    Question 4. Can you identify a concrete actual environmental 
benefit that will be gained from requiring an NPDES permit?
    Answer. We cannot. While some people would suggest that eliminating 
pesticide applications would be an environmental benefit, we would 
argue that the resulting increase in mosquito populations, with the 
attendant additional pestiferous and disease burden in both humans and 
wildlife would actually be detrimental to the environment. In fact, 
failure to control mosquitoes in and around water due to CWA strictures 
could result in more pesticide use in upland areas as the mosquitoes 
fly out and infest populated areas. Aquatic areas are the source of 
mosquito problems, and they are best controlled at the source. 
Infestations that could be easily controlled by treating a few acres of 
wetland could turn into swarms that fly out and infest hundreds of 
acres of upland. Controlling the problem after that happens could 
easily require more pesticide than if the problem were controlled at 
the source. Such a result is likely and clearly not beneficial to the 
environment.

Response from Hon. John Salazar, Commissioner, Colorado Department of 
        Agriculture; on Behalf of National Association of State 
        Departments of Agriculture

Questions Submitted by Hon. Jean Schmidt, a Representative in Congress 
        from Ohio
    Question 1. You were each presented with a copy of the draft 
legislation. The bill was drafted with the help of EPA to ensure that 
it would be consistent with the agency's final regulation issued on 
November 27th, 2006. Do any of you have an opinion or position on the 
draft legislation?
    Answer. NASDA strongly supports a legislative fix. Congress must 
act quickly. NASDA continues to review the draft and engage our state 
legal experts. We believe the draft goes a long way to alleviating the 
problems caused by the 6th Circuit and we look forward to working with 
you to make sure we fix this problem.

    Question 2. We have found an excerpt from House Report 92-511 
accompanying the 1971 amendments to FIFRA in which the Congress states:

        ``. . . but it is essential to the public health and welfare 
        that [pesticides] be regulated closely to prevent adverse 
        effects on human life and the environment, including pollution 
        of interstate and navigable waters, . . . and that regulation . 
        . . as contemplated by this Act are appropriate to . . . 
        protect the . . . environment.''

    Given that FIFRA was being amended at the same time the CWA was 
being enacted, does anyone on the panel disagree that Congress intended 
that pesticide applications in or near navigable waters be regulated 
under FIFRA, and not the Clean Water Act?
    Answer. It is clear Congress intended for FIFRA to be the 
controlling statute in regards to pesticide applications in or near 
navigable waters.

    Question 3. If this legislation is not enacted, which pesticide 
applicators will be required to have an NPDES permit?
    Answer. The permit in some states will extend to ``waters of the 
state'' which in many cases are more expansive that waters covered 
under the Federal Clean Water Act. This is the case in Colorado, where 
ditches, whether dry or flowing, will be included. This obviously 
greatly expands the universe of those impacted and our permit would 
likely include: municipalities, counties, mosquito control programs, 
and even farmers and ranchers with ditches on their property.

Questions Submitted by Hon. Bob Gibbs, a Representative in Congress 
        from Ohio
    Question 1. Does anything in the pesticide general permit or the 
Clean Water Act protect pest applicators not subject to the permit from 
a citizen suit under the Act--for example, applications to land on 
farms?
    Answer. This is one of our biggest concerns. By extending the reach 
of the Clean Water Act's NPDES permitting requirements to these 
pesticide applications, the Court has exposed a very large universe of 
pesticide users to citizen suits.

    Question 2. If Congress does not act by April 9th, and the 
necessary permits are not in place in the states, what will be your 
likely course of action?
    Answer. If EPA or a state's general permit has not been finalized 
prior to April 9, pesticide applicators would face significant legal 
vulnerabilities under the Clean Water Act and all applicators--large 
and small--would be required to obtain an individual NPDES permit. 
However, it is important to emphasize that obtaining an individual 
permit can be very expensive to applicants and processing the numbers 
of individual permits would likely cripple state agencies. Furthermore, 
in Colorado our partners in the Department of Public Health and 
Environment tell us that it takes about 18 months to issue individual 
permits so even trying to obtain coverage is not an option for this and 
possibly next year's application season. Because of this, as detailed 
in my testimony, it is likely a significant number of pesticide 
applications that are vital to public health, water availability and 
the economic vitality of our rural communities would simply not be 
made. Additionally, we would be unable to combat emergency pest 
situations, again, significantly impacting public health and the 
economy.

Questions Submitted by Hon. Joe Baca, a Representative in Congress from 
        California
    Question 1. How important are pesticide applications in protecting 
your state?
    Answer. Pesticide applications are vital for vector control 
programs. West Nile Virus killed 63 Coloradans in 2003. Annual deaths 
from West Nile Virus have been kept under 7 per year following our 
implementation of pesticide-based control programs. Colorado depends on 
pesticides to treat our forests for Mountain Pine Beatles and to keep 
our waterways clear of vegetation. If untreated, our forests would 
become even more devastated and vegetation in our waterways could 
deprive farmers and downstream states of much-needed water. In 
addition, agricultural producers depend on pesticides to protect crops 
from economically devastating pests. This is particularly true in 
combatting emergency pest situations that must be dealt with swiftly in 
order to protect public health and the economy.

    Question 2. Would EPA's pesticide general permit, if finalized in 
its current form require pesticide applicators to apply products 
differently than the FIFRA-Registered label?
    Answer. EPA's draft general permit does not prescribe for pesticide 
products a different manner of application from the FIFRA-registered 
label. Instead, it creates an additional layer of paperwork 
requirements that are duplicative and provide no additional 
environmental benefits that are not already taken into account through 
the FIFRA registration and re-registration processes. All the permit 
really does is create unnecessary burdens on states and applicators, 
while injecting significant confusion and uncertainty among permitting 
agencies and applicators.

    Question 3. Does the proposed pesticide general permit limit or 
require reductions in the numbers or volume of a pesticide applied?
    Answer. The permit does not outline specific reductions or limits 
on pesticide applications (in contrast, FIFRA-registered labels do). 
However, the permit does include language that, because of its 
vagueness, could create confusion and uncertainty among applicators. We 
are concerned this uncertainty would inadvertently constrain 
applicators from being able to make appropriate, judicious and legal 
pesticide applications when needed.

    Question 4. So, if the permit is a permit to discharge a pesticide 
that is already regulated under the FIFRA label, isn't the permit 
really a paperwork exercise?
    Answer. Yes. A duplicative and expensive one that diverts much-
needed state resources. It is important to note that this is in 
conflict with the Clean Water Act itself, which states, ``the 
procedures utilized for implementing this Act shall encourage the 
drastic minimization of paperwork and interagency decision procedures, 
and the best use of available manpower and funds, so as to prevent 
needless duplication and unnecessary delays at all levels of the 
government.'' (Sec. 101(f). [33 U.S.C 1251, 2008])

    Question 5. Can you identify a concrete actual environmental 
benefit that will be gained from requiring an NPDES permit?
    Answer. No. In fact, there could actually be adverse environmental 
consequences: Waterways could become clogged with vegetation, depriving 
farmers and downstream states of much-needed water; pests could 
devastate forest canopies, raising temperatures of streams and 
impairing waterways; and invasive pests and noxious weeds could spread 
significantly.
    Submitted Report by Hon. Timothy H. Bishop, a Representative in 
                         Congress from New York

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