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


 
                        AT RISK: AMERICAN JOBS, 
                        AGRICULTURE, HEALTH AND 
                     SPECIES--THE COSTS OF FEDERAL 
                        REGULATORY DYSFUNCTION 

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

                        JOINT OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                             joint with the

                        COMMITTEE ON AGRICULTURE
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                          Tuesday, May 3, 2011

                               __________

            Committee on Natural Resources Serial No. 112-26

               Committee on Agriculture Serial No. 112-13

                               __________

       Printed for the use of the Committee on Natural Resources

         Available via the World Wide Web: http://www.fdsys.gov
                                   or
         Committee address: http://resourcescommittee.house.gov


                               ----------
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66-204 PDF                       WASHINGTON : 2011 

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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann, 
    TN
Jon Runyan, NJ
Bill Johnson, OH

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                

                        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




















                               CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, May 3, 2011.............................     1

Statement of Members:
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     6
        Prepared statement of....................................     7
    Lucas, Hon. Frank D., a Representative in Congress from the 
      State of Oklahoma..........................................     1
        Prepared statement of....................................     3
    Markey, Hon. Edward J., a Representative in Congress from the 
      State of Massachusetts.....................................     8
        Prepared statement of....................................     9
    Peterson, Hon. Collin C., a Representative in Congress from 
      the State of Minnesota.....................................     4
        Prepared statement of....................................     5
    Rivera, Hon. David, a U.S. Representative in Congress from 
      the State of Florida, Statement submitted for the record...   163

Statement of Witnesses:
    Beehler, Angela, District Manager, Benton County Mosquito 
      Control District #1, West Richland, Washington.............    97
        Prepared statement of....................................    98
        Response to questions submitted for the record...........   102
    Bradbury, Dr. Steven, Director, Office of Pesticide Programs, 
      U.S. Environmental Protection Agency.......................    52
        Prepared statement of....................................    53
        Response to questions submitted for the record...........    23
    Bushue, Barry, President, Oregon Farm Bureau, and Vice 
      President, American Farm Bureau Federation.................   109
        Prepared statement of....................................   111
        Response to questions submitted for the record...........   114
    Edwards, Debra, Ph.D., Senior Managing Scientist, Exponent 
      Engineer and Scientific Consulting.........................   117
        Prepared statement of....................................   118
        Response to questions submitted for the record...........   120
    Glauber, Dr. Joseph, Chief Economist, U.S. Department of 
      Agriculture................................................    11
        Prepared statement of....................................    12
        Response to questions submitted for the record...........    23
    Gould, Dr. Rowan, Acting Director, Fish and Wildlife Service, 
      U.S. Department of the Interior............................    60
        Prepared statement of....................................    61
        Response to questions submitted for the record...........    23
    Grader, W.F. ``Zeke,'' Jr., Executive Director, Pacific Coast 
      Federation of Fishermen's Associations.....................   134
        Prepared statement of....................................   135
    Mathison, West, President, Stemilt Growers, LLC, and Board 
      President, Washington State Horticultural Association......   124
        Prepared statement of....................................   125
        Response to questions submitted for the record...........   129
    Newhouse, Dan, Director, Washington State Department of 
      Agriculture................................................   129
        Prepared statement of....................................   131
    Schwaab, Eric, Assistant Administrator, National Marine 
      Fisheries Service, National Oceanic and Atmospheric 
      Administration, U.S. Department of Commerce................    63
        Prepared statement of....................................    65
        Response to questions submitted for the record...........    23
?

Additional materials supplied:
    Flores, Hon. Bill, a Representative in Congress from the 
      State of Texas, Letter to Secretary of the Interior Ken 
      Salazar submitted for the record...........................   153
    List of documents retained in the Committee's official files.   153
    Map entitled ``Number of Species in CBD v. EPA (2011) and 
      Percent Cultivated Crops per County''......................   154
    Map entitled ``Number of Species in CBD v. EPA (2011) and 
      Percent Forest Land per County''...........................   154
    Napolitano, Hon. Grace F., a Representative in Congress from 
      the State of California, Charts on ``California Waters 
      Impaired by Pesticides'' submitted for the record..........   155
    Sablan, Hon. Gregorio Kilili Camacho, a Delegate in Congress 
      from the Commonwealth of the Northern Mariana Islands. 
      Letter to Hon. Doc Hastings, Hon. Edward J. Markey, et al., 
      submitted for the record...................................   164





                                  (VI)
                                     


 
JOINT OVERSIGHT HEARING ENTITLED ``AT RISK: AMERICAN JOBS, AGRICULTURE, 
   HEALTH AND SPECIES--THE COSTS OF FEDERAL REGULATORY DYSFUNCTION.''

                              ----------                              


                          Tuesday, May 3, 2011

                     U.S. House of Representatives

             Committee on Natural Resources, joint with the

                        Committee on Agriculture

                            Washington, D.C.

                              ----------                              

    The Committees met, pursuant to call, at 10:03 a.m. in Room 
1324, Longworth House Office Building, Hon. Doc Hastings and 
Hon. Frank D. Lucas, presiding.
    Present from the Committee on Natural Resources: 
Representatives Hastings, Bishop, Lamborn, Fleming, McClintock, 
Thompson, Rivera, Tipton, Labrador, Noem, Southerland, Flores, 
Harris, Fleischmann, Markey, Kildee, DeFazio, Napolitano, Holt, 
Grijalva, Bordallo, Costa, Sablan, Garamendi, and Hanabusa.
    Present from the Committee on Agriculture: Representatives 
Lucas, Johnson, Neugebauer, Conaway, Schmidt, Thompson, Gibbs, 
Austin Scott of Georgia, Crawford, Huelskamp, DesJarlais, 
Ellmers, Gibson, Hultgren, Hartzler, Schilling, Peterson, 
McIntyre, Cardoza, David Scott of Georgia, Schrader, Fudge, and 
McGovern.
    The Chairman. The Committee will come to order. The 
Committee is holding this oversight hearing today jointly with 
the Committee on Agriculture to hear testimony on ``At Risk: 
American Jobs, Agriculture, Health and Species--The Cost of 
Federal Regulatory Dysfunction.''
    Under Committee Rule 4(f), any oral opening statements are 
limited to the Chairman and Ranking Member of the respective 
committees. This will obviously allow us to hear more from our 
witnesses.
    However, any Member that wants to have his speech in the 
record can do so, and I ask unanimous consent that that be the 
case. With no objection, so ordered.
    At this time, I would now like to recognize and welcome to 
the House Natural Resources Committee hearing room my colleague 
from Oklahoma, the distinguished Chairman of the Agriculture 
Committee for his opening statement and remarks. And with that, 
I recognize the gentleman from Oklahoma.

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

    Mr. Lucas. Thank you Chairman Hastings and Ranking Member 
Markey for working with Ranking Member Peterson and me on this 
important topic.
    Though joint hearings represent a logistical challenge, the 
interactions and contradictions between the laws in the 
programs under our various jurisdictions suggest that effective 
oversight will require more cooperation between committees in 
the future.
    Recently, the Agriculture Committee engaged in a joint 
oversight process with the Committee on Transportation and 
Infrastructure that led to the successful passage of bipartisan 
legislation in the House which would eliminate a costly, 
burdensome, and duplicative regulatory process for pesticides.
    While we wait for movement of the bill in the Senate, we 
now turn our attention to another costly and burdensome 
regulatory process that is both duplicative and dysfunctional.
    In the process of reviewing individual pesticides under the 
Federal Insecticide, Fungicide, and Rodenticide Act, the EPA 
assesses more than 120 scientific studies evaluating the 
product safety and effectiveness.
    Pesticides distributed in the United States must be 
evaluated and registered by the EPA based on scientific data 
showing they will not cause unreasonable risks to human health, 
workers, or the environment when used as directed on the EPA-
approved product label.
    As defined in the statute, the term ``unreasonable adverse 
effects on the environment'' includes any unreasonable risk to 
man or the environment, taking into account economic, social, 
and environmental costs and benefits of the use of any 
pesticide.
    Once a pesticide is registered, the Federal review process 
does not end. In fact, the law mandates a process of 
registration review. The registration review program makes sure 
that as the ability to assess risks evolves and policies and 
practices change, all registered pesticides continue to meet 
the statutory standard of no unreasonable adverse effects.
    Despite having a rigorous science-based process in place to 
register and periodically review pesticides, provisions of the 
Endangered Species Act, ESA, require that the EPA consult with 
the Fish and Wildlife Service or the National Marine Fisheries 
Service, which I will refer to as ``Services,'' whenever there 
is any possibility, however remote, that the use of the 
pesticide could adversely affect, threaten or endanger species. 
Although no credible evidence has been presented documenting a 
causal link between the registration of a pesticide and the 
decline of any listed species populations or rates of recovery, 
this scientific evidence has done nothing to impede the 
environmental extremists.
    Groups like the Center for Biological Diversity have been 
clogging our courtrooms with frivolous lawsuits that have cost 
taxpayers tens of millions of dollars in litigation costs and 
have further congested an already dysfunctional Federal 
bureaucracy. Consultation is a process meant to facilitate 
understanding among and between agencies.
    Unfortunately, the consultation process under the ESA is 
heavily biased toward the European model of a precautionary 
principle. Should any expert agency ignore the opinion of one 
of the Services, they risk civil and criminal penalties in the 
event of the loss of a single plant or animal from a listed 
species.
    Counter to the intent of consultation, the Services have 
administered a process where they ignore scientific evidence 
presented by expert agencies. They refuse to consider or even 
accept public comment. And, in some cases, they simply ignore 
the request by EPA for a consultation. Recently, the Services 
have acknowledged that the scientific models they have used to 
develop their biological opinions for pesticides are fatally 
flawed. Thankfully, a request has been made by USDA, EPA, 
Interior, and Commerce to have the National Academy of Sciences 
conduct a review of the models used by the Services.
    I am hopeful and would expect confirmation from each of the 
Federal agencies here today that the scope of the work that is 
contracted will be a comprehensive review, not only of the 
scientific models used by the Services, but also the models 
used to analyze the economic impact of any suggested 
alternatives.
    Of further concern, the fact that while waiting for the 
completion of the scientific peer review, EPA is still being 
asked to implement the recently finalized biological opinions, 
which the agency has repeatedly and publically challenged. 
Given the admission of the fundamental flaws in the Services' 
models, I would suggest that the Services consider seeking 
reinitiation of consultation when scientific models have been 
developed, validated, and agreed upon.
    One final note, prior to this hearing Chairman Hastings and 
I received a letter from the four departments suggesting that 
due to concerns over pending litigation, they would be unable 
to answer many of the questions the Committee would be raising.
    I would like to make it clear that while I recognize 
certain questions regarding pending litigation are sensitive, 
congressional oversight is equally as important and I hope the 
panelists will be as responsive as possible. I will tell you 
now that just because a question may be difficult or may cause 
some degree of embarrassment for the bureaucracy does not mean 
that the question should be off limits to congressional 
oversight.
    I look forward to a cooperative dialogue with all of our 
witnesses today and am now happy to yield to my Ranking Member, 
the gentleman from Minnesota, Mr. Peterson, for his opening 
statement.
    [The prepared statement of Chairman Lucas follows:]

         Statement of The Honorable Frank D. Lucas, Chairman, 
                        Committee on Agriculture

    Thank you Chairman Hastings and Ranking Member Markey for working 
with Ranking Member Peterson and me on this important topic.
    Though joint hearings represent a logistical challenge, the 
interactions and contradictions between the laws and programs under our 
various jurisdictions suggest that effective oversight will require 
more cooperation between committees in the future.
    Recently, the Agriculture Committee engaged in a joint oversight 
process with the Committee on Transportation and Infrastructure that 
led to the successful passage of bipartisan legislation in the House 
which would eliminate a costly, burdensome and duplicative regulatory 
process for pesticides. While we wait for movement of the bill in the 
Senate, we now turn our attention to another costly and burdensome 
regulatory process that is both duplicative and dysfunctional.
    In the process of reviewing individual pesticides under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), the EPA assesses 
more than 120 scientific studies evaluating the products' safety and 
effectiveness. Pesticides distributed and sold in the United States 
must be evaluated and registered by the EPA based on scientific data 
showing that they will not cause unreasonable risks to human health, 
workers, or the environment when used as directed on the EPA approved 
product label.
    As defined in the statute, the term ``unreasonable adverse effects 
on the environment'' includes any unreasonable risk to man or the 
environment, taking into account the economic, social, and 
environmental costs and benefits of the use of any pesticide.
    Once a pesticide is registered, the federal review process does not 
end. In fact, the law mandates a process of registration review. The 
registration review program makes sure that, as the ability to assess 
risk evolves and as policies and practices change, all registered 
pesticides continue to meet the statutory standard of no unreasonable 
adverse effects.
    Despite having a rigorous, science-based process in place to 
register and periodically review pesticides, provisions of the 
Endangered Species Act (ESA) require that the EPA ``consult'' with the 
Fish and Wildlife Service or the National Marine Fisheries Service 
(collectively, the Services), whenever there is any possibility, 
however remote, that the use of the pesticide could adversely affect a 
threatened or endangered species.
    Though no credible evidence has been presented documenting a causal 
link between the registration of a pesticide and the decline of any 
listed species populations or rates of recovery, this lack of 
scientific evidence has done nothing to impede environmental 
extremists. Groups like the Center for Biological Diversity have been 
clogging our court rooms with frivolous lawsuits that have cost 
taxpayers tens of millions of dollars in litigation costs and have 
further congested an already dysfunctional federal bureaucracy.
    Consultation is a process meant to facilitate understanding among 
and between agencies. Unfortunately, the consultation process under the 
ESA is heavily biased towards the European model of a Precautionary 
Principal. Should any expert agency ignore the opinion of one of the 
Services, they risk civil and criminal penalties in the event of the 
loss of a single plant or animal from a listed species.
    Counter to the intent of consultation, the Services have 
administered a process where they ignore scientific evidence presented 
by the expert agencies. They refuse to consider or even accept public 
comment, and in some cases they have simply ignored requests by EPA for 
a consultation.
    Recently, the Services have acknowledged that the scientific models 
they have used in developing their biological opinions for pesticides 
are fatally flawed. Thankfully, a request has been made by USDA, EPA, 
Interior and Commerce to have the National Academy of Sciences conduct 
a review of the models used by the Services. I am hopeful--and would 
expect confirmation from each of the Federal agencies here today--that 
the scope of the work that is contracted will be a comprehensive review 
of not only the scientific models used by the Services, but also of the 
models used to analyze the economic impacts of any suggested 
alternatives.
    Of further concern is the fact that while waiting for the 
completion of this scientific peer review, EPA is still being asked to 
implement the recently finalized biological opinions which the agency 
has repeatedly and publicly challenged. Given the admission of 
fundamental flaws in the Services models, I would suggest that the 
Services consider seeking re-initiation of consultation when scientific 
models have been developed, validated, and agreed upon.
    One final note. . .Prior to this hearing, Chairman Hastings and I 
received a letter from the four departments suggesting that due to 
concerns over pending litigation, they would be unable to answer many 
of the questions the Committees would be raising. I would like to make 
clear that while I recognize certain questions regarding pending 
litigation are sensitive, Congressional oversight is equally as 
important and I hope the panelists will be as responsive as possible. I 
will tell you now that just because a question may be difficult, or may 
cause some degree of embarrassment for the bureaucracy, it does not 
mean that the question should be off limits to Congressional oversight.
    I look forward to a cooperative dialogue with all of our witnesses 
today and am now happy to yield to my Ranking Member, Representative 
Peterson for his opening statement.
                                 ______
                                 

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

    Mr. Peterson. Thank you, Mr. Chairman and good morning 
everybody. Thank you and Mr. Hastings for holding this hearing.
    Today we are reviewing pesticide registration consultations 
under the Endangered Species Act as they are carried out 
between the EPA and either of the Services, as Mr. Lucas 
characterized them. Unfortunately, several opinions coming from 
the National Marine Fisheries Service failed to respond to and 
incorporate concerns voiced by EPA.
    It is important for these agencies to work collaboratively 
in reaching conclusions on complex issues such as the one we 
are dealing with this morning. And while it is not unusual to 
see different agencies reaching different opinions, it is 
unusual for reasonable people not to understand how those 
conclusions are reached.
    When the agencies fail to be transparent and fail to base 
their conclusions on the best available science, the decision 
is often left in the hands of the courts, leaving those outside 
of agriculture to make a ruling. This should not be the case. 
We need someone to step up and resolve these issues and perhaps 
this is something that Congress should address.
    This hearing comes as we are beginning to see the potential 
effects of these differences of opinion can have. The 
questionable environmental data used in assessing potential 
harm to endangered species has producers in the Pacific 
Northwest and California, facing a potential, unprecedented 
restriction on the use of pesticide products labeled and 
registered by the EPA and this restriction could conceivably 
affect the rest of the country.
    Many in agriculture have expressed concern about the lack 
of transparency, lack of state and stakeholder participation, 
use of less than best available science and the lack of an 
economic impact assessment on the restrictions contemplated by 
the National Marine Fisheries Service. I share those concerns, 
so I am looking forward to hearing from today's witnesses on 
these issues.
    And again, I want to thank the Chairs for holding today's 
hearing.
    [The prepared statement of Mr. Peterson follows:]

    Statement of The Honorable Collin C. Peterson, Ranking Member, 
                        Committee on Agriculture

    Good morning. Thank you Chairman Lucas and Chairman Hastings for 
holding today's hearing.
    Today we are reviewing pesticide registration consultations under 
the Endangered Species Act as they are carried out between the 
Environmental Protection Agency and either the National Marine 
Fisheries Services or the Fish and Wildlife Service.
    Unfortunately, several opinions coming from the National Marine 
Fisheries Service fail to respond to and incorporate concerns voiced by 
the EPA.
    It's important for these agencies to work collaboratively in 
reaching conclusions on complex issues such as the one we are dealing 
with this morning. While it is not unusual to see different agencies 
reaching differing opinions, it is unusual for reasonable people not to 
understand how those conclusions are reached. When the agencies fail to 
be transparent and fail to base their conclusions on the best available 
science, the decision is often left in the hands of the courts, leaving 
those outside of agriculture to make a ruling. This should not be the 
case. We need someone to step up and resolve these issues. Perhaps this 
is something that Congress should address.
    This hearing comes as we're beginning to see the potential effects 
these differences of opinion could have.
    The questionable environmental data used in assessing potential 
harm to endangered species has producers in the Pacific Northwest and 
California facing a potential unprecedented restriction on the use of 
pesticide products labeled and registered by the EPA. This restriction 
could conceivably affect the rest of the country.
    Many in agriculture have expressed concern about the lack of 
transparency, a lack of state and stakeholder participation, use of 
less than best available science and the lack of an economic impact 
assessment on the restrictions contemplated by the National Marine 
Fisheries Service. I share those concerns.
    I am looking forward to hearing from today's witnesses on these 
issues. Again, I thank the Chairs for holding today's hearing.
                                 ______
                                 
    Mr. Lucas. The gentleman yields back. The Chair now turns 
to the Chairman of the Committee on Natural Resources, Chairman 
Hastings, for his opening statement.

 STATEMENT OF HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    The Chairman. Thank you very much, Mr. Chairman.
    Earlier this year, President Obama signed Executive Order 
12866, which seeks to reform Federal regulations to ensure that 
they, and I quote, ``protect public health, welfare, safety, 
and our environment while promoting economic growth, 
innovation, competitiveness, and job creation.''
    The Executive Order further notes regulations, and I quote 
again, ``must be based on the best available science,'' ``must 
allow for public participation and an open exchange of ideas,'' 
and ``must promote predictability and reduce uncertainty.''
    I couldn't agree more with these goals. Regrettably, the 
Executive Order is completely disconnected from the 
Administration's own actions arising out of its dual regulatory 
responsibility of Federal pest control registration and safety 
and the Endangered Species Act.
    Farmers, forest managers, and other resource industries 
that provide water, food, fiber, and energy are caught in the 
middle of Federal bureaucratic dysfunction. This situation 
discourages economic growth and jobs, and encourages lawsuits.
    For the past 20 years, the National Marine Fisheries 
Service and the U.S. Fish and Wildlife Service have received 
hundreds of millions of dollars annually to implement and 
enforce Federal regulatory activities involving ESA-listed 
species. Today's oversight hearing will focus on ESA Section 7 
consultations and more specifically NMFS and Fish and Wildlife 
Service biological opinions for Federally registered crop 
protection and other pest control products.
    Over the past 20 years, NMFS has listed 28 populations of 
salmon as endangered in the Pacific Northwest and California. 
These salmon have thrived amidst one of the most productive 
agriculture areas in the nation. Washington State alone 
produces nearly $10 billion annually in fruit, wheat, grain, 
potatoes and other exported commodities. NMFS's own 2010 report 
to Congress touted stable or increasing trends for two-thirds 
of the listed salmon populations.
    Washington experienced record runs with salmon fisheries 
opening up in some areas for the first time in years, yet NMFS 
concluded in its biological opinions, beginning in 2008, that 
all 28 populations of salmon would be jeopardized by continued 
use of pesticides long registered and labeled by the EPA. 
NMFS's questionable requirements included nearly a quarter-mile 
buffer zone around water bodies that would affect as much as 60 
percent of agriculture lands in Washington State alone.
    Implementation of these measures, as written, would 
literally force farmers out of business, cripple the food 
production capacity in the Northwest, and potentially the rest 
of the nation. Ironically, the head of the EPA office with 
authority and responsibility for scientific review of hundreds 
of pesticides, certainly no lightweight in environmental 
regulation, found over 14 significant flaws in NMFS's 
biological opinions.
    State agriculture agencies have raised concerns that NMFS 
not only failed to utilize their available data information, 
but refused to allow any transparent process to receive, 
review, and revise draft opinions to ensure the best available 
science. Fish and Wildlife, the agency with jurisdiction over 
most of the endangered species, is not immune from concerns. 
Correspondence between EPA and Fish and Wildlife reveals a lack 
of cooperation between the two agencies on a process involving 
nearly four dozen incomplete pesticide consultations two years 
after they were originally submitted.
    The Administration responded recently by sending a vaguely 
worded request for the National Academy of Sciences to review 
NMFS and EPA's confusing and conflicting regulations--perhaps 
the most candid acknowledgment of the agency's flawed science. 
Instead, unless they are stopped, the interim, uncertain 
policies will result in even more lawsuits that threaten 
economic growth.
    A recent suit filed by the Center for Biological Diversity 
seeks to eliminate 380 pesticides used in 49 states. Americans 
expect and deserve better from their government. So I look 
forward to hearing from representatives of these Federal 
agencies, the State of Washington, and Northwest growers. I 
very much appreciate Chairman Lucas and the House Agriculture 
Committee joining us in this hearing to provide oversight on 
this very important topic.
    And with that, I recognize the gentleman from Massachusetts 
for his opening statement.
    [The prepared statement of Chairman Hastings follows:]

          Statement of The Honorable Doc Hastings, Chairman, 
                     Committee on Natural Resources

    Earlier this year, President Obama signed Executive Order 12866, 
seeking to reform federal regulations to ensure that they ``protect 
public health, welfare, safety, and our environment while promoting 
economic growth, innovation, competitiveness, and job creation.''
    The executive order further notes regulations ``must be based on 
the best available science,'' ``must allow for public participation and 
an open exchange of ideas,'' and ``must promote predictability and 
reduce uncertainty.''
    I couldn't agree more with these goals. Regrettably, the executive 
order is completely disconnected from the Administration's own actions 
arising out of its dual regulatory responsibilities of federal pest 
control registration and safety and the Endangered Species Act.
    Farmers, forest managers and other resource industries that provide 
food, water, fiber and energy are caught in the middle of federal 
bureaucratic dysfunction. This situation discourages economic growth 
and jobs, and encourages lawsuits.
    For the past 20 years, the National Marine Fisheries Service and 
the U.S. Fish and Wildlife Service have received hundreds of millions 
of dollars annually to implement and enforce federal regulatory 
activity involving ESA-listed species.
    Today's oversight hearing will focus on ESA section 7 
consultations, and more specifically, NMFS and the FWS' biological 
opinions for federally-registered crop protection and other pest 
control products.
    Over the past 20 years, NMFS has listed 28 populations of salmon as 
endangered in the Pacific Northwest and California. These salmon have 
thrived amidst one of the most productive agricultural areas of the 
nation. Washington produces nearly $10 billion annually in fruit, 
wheat, grain, potatoes, and other exported commodities, which fuels 
thousands of jobs.
    NMFS' own 2010 Report to Congress touted stable or increasing 
trends for two-thirds of the listed salmon populations. Washington 
experienced record runs, with salmon fisheries opening in some areas 
for the first time in years.
    Yet, NMFS, concluded in biological opinions beginning in 2008 that 
all 28 populations of salmon would be jeopardized by continued use of 
pesticides long registered and labeled by the Environmental Protection 
Agency. NMFS' questionable requirements included nearly a quarter mile 
buffer around water bodies that would affect as much as 60 percent of 
agricultural lands in Washington State alone.
    Implementation of these measures as written would literally force 
farmers out of business, devastate rural communities and cripple the 
food production capacity of the Northwest and potentially the rest of 
the nation.
    Ironically, the head of the EPA office with authority and 
responsibility for scientific review of hundreds of pesticides--
certainly no lightweight on environmental regulation--found over 14 
significant flaws in NMFS' biological opinions.
    State agriculture agencies have raised concerns that NMFS not only 
failed to utilize their available data and information, but refused to 
allow any transparent process to receive, review and revise draft 
opinions to ensure the best available science.
    FWS, the agency with jurisdiction over the most endangered species, 
is not immune from concerns. Correspondence between EPA and FWS reveals 
a lack of cooperation between the two agencies on a process involving 
nearly four dozen incomplete pesticide consultations--two years after 
they initially were submitted to FWS for review.
    The Administration responded recently by sending a vaguely-worded 
request for the National Academy of Sciences to review NMFS and EPA's 
confusing and conflicting regulations--perhaps the most candid 
acknowledgment of the agencies' flawed science.
    Instead, unless they are stopped, the interim, uncertain policy 
will result in even more lawsuits and threats to economic growth and 
jobs nationwide. A recent suit filed by the Center for Biological 
Diversity seeks to eliminate 380 pesticides used in 49 states. 
Americans expect--and deserve--better from their government.
    I look forward to hearing from representatives of the federal 
agencies, the State of Washington, and Northwest growers, and I 
appreciate Chairman Lucas and the House Agriculture Committee's joining 
in this hearing to provide needed oversight on this important topic.
                                 ______
                                 

    STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF MASSACHUSETTS

    Mr. Markey. Thank you, Mr. Chairman and welcome Chairman 
Lucas and Ranking Member Peterson.
    With the opening of the Pacific Coast salmon fishing 
season, I am looking forward to sitting down to my first king 
salmon steak dinner of the season. As we all know, the key to 
salmon is in the balance. Don't cook it too long or it will dry 
out. Don't oversalt the fish or you will lose the sweetness.
    The same kind of balance must be struck when we regulate 
pesticides. We call it Iron Chef Washington edition and the 
special ingredient is Federal oversight. Just like salt, when 
properly used pesticides can help aid the production of 
agriculture crops. And just like salt, when used 
indiscriminately or in too large a quantity, it can render a 
meal or an entire fish population inedible.
    As the regulatory chefs, we must serve up the right balance 
between producing food and protecting endangered species--
fisheries, water supplies, and human health. We must ensure 
that the Federal Government works in harmony to ensure a safe, 
abundant food supply while producing our natural resources.
    According to the United States Geological Survey, 90 
percent of America's surface streams and rivers contain 
measurable amounts of multiple pesticides. High levels of 
pesticides in our waters harm our commercial fisheries and 
impair the recovery of endangered salmon throughout the West. 
Fully restoring salmon populations in the Northwest alone would 
add over $5 billion a year to the regional economy and would 
revitalize the commercial and recreational fisheries in the 
region.
    The human health impacts from pesticides exposure are also 
severely disconcerting. In addition to decades of laboratory 
animal studies that have linked many pesticides to various 
adverse health outcomes, just last week three independent, 
public health studies were released which found that mothers 
who are exposed to frequently used pesticides, including the 
ones being discussed today, give birth to children who have 
poorer memory and lower IQ scores than their peers by the time 
they have reached school age. We cannot afford to ignore these 
negative impacts.
    While I understand that ongoing litigation makes it 
difficult for the Federal agencies present to respond to 
specific questions relating to these pending cases, I look 
forward to discussing more generally how the EPA's registration 
process for pesticides can incorporate the protective standards 
of the Endangered Species Act. We must ensure that the Federal 
agencies work together to provide the full level of 
environmental protection that our endangered species 
desperately need.
    It is important to remember that the consultation process 
required under the Endangered Species Act is a vital part of 
every Federal agencies' obligation to preserve the existence of 
endangered species. Streamlining a regulatory process does not 
require a race to the bottom on environmental protections. We 
should not and do not need to operate at the lowest common 
denominator of protection when it comes to issues as important 
as health and human safety, water quality, and endangered 
species.
    Instead, we must first ensure that the EPA, the National 
Marine Fisheries Service, and the Fish and Wildlife Service 
have the resources they need to complete their endangered 
species consultations in a timely manner. Second, we should 
support efforts to ensure that the best, most up-to-date 
scientific information is utilized by the agencies when 
consultations occur.
    Finally, we should ensure that the consultation process is 
transparent to the public, allowing for full stakeholder 
participation. Because of the multiple environmental impacts, 
including pesticides, three years ago the West Coast salmon 
fishery experienced a closure that was unprecedented in 
magnitude and duration. This closure rippled up and down the 
coast, decimating livelihoods and communities that depend on 
this natural resource.
    With that, I would like to thank the witnesses for being 
here today and I look forward to learning more about these 
issues. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Markey follows:]

     Statement of The Honorable Edward J. Markey, Ranking Member, 
                     Committee on Natural Resources

    Thank you Chairman Hastings.
    With the opening of the Pacific coast salmon fishing season, I am, 
looking forward to sitting down to my first king salmon steak dinner of 
the season.
    As we all know, the key to salmon is in the balance. Don't cook it 
too long, or it will dry out. Don't oversalt the fish, or you'll lose 
the sweetness.
    The same kind of balance must be struck when we regulate 
pesticides.
    We'll call it Iron Chef: Washington Edition. And the special 
ingredient is federal oversight.
    Just like salt, when properly used pesticides can help aide the 
production of agricultural crops.
    And just like salt, when used indiscriminately, or in too large a 
quantity, it can render a meal, or an entire fish population, inedible.
    As the regulatory chefs, we must serve up the right balance between 
producing food and protecting endangered species, fisheries, water 
supplies and human health.
    We must ensure that the federal government works in harmony to 
ensure a safe, abundant food supply while protecting our natural 
resources.
    According to the United States Geological Survey, ninety percent of 
America's surface streams and rivers contain measureable amounts of 
multiple pesticides. High levels of pesticides in our waters harm our 
commercial fisheries and impair the recovery of endangered salmon 
throughout the West. Fully restoring salmon populations in the 
Northwest alone would add over five billion dollars a year to the 
regional economy and would revitalize the commercial and recreational 
fisheries in the region.
    The human health impacts from pesticide exposure are also severely 
disconcerting. In addition to decades of laboratory animal studies that 
have linked many pesticides to various adverse health outcomes, just 
last week, three independent public health studies were released, which 
found that mothers who are exposed to frequently used pesticides, 
including the ones being discussed today, gave birth to children who 
have poorer memory and lower I.Q. scores than their peers by the time 
they reached school age.
    We cannot afford to ignore these negative impacts. While I 
understand that ongoing litigation makes it difficult for the federal 
agencies present today to respond to specific questions related to 
these pending cases, I look forward to discussing more generally how 
the EPA's registration process for pesticides can incorporate the 
protective standards of the Endangered Species Act. We must ensure that 
the federal agencies work together to provide the full level of 
environmental protection that our endangered species desperately need.
    It is important to remember that the consultation process required 
under the Endangered Species Act is a vital part of every federal 
agency's obligation to preserve the existence of endangered species. 
Streamlining a regulatory process does not require a ``race to the 
bottom'' on environmental protections. We should not, and do not, need 
to operate at the lowest common denominator of protection when it comes 
to issues as important as human health, water quality, and endangered 
species.
    Instead, we should first ensure that the EPA, the National Marine 
Fisheries Service, and the Fish and Wildlife Service have the resources 
they need to complete their endangered species consultations in a 
timely manner. Second, we should support efforts to ensure that the 
best, most up-to-date scientific information is utilized by the 
agencies when consultations occur. Finally, we should ensure that the 
consultation process is transparent to the public, allowing for full 
stakeholder participation.
    Because of multiple environmental impacts, including pesticides, 
three years ago, the west coast salmon fishery experienced a closure 
that was unprecedented in magnitude and duration. This closure rippled 
up and down the coast decimating livelihoods and communities that 
depend on this natural resource.
    With that, I would like to thank the witnesses for being here today 
and look forward to learning more about these issues.
                                 ______
                                 
    The Chairman. I thank the gentleman from Massachusetts.
    I note, and have been advised, not surprisingly, that there 
are a number of people who want to listen to this hearing. We 
do have an overflow hearing room down the hall, 1334. So 
anybody that is standing up and wants to have a little bit more 
comfortable area, you are certainly welcome to go down the hall 
to 1334, if that would work out for you.
    At this time, I would like to recognize again the Chairman 
of the Agriculture Committee, Mr. Lucas, to introduce the first 
panel. Mr. Lucas.
    Mr. Lucas. Thank you, Chairman Hastings. We would like to 
welcome to this joint hearing today our first panel, Dr. Joseph 
Glauber, Chief Economist, United States Department of 
Agriculture; Dr. Steven Bradbury, Director, Office of Pesticide 
Programs, U.S. Environmental Protection Agency; Mr. Rowan 
Gould, Acting Director of the U.S. Fish and Wildlife Service; 
and Mr. Eric Schwaab, Assistant Administrator of the National 
Marine Fisheries Service, National Oceanic and Atmospheric 
Administration.
    And I would yield to the Chairman.
    The Chairman. I just want to point out that in front of 
you, you have the five-minute clock and your full statement 
will appear in the record, so that will be part of the record. 
But we do ask that, as you can see the interest here, that your 
oral statement be only five minutes if you can do that. We try 
to adhere to that. And in fact, we are trying to come up with 
some prize for any witnesses that do it in five minutes or 
less. So I just want to remind you that your full statement 
will appear in the record.
    So I thank the gentleman for yielding to allow me to make 
that statement on how we run our Committee here, and I am sure 
your Committee does exactly the same thing. So I yield back to 
the gentleman from Oklahoma.
    Mr. Lucas. Thank you, Mr. Chairman. And the Chair now 
recognizes Dr. Glauber.

    STATEMENT OF DR. JOSEPH GLAUBER, CHIEF ECONOMIST, U.S. 
                   DEPARTMENT OF AGRICULTURE

    Dr. Glauber. Thanks very much Chairman Hastings, Chairman 
Lucas, Ranking Members Markey and Peterson and members of the 
Committees. Thank you for the opportunity to testify on the 
effects of the Endangered Species Act consultation process for 
pesticides on agriculture.
    In my written testimony, I focus on how this process 
affects agriculture stakeholders, including America's farmers, 
ranchers, forest owners, and registrants of crop protection 
tools and on some of the tools and capabilities USDA brings to 
improve the science behind pesticide registration and 
consultation stakeholder outreach and to assist farmers and 
ranchers.
    As you are aware, pesticides are important inputs for 
American farmers. The introduction of pesticides and 
fertilizers along with the development of improved seed 
varieties have contributed to much of the productivity gains 
that we have witnesses in agriculture over the last 60 years.
    Pesticides have enabled crop producers to manage insects, 
diseases in weeds, to prevent crop yield or quality losses 
while reducing labor and tillage cost for pest control. Over 
900,000 farmers reported using pesticides in 2007. And USDA's 
economic research service forecasted farm pesticide 
expenditures this year will approach $12 billion. Almost 77 
percent of these farms reported using chemicals to control 
weeds, grass, or brush on more than 226 million acres in 2007 
and about 40 percent of farms reporting pesticide use applied 
in insecticides on more than 90 million acres. About 10 percent 
of farms using pesticides for controlling diseases in crops and 
orchards are on more than 12 million acres.
    The USDA also values mosquito-control chemicals as these 
insecticides are important for the protection of livestock as 
well as rural populations. USDA's veterinary services must have 
such insecticides available for quarantine use in the event of 
a large-scale outbreak such as Rift Valley Fever.
    Last, pesticide use is important for international trade. 
The mere presence of quarantine pest in agricultural 
commodities can disrupt exports and international trade. The 
international community has long recognized the potential poor 
effects resulting from certain pests, diseases and weeds by 
prohibiting the importation of quarantine pests.
    The U.S. is able to export many agriculture products 
because pesticides are used to eradicate pests like medflies. 
Systems approaches in conjunction with chemical pest control 
are used by the U.S. and its trading partners. For example, 
exports of apples to Taiwan rely upon a systems approach that 
includes use of chemical controls for codling moths.
    In my testimony, I give extensive coverage to an analysis 
that we were asked to prepare back in 2003, which was 
associated to look at the potential impacts to agriculture to 
the proposed no-spray buffers requested as injunctive relief in 
the Washington toxic case.
    In the analysis, we analyze the effects of no-spray buffers 
affecting 54 pesticide active ingredients. These active 
ingredients were subject to an injunctive order imposing the 
20-yard no-spray buffer for ground spraying around salmon-
bearing waters and 100-yard no-spray buffer for aerial 
application.
    The analysis assumed that land in the buffers would be 
retired and thus would provide no return. I might add this is a 
fairly consistent assumption with how it has been treated by 
the Services themselves in some of their analyses.
    The short version is that the analysis predicted losses in 
gross revenue, ranging from $37 million to $583 million, 
depending upon the no-spray buffers were applied to perennial 
as well as intermittent water bodies and whether the pesticide 
applications were usually accomplished using aerial or ground 
spraying.
    The written testimony goes through in much more detail 
here. I think the important thing to point out is we are 
looking at the BiOps for salmon is buffer strips would 
potentially extended up to 1,000 feet for some active 
ingredients in some affected areas. And depending on final 
determination, the impact could thus be larger than what we 
estimate. And again, a lot of this depends much on what 
mitigation measures are possible and how easy it is to 
substitute other acceptable pesticides or control systems.
    Again, my written testimony covers a lot of potential 
mitigation effects offered by the USDA, such as the 
Conservation Reserve Program, buffer strips, and Environmental 
Quality Incentives Program (EQIP). Many of these, of course, 
Chairman Lucas you are well aware of and Congressman Peterson 
that we talk every day in the Ag Committee.
    I would just conclude that our Office of Pest Management 
Policy at USDA works extensively with the Services, both in 
looking at measures and alternatives helping the Services and 
EPA with understanding the effects of pesticides on agriculture 
and the potential uses of alternatives and integrated pest 
management schemes.
    With that, let me conclude and I will be happy to take any 
questions.
    [The prepared statement of Dr. Glauber follows:]

             Statement of Joseph Glauber, Chief Economist, 
                     U.S. Department of Agriculture

    Chairman Hastings and Chairman Lucas, Ranking Members Markey and 
Peterson, and members of the Committees, thank you for the opportunity 
to testify on the effects of the Endangered Species Act (ESA) 
consultation process for pesticides on agriculture. I will focus my 
remarks on how this process affects agricultural stakeholders, 
including America's farmers, ranchers, forest owners, and registrants 
of crop protection tools, and on some of the tools and capabilities 
USDA brings to improve the science behind pesticide registration and 
consultation, stakeholder outreach, and to assist farmers and ranchers.
    The U.S. Department of Agriculture's (USDA) interest in the 
biological opinions and resulting label changes from the ESA and the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
consultation process is multi-fold. FIFRA sets out a number of 
responsibilities for the Secretary of Agriculture under the law in 
areas that include research and monitoring, identification of pests, 
and review of cancellation actions. USDA agencies, such as the Forest 
Service, which manages 193 million acres of National Forests and 
Grassland under sustainability and multiple use principles, use 
pesticides at times to deal with invasive species, noxious weeds, and 
to manage utility rights of way. In addition, USDA conducts pest 
control programs to suppress or eradicate pests or diseases on public 
and private lands to safeguard plant and animal health. USDA consults 
with the National Marine Fisheries Service (NMFS) or the United States 
Fish and Wildlife Services (FWS) to ensure our federal actions are 
properly protective of endangered species and their habitats. Examples 
include consultation on large-scale control programs such as 
grasshopper suppression (Animal and Plant Health Inspection Service) in 
the western states and insecticide treatment of seed orchards (Forest 
Service).
    USDA's Office of Pest Management Policy (OPMP) provides USDA input 
to the Environmental Protection Agency (EPA) actions on pesticides and 
risk mitigation plans, including information for EPA on agricultural 
use of pesticides during registration review; coordinates the 
collection of information for EPA on pest management strategies 
employed by growers, including the growers' need for certain pesticide 
products during registration review; and provides reviews and estimated 
effects on agriculture of various EPA policies and pesticide 
registration notices (drift reduction notice, worker protection 
standards, fumigant buffers). OPMP coordinates the development and 
implementation of integrated pest management strategies and other 
economically and environmentally sound pest management tools and 
practices.
    Private land use and agricultural production often involves use of 
pesticides. Thus, USDA has a vital interest in sound regulation of 
pesticide use that ensures USDA can fulfill its mission of ensuring an 
abundant, affordable, and safe food supply and a healthy farm and rural 
economy while ensuring protection of the environment and threatened and 
endangered species.
Agricultural Use of Pesticides
    The introduction of pesticides and fertilizers, along with the 
development of improved seed varieties, has contributed to much of the 
productivity gains that we have witnessed in US agriculture over the 
past 60 years. Pesticides have enabled crop producers to manage 
insects, diseases, and weeds and to prevent crop yield or quality 
losses while reducing labor and tillage costs for pest control 
(Fernandez-Cornejo et al. 2009).
    While agricultural pesticide expenditures have grown dramatically 
over the past 60 years, applications as measured by pounds of active 
ingredient have fallen. The Economic Research Service forecasts that 
farm pesticide expenditures will top $11.9 billion in 2011, a record 
high in nominal terms and the third highest level adjusting for 
inflation (figure 1). However, only 480 million pounds of pesticide 
active ingredients were used in 2007 in agricultural production in the 
United States (Fernandez-Cornejo and Jans 2009) down from 579 million 
pounds of active ingredients used in 1997 (table 1).
    The growth in the use of herbicides like glyphosate has occurred in 
conjunction with adoption of no-till practices and bio-tech crops with 
herbicide resistant traits (Fernandez-Cornejo and Caswell 2006). No-
till agriculture reduces energy use, sequesters carbon helping to 
control greenhouse gas emissions, and helps control erosion, with the 
technique using herbicides rather mechanical means to deal with weeds.
    Pesticide use varies widely by location and by crop. Herbicide use 
by producers of spring-planted row crop like corn, soybeans, cotton and 
spring wheats is quite high--typically over 95 percent of the area is 
treated (table 2). Insecticides are widely used by cotton producers and 
many fruit and vegetable producers. Fruits and vegetable producers also 
tend to be large users of both insecticides and fungicides.
    The 2007 Census of Agriculture data reports that over 900 thousand 
out of 2.2 million total farm operations used pesticides in 2007 (table 
3). Almost 77 percent of these farms reported using chemicals to 
control weeds, grass or brush on more than 226 million acres in 2007. 
About 40 percent of farms reporting pesticide use applied insecticides 
on more than 90 million acres. About 10 percent of farms using 
pesticides were controlling diseases in crops and orchards on more than 
12 million acres.
    USDA also values mosquito control chemicals as these insecticides 
are important for the protection of livestock as well as the rural 
population. USDA Veterinary Services must have such insecticides 
available for quarantine use in the event of a large scale outbreak, 
such as Rift Valley Fever. The Agricultural Research Service carries 
out extensive research in collaboration with DOD and the IR-4 Program 
and the OPMP has assisted the American Mosquito Control Association 
(American Mosquito Control) on the reregistration and registration 
review of mosquito control chemicals.
    Lastly, pesticide use is important for international trade. The 
mere presence of a quarantine pest in an agricultural commodity can 
disrupt exports and international trade. The international community 
has long recognized the potential deleterious effects resulting from 
certain pests, diseases and weeds by prohibiting the importation of 
quarantine pests. The United States is able to export many agricultural 
products because pesticides are used to eradicate pests like medflies. 
Systems approaches in conjunction with chemical pest control are used 
by the United States and its trading partners. For example, exports of 
apples to Taiwan rely upon a systems approach that includes use of 
chemical controls for codling moths.
Economic Consequences Resulting from Biological Opinions
    As a result of the 2002 order in Washington Toxics Coalition v. 
EPA, EPA initiated consultation on its authorization of 37 pesticide 
active ingredients and the effects on listed Pacific salmonids under 
NMFS' jurisdiction and associated designated critical habitats in the 
states of California, Idaho, Oregon, and Washington. Consequently, 
under these Biological Opinions (BiOps), the affected area encompasses 
some freshwater, estuarine, marsh, swamps, nearshore, and offshore 
marine surface waters of California, Oregon, and Washington. The action 
area also includes some freshwater surface waters in Idaho.
    The NMFS BiOps for listed salmonids identify reasonable and prudent 
measures that if followed, afford farmers protection from the penalties 
associated with the prohibition on incidentally taking a listed species 
under the ESA. EPA would then enact these measures through pesticide 
labels and informing the public through Endangered Species Protection 
Program Bulletins. Three BiOps have been issued and a fourth is due to 
be issued by June 30, 2011 covering 18 of the 37 pesticides requiring 
consultation (on salmonids) as a result of the Washington Toxics case. 
A fourth BiOp covering 6 pesticides has been released. Pesticide 
product label changes recommended by the EPA in response one or more of 
the BiOps include the following elements, which potentially could have 
impacts on farmers:
          Ground and Aerial Application No-Use (or Pesticide 
        Free) Buffers
          Maximum wind speed 10 mph for pesticide spraying
          Prohibit application within 48 hours of a predicted 
        storm event likely to produce runoff or when soil is at field 
        capacity
          Requirement to report all fish kills occurring within 
        four days after application
In addition to the anticipated pesticide label changes, the EPA must 
monitor water quality in off-channel habitats for seven consecutive 
days, three times per year in numerous locations according to a 
monitoring plan to be specified by NMFS.
    These no-application zones adjacent to aquatic features (channels, 
agricultural ditches, and streams, and any channels temporally 
connected to surface waters) vary in size depending on the pesticide 
but range from 25 to 1000 feet for the first six pesticides assessed. 
There are many variables that potentially could factor into any 
analysis of the impacts resulting from these buffers, including the 
crop under cultivation, the cost and efficacy of any alternative 
products available to control the target pest, impacts due to the 
expected market for the crop (domestic or export), increased 
application costs associated with irregular application patterns which 
avoid the buffer, substitute crops that could be grown using other 
pesticides, and substitute uses for the land, such as enrollment in a 
conservation program.
    Total agricultural production in the affected counties in 
California, Idaho, Oregon and Washington totaled $32.5 billion in 2007 
(table 4). Significantly, over 90 percent of the crop value produced in 
Oregon and Washington was in counties affected by the actions. 
Individual crop production figures for each state are given in tables 
5-8.In 2003, the Office of the Chief Economist prepared an analysis of 
the potential impact to agriculture of the proposed no-spray buffers 
requested as injunctive relief in the Washington Toxics Coalition v EPA 
case (U.S. Department of Agriculture 2003). In the analysis prepared 
for the Washington Toxics case, we analyzed the effects of no-spray 
buffers affecting 54 pesticide active ingredients. These active 
ingredients were subject to an injunction order imposing 20 yard no-
spray buffers for ground spraying around salmon bearing waters and 100 
yard no-spray buffers for aerial application. Many of these active 
ingredients are critical to production of the high value fruit, berry, 
vegetable, and tree nut crops produced in Oregon and Washington.
    The analysis assumed that land in buffers would be retired and thus 
would provide no return. This assumption is consistent with how others 
have examined the effects of no-spray buffers (e.g., National Oceanic 
and Atmospheric Administration (NOAA) 2005). The parcels affected by 
the buffers are generally small and irregularly shaped and may not 
warrant cultivation (eg., see figure 2). Livestock may not be a viable 
enterprise in the buffer areas in such a small scale and due to 
environmental concerns about animal impacts on water bodies. Some 
producers may be able to reduce losses by enrolling the buffer lands in 
the Conservation Reserve Program. Loss of export markets due to the 
presence of quarantine pests from untreated areas, such as codling 
moth, was also not examined.
    The analysis predicted losses in gross revenue ranging between $37 
to $583 million, depending upon whether the no-spray buffers were 
applied to perennial as well as intermittent water bodies and whether 
the pesticide application were usually accomplished using aerial or 
ground spraying. Within the Columbia River watershed, it was estimated 
that 85 percent of the economic impacts were concentrated in Washington 
and these are primarily in the orchard and vineyard crops. In Oregon, 
estimated losses were about the same between row crops and orchards. 
Some geographic regions would be disproportionately affected. The 
analysis concluded that regions specializing in apples, pears, stone 
fruits and vineyard would experience greater losses. Orchard crops 
would experience the greatest revenue losses and small grains the 
least. The analysis estimated sector-wide impacts and thus did not 
address impacts on individual farmers. Some individual growers would be 
disproportionately affected from the no-spray buffers, especially where 
their property is adjacent to meandering streams or ditches that 
transect the field.
    The injunction imposed by the Court imposed 20 yard no-spray 
buffers for ground application and 100 yard buffers for aerial 
application until such time that consultation between the EPA and NMFS 
on a particular active ingredient had concluded. Excepted from this no-
spray buffer order were USDA pesticide applications where the USDA 
agency had previously consulted with either NMFS or FWS and was issued 
a BiOp for that use.
    Under the NMFS BiOps for salmonids, buffer strips would be 
potentially extended to up to 1,000 feet for some active ingredients 
and some affected areas. Depending on the final determination, the 
impact could thus potentially be larger than estimated under the 
Washington Toxics injunction order (Washington State Department of 
Agriculture 2010).
Mitigation Efforts
    The Food, Conservation and Energy Act of 2008 (Public Law 110-246) 
offers several programs which may provide financial assistance to 
producers to help mitigate some potential losses. The Conservation 
Reserve Program (CRP) uses contracts with agricultural producers and 
landowners to retire highly erodible and environmentally sensitive 
cropland and pasture from production for 10-15 years. Enrolled land is 
planted with grasses, trees, and other cover, thereby reducing erosion 
and water pollution and providing other environmental benefits.
    Under CRP, farmers and ranchers plant grasses and trees in crop 
fields and along streams or rivers. The plantings reduce soil and 
nutrients from washing into waterways, reduce soil erosion that may 
otherwise contribute to poor air and water quality, and provide 
valuable habitat for wildlife. Plant cover established on the acreage 
accepted into the CRP will reduce nutrient and sediment runoff in 
rivers and streams.
    In addition, the states of Oregon and Washington have established 
Conservation Reserve Enhancement Programs (CREP), which provide 
additional incentives to producers to enroll targeted land to restore 
and improve salmon and steelhead habitat on private land. Practices 
addressing water quality issues include: forested riparian buffers; 
riparian hedgerows, grass filter strips, and wetland enhancement. Land 
enrolled in 10-15 year CREP contracts is removed from production and 
grazing. In return, landowners receive annual rental, incentive, 
maintenance, and cost share payments for establishing one of the CREP 
practices.
    Table 9 shows the cumulative acres enrolled in the CRP (and CREP) 
targeting filter strips and riparian buffers. In the four state region, 
over 50 thousand CRP acres were in filter strips while almost 80 
thousand acres were in riparian buffers. Enrollment has been limited 
due to the fact that CRP (and CREP) rental rates are low relative to 
opportunity costs for irrigated land. (For example, average rental 
rates for irrigated farmland in Yakima County, Washington in 2009 were 
reported by NASS as $148 per acre as compared to an average CRP rental 
rate of $43 per acre and an average CREP rental rate of $108 per acre 
as reported by the Farm Service Agency.) However, this could change as 
pesticide restrictions potentially limit cropping alternatives.
    One of the objectives of the Environmental Quality Incentives 
Program (EQIP) is to promote agricultural production and environmental 
quality as compatible national goals and to optimize environmental 
benefits by assisting producers in complying with local, State, Tribal 
and Federal regulatory requirements. Through the EQIP program, 
producers could receive financial and technical assistance for the 
design and implementation of the buffer areas or filter strips. In some 
cases, producers may receive up to 75% of the cost of installing these 
vegetated areas. Socially disadvantaged producers could receive up to 
90%. While not an annual payment, producers may be able to graze or hay 
these acres allowing for some income to be obtained.
    Producers could also take advantage of the Conservation Stewardship 
Program (CSP). CSP is a voluntary conservation program that encourages 
producers to address resource concerns in a comprehensive manner by 
undertaking additional conservation activities and improving, 
maintaining and managing existing conservation activities. Existing 
activities, such as buffers, grassed waterways, conservation tillage 
and contoured farming already installed or in use, decrease soil 
erosion, improve soil quality and water quality, increase plant and 
animal diversity, and improve air quality. Additional activities, such 
as extending existing buffers, implementing an Integrated Pest 
Management system, or adding a cover crop enhance the benefits already 
flowing from the existing activities. CSP participants receive payments 
tied to estimated benefits associated with the existing and additional 
conservation activities. Generally, payment per legal entity cannot 
exceed $40,000 yearly ($200,000 over five years). For a joint venture 
or general partnership, payment cannot exceed $80,000 yearly ($400,000 
over five years). Federally recognized Indian tribes and Alaskan Native 
corporations are exempt from payment and contract limits.
Summary
    During the past 60 years, U.S. farmers have achieved increases in 
productivity, due, in part, to pesticides. Farmers will face increasing 
challenges due to FIFRA label changes resulting from the ESA 
consultations and subsequent BiOps.
    Historically, USDA agencies have worked closely with NMFS and FWS 
on ESA consultations for individual agency actions, some of which 
involve pesticide application, outside the context of the consultations 
on the registration of pesticides. The USDA's OPMP is responsible for 
working with the EPA Office of Pesticide Programs (OPP) on pesticide 
issues and regularly responds to requests for information on 
agricultural pesticide use and potential pest or disease impacts on 
agricultural production. In recent years, OPMP has engaged in an 
ongoing dialogue with OPP regarding data needed to support their ESA 
consultation packages for pesticide registrations.
    That completes my statement. I would be happy to answer any 
questions.
References
Fernandez-Cornejo, J. and Caswell, M. The First Decade of Genetically 
        Engineered Crops in the United States. U.S. Department of 
        Agriculture, Economic Research Service, Economic Information 
        Bulletin 11, April 2006.
Fernandez-Cornejo, Jorge and Sharon Jans. Pest Management in US 
        Agriculture. US Department of Agriculture, Economic Research 
        Service. Agricultural Handbook No. AH717, October 1999.
Fernandez-Cornejo, Jorge, Richard F. Nehring, Elizabeth Newcomb Sinha, 
        Arthur Grube and Alexandre Vialou. ``Assessing Recent Trends in 
        Pesticide Use in US Agriculture.'' Paper presented at the 2009 
        Annual Meeting of the Agricultural and Applied Economics 
        Association, July 26-28, 2009, Milwaukee, Wisconsin.
National Oceanic and Atmospheric Administration. Final Economic 
        Analysis of Critical Habitat Designation for Seven West Coast 
        Salmon and Steelhead ESUs. August 2005.
U.S. Department of Agriculture. Office of the Chief Economist. 
        ``Economic Impact of Spray Buffers on Agriculture in the 
        Pacific Northwest.'' Mimeo. August 13, 2003.
Washington State Department of Agriculture. ``The Endangered Species 
        Act and the Impacts of Pesticide Registration and Use.'' 
        October 2010.
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    .epsResponse to questions submitted for the record by the U.S. 
Department of Commerce, U.S. Department of Agriculture, U.S. Department 
       of the Interior, and U.S. Environmental Protection Agency

 Hastings/Lucas 1. (NMFS/FWS): Prior to finalizing any of the 
        biological opinions, what input did your agencies receive from 
        state agriculture departments and/or other non-federal experts 
        in developing your conclusions? Did NMFS summarize comments 
        submitted by applicants, States and other stakeholders, 
        including how key points raised were either incorporated or set 
        aside in the biological opinions issued? If so, please provide 
        the Committees with the summaries of comments received and how 
        they were considered. If not, please provide the Committees 
        with relevant documentation supporting the claim that all data 
        and information received was considered.
    Answer: During the comment period for each NMFS biological opinion, 
input from state agencies and/or other non-federal experts was often 
posted to the docket EPA established for the salmonid consultations. 
For the fourth biological opinion, NMFS also received letters, and/or 
participated in meetings with state agencies or non-federal experts. 
NMFS considered all information received on its biological opinions, 
including information from state agencies, and made modifications to 
the opinions as appropriate. Unlike a federal rulemaking, there is no 
formal response to comments requirement for consultations conducted 
under Section 7 of the Endangered Species Act (ESA). Comments received 
are included in our administrative record. In the fourth biological 
opinion, NMFS is providing an explanation of modifications in the final 
opinion based on a specific comment or group of comments received. The 
Fish and Wildlife Service has not developed any recent biological 
opinions that would be relevant to this question.
 Hastings/Lucas 2 (NMFS): On August 19, 2011, EPA requested that NMFS 
        undertake three critical steps relative to population model 
        which the Agency described as the ``cornerstone of the 
        jeopardy/no-jeopardy determinations.'' Specifically, EPA 
        requested that:
        1)  The population model undergo a rigorous sensitivity 
        analysis that identifies inputs that ``drive'' the model and 
        those that have less significance;
        2)  NMFS more fully define the model assumptions and clarify 
        the rationale by which these assumptions were chosen;
        3)  NMFS publically release the model and its code.
 Has NMFS cooperated with these three requests? If so, please provide 
        the Committees with relevant documentation. If not, when does 
        NMFS intend to respond to these requests?
    Answer: The population model used in the first three opinions is 
described in an appendix to each opinion. Following issuance of the 
first biological opinion, the model was published in Ecological 
Applications. (Baldwin, D.B., J.A. Spromberg, T.K. Collier, and N.L. 
Scholz. 2009. A fish of many scales: extrapolating sublethal pesticide 
exposures to the productivity of wild salmon populations. Ecological 
Applications. 19(8): 2004-2015). Assumptions associated with the model 
are described either in the appendix describing the model or in the 
text of the opinion where the model is discussed. Justifications for 
those assumptions are also included in the text. Although the model 
could be recreated in a spreadsheet program from the information 
provided in the appendix, at EPA's request NMFS provided them with the 
code for the version used in the analysis, which is implemented in a 
commercially available program called MatLab. NMFS has also provided 
updated versions of the model to EPA following subsequent opinions, 
reflecting modifications that have resulted from EPA's suggestions. 
Later versions have been modified to address some of EPA's concerns 
regarding the portion of the population exposed. Scientists at NMFS 
Northwest Fisheries Science Center (NWFSC) continue to refine the 
population model, which has been presented and discussed in several 
national and international fora. NMFS and EPA expect continued 
refinements to occur as this work continues, including those relating 
to sensitivity testing of the models.
 Hastings/Lucas 3. (NMFS): Do you consider NOAA Fisheries' current 
        process of developing Biological Opinions with significant 
        impact adequate to allow for broad public participation and 
        solicitation of, and response to comments before biological 
        opinions are finalized?
    Answer: NMFS provides draft biological opinions on pesticides 
registrations to EPA for comment. EPA makes those drafts publicly 
available and solicits public comment. NMFS considers all comments EPA 
receives on the draft biological opinion before finalizing the opinion. 
In addition, NMFS seeks to maintain ongoing communications with the 
applicants throughout the consultation. NMFS has sponsored several 
public meetings to explain to stakeholders the consultation process and 
the analysis in its biological opinion, and it looks forward to 
continuing to explore opportunities for expanded engagements within the 
constraints of existing budgets and court ordered schedules. Finally, 
NMFS has participated in a grower-sponsored workshop to discuss its 
analytical process and agricultural information the grower community 
may be able to provide.
 Hastings/Lucas 4. (NMFS/FWS): Do NMFS and the FWS have separate 
        processes and different science standards to evaluating impacts 
        to endangered species?
    Answer: NMFS and FWS have similar general approaches to conducting 
evaluations of effects on listed species through a shared approach to 
the consultation processes under the ESA, its implementing regulations 
and their ESA Consultation Handbook. While the general standards and 
approaches are similar, the specific methodologies used in each 
specific consultation are determined by the technical and scientific 
aspects of the affected species and their habitats, which of course 
vary widely.
 Hastings/Lucas 5. (EPA): Since the EPA has submitted approximately 170 
        consultation packages to the Services over the last several 
        years, but there has been little effort made by the Services to 
        prepare biological opinions, it seems reasonable to assume that 
        the Services do not consider pesticides to be a significant 
        threat to listed species. Given there is little or no evidence 
        that pesticides are a significant threat to listed species, 
        combined with the fact that over the last two decades pesticide 
        use has declined and older pesticides have been replaced by 
        lower risk products, does EPA believe that the FIFRA risk 
        assessment and regulatory process sufficient to ensure 
        continued protection of listed species?
    Answer: EPA's risk assessment methodology provides a reliable basis 
for evaluating whether use of a pesticide active ingredient has the 
potential to affect adversely the growth, survival or reproductive 
capacity of an individual organism. EPA also considers toxicity data on 
pesticide formulations, and, when such data indicate a potential for 
enhanced toxicity, EPA performs a risk assessment for the product. 
These assessments do not, however, predict how effects on individual 
organisms could affect the overall population in a local area. This 
issue is one of several that EPA, the Services, and USDA have asked the 
National Academy of Sciences (NAS) to address. On the whole, regulatory 
measures for reducing the risks to non-target wildlife generally will 
help to protect listed species. But, because of the uncertainties 
inherent in assessing population level effects on listed species, the 
expertise and views of the Services are key in making such judgments.
 Hastings/Lucas 6. (NMFS/FWS): Under the Counterpart Regulations issued 
        by the Services in 2005 there is a provision that allows EPA to 
        develop its own Biological Opinions for review by the Services. 
        Given the Services' inability to prepare Biological Opinions 
        for over 170 consultations submitted by EPA over the last 
        several years and given that EPA is planning to use the 
        registration review program to become compliant with ESA, which 
        could require up to 70 consultations per year for the next 
        decade, if EPA decides to prepare its own Biological Opinions 
        do I have your commitment to provide EPA the biological 
        information they need on listed species and their habitat and a 
        commitment to review these opinions according in an expedited 
        manner?
    Answer: NMFS and FWS are working with EPA and USDA to engage the 
assistance of the NAS in addressing key issues of science. Once we have 
heard from the NAS, we are committed to working with EPA to develop and 
implement an effective process for completing consultations on 
registration review decisions.
 Hastings/Lucas 7. (NMFS/FWS): Do the Services commit to complying with 
        counterpart regulations with respect to accepting EPA's ESA 
        pesticides submission?
    Answer: NMFS and FWS are working with EPA and USDA to engage the 
assistance of the NAS in addressing key issues of science. Once we have 
heard from the NAS, we are committed to working with EPA to develop and 
implement an effective process for completing consultations on 
registration review decisions.
 Hastings/Lucas 8. (EPA): I understand EPA's pesticide program is 
        trying to develop consultation packages that would contain 
        enough information to support drafting of a Biological Opinion. 
        To do that they need ready access to information on the species 
        they are trying to protect. Have the Services provided EPA with 
        current, accurate location maps of adequate resolution for each 
        listed species in GIS format?
    Answer: NMFS and FWS have and will continue to seek to provide EPA 
with up to date information on the status of the species and their 
habitats, including available mapping information on species location--
budgets and schedules permitting. More specifically, NMFS has provided 
EPA with links to the GIS shapefiles for designated critical habitat of 
listed salmonids, but has not provided specific GIS information on the 
locations of ``off-channel habitat''. EPA and NMFS continue to explore 
opportunities to address refinements in these mapping data to increase 
their accuracy and utility.
 Hastings/Lucas 9. (EPA): Have the Services provided EPA access to a 
        centralized, organized database containing biological 
        information for each listed species for EPA and other federal 
        action agencies to use?
    Answer: The FWS is developing a system called IPAC, which will 
ultimately provide both location and biological information for listed 
species at some point in the future. NMFS does not have a centralized 
database containing biological information for each listed species; 
most of the biological information on listed species known to NMFS is 
posted on its website.
 Hastings/Lucas 10 (NMFS): How does the Service define economic 
        feasibility in terms of development of a Reasonable and Prudent 
        Alternative (RPA)? With regard to the three biological opinions 
        completed, please provide all data, assumptions and a complete 
        description of the methods used to determine economic impact of 
        your proposed RPAs.
    Answer: Reasonable and prudent alternatives (RPAs) must be 
consistent with the intended purpose of the Federal action (in this 
case registration and use of pesticides), and they must be economically 
and technologically feasible. The Services give deference to, and rely 
on, the expertise of the Federal action agency to determine whether a 
particular alternative is economically and technologically feasible for 
it to implement. A traditional cost analysis (or cost/benefit analysis) 
may be conducted by the expert Federal action agency as part of their 
determination of economic feasibility, but such an analysis is not 
required by the ESA to be separately conducted by the Services as part 
of a Section 7 consultation. The Services do not as a general practice 
undertake formal, quantitative assessments of economic and technical 
feasibility.
 Hastings/Lucas 11 (NMFS): Page 4-43 of the Endangered Species 
        Consultation Handbook states, ``When a reasonable and prudent 
        alternative consists of multiple activities, it is imperative 
        that the opinion contain a thorough explanation of how each 
        component of the alternative is essential to avoid jeopardy 
        and/or adverse modification.'' For each of the three salmonid 
        biological opinions completed, please provide the Committees 
        with the sections in the biological opinions where the 
        ``thorough explanation of how each component of the alternative 
        is essential to avoid jeopardy'' can be found.
    Answer: The RPA section of each of the three completed biological 
opinions contains a discussion of the elements of each of the 
Reasonable and Prudent Alternatives. Please see http://
www.nmfs.noaa.gov/pr/consultation/pesticides.htm for further 
information.
 Hastings/Lucas 12. (NMFS): Page 4-43 of the Endangered Species 
        Consultation Handbook states, ``The action agency and the 
        applicant (if any) should be given every opportunity to assist 
        in developing the reasonable and prudent alternatives.'' Please 
        provide a detailed description (including meeting dates) of how 
        applicants were provided opportunities to assist in the 
        development of reasonable and prudent alternatives for each of 
        the three salmonid biological opinions completed.
    Answer: NMFS met with applicants, the pesticide companies holding 
registrations for the pesticides that were the subject of the 
Biological Opinion, for the first biological opinion following release 
of the draft biological opinion. During that meeting in the summer of 
2008, NMFS explained the consultation process, the findings in the 
biological opinion and requested the applicants' assistance in further 
developing the RPA. The applicants advised NMFS that they would not 
contribute to the development of the RPA because, as we understood at 
the time, they disagreed with the premise of the RPA that the proposed 
action would jeopardize the species in the first place. NMFS has met 
with applicants for the second, third and fourth biological opinions at 
the very beginning of consultation to inform applicants of the 
consultation process and to request information pertinent to the 
consultation. NMFS then provided applicants a draft of the description 
of the proposed action for review and comment to ensure that it has 
accurately characterized the labeled uses of each active ingredient. 
NMFS also met with applicants again immediately following issuance of 
the draft biological opinion to EPA. The purpose of those meetings was 
to discuss the opinion and to seek applicants' input into the 
development of the RPA. Following issuance of the second draft 
biological opinion for the fourth consultation, NMFS met again with 
applicants to discuss changes made to the RPA based on comments 
received from applicants.
 Hastings/Lucas 13. (NMFS): According to the joint regulations (51 Fed. 
        Reg. 19926, 19963 (June 3, 1986)), formal consultation is 
        supposed to conclude within 90 days after its initiation unless 
        extended by mutual agreement. In the case of consultations 
        involving ``applicants''--which would include all of the 
        pesticide consultations--the Services and EPA agency can agree 
        to extend the consultation ``provided that the Service submits 
        to the applicant. . .a written statement setting forth: (1) The 
        reasons why a longer period is required, (2) The information 
        that is required to complete the consultation, and (3) The 
        estimated date on which the consultation will be completed. A 
        consultation involving an applicant cannot be extended for more 
        than 60 days without the consent of the applicant.'' You 
        testified that none of the consultations were completed in the 
        requisite time. Were the applicants provided written 
        notification as required by the regulations? If so, please 
        provide copies of the written notifications and documentation 
        of consent for extension of the deadline by the applicants. If 
        not, why were your own regulations not followed?
    Answer: Each of the biological opinions NMFS has issued on 
pesticides registrations have been issued pursuant to a timeline 
established through a Court ordered settlement. No applicants were 
identified by EPA for the first consultation until after the draft 
biological opinion was issued, so NMFS was unable to inform those 
applicants of the schedule for consultation. Following issuance of that 
draft, the applicants requested NMFS seek an extension of the deadline 
for issuing the final biological opinion from the Court. NMFS requested 
and received that extension. The applicants were kept informed of 
deadlines following the extensions. After the first biological opinion, 
EPA contacted prospective applicants on behalf of NMFS several months 
in advance of consultation to inform them of the schedule for the 
consultation and to seek their participation in the consultation 
process. Applicants for the second, third, and fourth consultations 
have all requested that NMFS seek extensions from the Court for each 
consultation. NMFS has sought and received those extensions. The 
applicants were kept informed of the extensions granted and the changes 
in dates for these consultations. If the Committee wishes documentation 
on these specific judicially approved extensions, NMFS is prepared to 
provide it.
 Hastings/Lucas 14. (NMFS): The quality of science that underlies our 
        regulations is vital to the credibility of our Federal agency's 
        decisions and ultimately the effectiveness of regulations 
        protecting human health and the environment. One important way 
        to ensure decisions are based on defensible science is to have 
        an open and transparent peer review process.
  Were any of the biological opinions involving salmonids 
        subject to peer review prior to finalization? [Note: By peer 
        review--as distinct from peer input--the Committees mean a 
        documented critical review of the biological opinions, by 
        qualified individuals (or organizations) who were independent 
        of those who performed the work, and who are collectively 
        equivalent in technical expertise (i.e., peers) to those who 
        performed the original work.] If so, please provide the 
        Committee supporting documentation of the peer review.
    Answer: NMFS regularly seeks scientific reviews of its biological 
opinions which it believes is necessary and appropriate to satisfy the 
``best available scientific and commercial information'' standards of 
the ESA. As the question proposes to define formal external peer 
review, in the instances of these four opinions, NMFS has not sought 
independent formal peer reviews. Rather, the effects section of each 
opinion, which includes the evaluation of toxicity data, fate data, 
other related information, and the conclusions based on those data were 
closely reviewed by toxicologists at NMFS Northwest Fisheries Science 
Center (NWFSC).
 Hastings/Lucas 15. (NMFS): The Final Information Quality Peer Review 
        Bulletin'' (the ``Bulletin'') issued by the Office of 
        Management and Budget (OMB) established government-wide 
        guidance aimed at enhancing the quality and credibility of 
        government science documents practice through the practice of 
        peer review. The Bulletin establishes ``that each agency shall 
        conduct a peer review on all influential scientific information 
        that the agency intends to disseminate.'' Furthermore, the 
        Bulletin states that if a scientific assessment ``is novel, 
        controversial, or precedent-setting or has significant 
        interagency interest,'' the information is considered ``highly 
        influential scientific assessment'' and more rigorous peer 
        review requirements apply. OMB broadened the initial definition 
        of ``highly influence scientific assessment'' to include this 
        ``narrative test'' because a strictly economic test ``may be 
        difficult to apply for many influential scientific assessments 
        whose policy or economic impact is uncertain.'' OMB concluded 
        that for certain assessments, ``the narrative criteria will 
        prove to be more important.''
          On what basis did NMFS exempt the salmonid biological 
        opinions from the requirements of the Bulletin?
          Why were these biological opinions not designated 
        ``highly influential scientific assessments'' based on the 
        narrative test in the definition?
    Answer: NMFS relied on the narrative criteria in determining 
whether the consultations on re-registration of pesticides under the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) constituted 
a `highly influential scientific assessment' under the narrative 
criteria. Only the scientific information in a biological opinion is 
subject to peer review. The scientific information used in these 
consultations came from public sources and published literature. NMFS 
used population and acute toxicity models that represent accepted risk 
analyses and are extensions of existing peer-reviewed models, which 
extrapolate pesticide exposures to the viability of salmonid 
populations.
 Hastings/Lucas 16 (EPA): The preamble to the Services' joint 
        regulations relating to consultations state, ``In no way does 
        the Service intend to use the consultation procedures of 
        section 7 to establish substantive policy for Federal 
        agencies.'' Have the Services challenged EPA to take into 
        account issues beyond what the Agency considered part of a 
        pesticide registration as currently defined by EPA's policies 
        and regulations? If so, please provide the Committees with 
        examples.
    Answer: NOAA's recent biological opinions concerning salmonids in 
the Pacific Northwest and California contain recommended RPAs to avoid 
jeopardy that, if adopted, would involve EPA changing some of its 
existing policies and procedures. For example, the RPAs indicate that 
EPA should undertake significant water monitoring programs, and that 
EPA should direct pesticide users to report incident information to 
EPA. For other consultations, FWS has asked EPA to collect additional 
data and information.
    The Services have also asked EPA to change the ways it assesses the 
risks of pesticide exposure to listed species and their habitats. EPA 
has been working with the Services to address issues they have raised 
and to develop methodologies not currently in EPA's suite of assessment 
tools. EPA has offered a variety of approaches currently outside EPA's 
standard risk assessment methodologies, to address more fully this 
issue. EPA and the Services are continuing to discuss this issue, and 
other key issues. EPA and the Services are hopeful that the NAS review 
will provide useful guidance on these complex topics.
 Hastings/Lucas 17. (EPA): For each lawsuit where a consultation 
        schedule has been set, please provide the Committees with (a) a 
        complete list of products identified in the suit, (b) a listing 
        of species to be considered, (c) a listing of States affected, 
        (d) the estimated ``action area'' in acres, (e) the date EPA's 
        biological assessment was completed, or is estimated to be 
        completed, (f) where relevant, the date of the request to 
        initiate formal consultation.
    Answer: Please see attached PDF file (titled LITIGATION PESTICIDES 
AND SPECIES 6 1 11.pdf) which contains a summary of what species have 
been reviewed for each pesticide active ingredient subject to a 
litigation directed schedule, and information for each lawsuit as 
requested. Please note that the compounds identified in each law suit 
were active ingredients in pesticide products rather than pesticide 
products themselves. Also, EPA has not calculated the acres included in 
the action area for each assessment.
 Hastings/Lucas 18. (EPA): Based on experience to date in developing 
        biological assessments requiring formal consultation for a 
        limited number of species, please estimate EPA monetary 
        resources required to (a) complete a nationwide biological 
        assessment for a typical pesticide under registration review 
        prior to initiation of consultation, and (b) from initiation to 
        completion of formal consultation.
    Answer: Based on our experience to date, EPA estimates the costs of 
a nation-wide assessment and endangered species effects determination 
for one pesticide active ingredient to be 2.3 FTE and $30,000. For 
initiation of consultation to implementation of a biological opinion is 
estimated at 2 FTE of EPA resources with annual, foundational funding 
of $300,000 for our ``Bulletins Live!'' application, independent of the 
number of biological opinions being implemented per year.
 Hastings/Lucas 19. (NMFS): You testified that an interagency workgroup 
        of senior policy leaders were formed to ``craft a multi-faceted 
        strategy to address the challenge.'' On what date was this 
        group formed? When were U.S. Geological Survey (USGS) and the 
        USDA Office of Pest Management Policy invited to join? Please 
        provide the Committees with meeting dates, agendas, 
        participants and outcomes/action items to date. What is the 
        schedule for future meetings?
    Answer: The interagency workgroup of senior policy leaders was 
initially established in December of 2009, and consisted of Dr. Jane 
Lubchenco (NOAA), Mr. Steve Owens (EPA), and Mr. Michael Bean (DOI). 
There is also an interagency group of SES-level managers for these 
agencies that began approximately the same time. An interagency group 
of technical staff from each of the agencies has been meeting to deal 
with technical issues since July 2009. Membership in the senior policy 
level group has shifted some over time, and Dr. Larry Robinson and Mr. 
William Stelle currently represent NOAA. The senior policy group was 
expanded to include USGS and USDA representatives in the fall of 2010. 
This group meets on a somewhat regular basis to discuss issues that 
arise related to these consultations. Most recently the group convened 
several times to develop a framework for the NAS evaluation of the 
coordination between ESA and FIFRA mandates and objectives.
 Hastings/Lucas 20 (NMFS): Several Members asked if NMFS considered the 
        specific economic costs to ``farmers'' and other users of 
        reasonable and prudent alternatives that were included in the 
        salmonid biological opinions. You responded repeatedly that 
        ``costs are factored in discussion with the action agency.'' 
        Please provide documentation of the specific costs identified 
        and/or economic analyses that were completed in support of the 
        reasonable and prudent alternatives that NMFS included in each 
        of the three salmonid biological opinions finalized.
    Answer: Please refer to the answer to Question #10.
 Hastings/Lucas 21. (NMFS/FWS/EPA): In December 2007, EPA and the 
        Services met in Shepherdstown, WV in an attempt to work out 
        differences among the agencies with respect to the consultation 
        process. Please provide the Committees with meeting notes 
        resulting from that meeting.
    Answer: The participants in the December 2007 meeting at 
Shepherdstown, WV, prepared a Power Point presentation that summarized 
the understandings reached at the meeting. The presentation appears in 
the attached file (WV WORKSHOP UNDERSTANDINGS FINAL.pdf).
 Hastings/Lucas 22. (NMFS): In late 2002/early 2003, NMFS drafted a 
        document entitled, ``Guidance for Conducting Literature 
        Searches for Section 7 Consultations.'' Has NMFS finalized this 
        guidance? If so, was the guidance subject to peer review or 
        notice and comment? If not, what criteria does NMFS rely on to 
        include or exclude data or information that appear in published 
        literature? Please provide the Committee with documentation 
        outlining criteria currently used?
    Answer: NMFS has not finalized that guidance. NMFS and FWS issued a 
joint policy in 1994 on Information Standards in the ESA which 
addresses this topic. That policy requires Service biologists to 
evaluate all scientific and other information that will be used to 
prepare biological opinions and incidental take statements. It requires 
biologists:
        a.  To gather and evaluate all scientific and other information 
        that will be used to determine the species' status, develop and 
        implement recovery plans, monitor delisted species and to 
        prepare biological opinions and permits.
        b.  To gather and impartially evaluate biological, ecological, 
        and other information that disputes official positions, 
        decisions, and actions proposed or taken by the Services during 
        their implementation of the Act.
        c.  To the extent consistent with sections 4, 7, and 10 of the 
        ESA, and to the extent consistent with the use of the best 
        scientific and commercial data available, use primary and 
        original sources of information as the basis for 
        recommendations to make a determination of whether a Federal 
        action is likely to jeopardize a proposed, threatened, or 
        endangered species or destroy or adversely modify critical 
        habitat. These sources shall be retained as part of the 
        administrative record supporting an action and shall be 
        referenced in all official Federal Register notices and 
        biological opinions prepared for an action.
        d.  To collect, evaluate, and complete all reviews of 
        biological, ecological, and other relevant information within 
        the schedules established by the Act, appropriate regulations, 
        and applicable policies.
        e.  To conduct management-level review of documents developed 
        and drafted by Service biologists to verify and assure the 
        quality of the science used to establish official positions, 
        decisions, and actions taken by the Services during their 
        implementation of the Act.
 Hastings/Lucas 23. (EPA): As of today, how many requests for 
        consultation have been sent by EPA to one of the Services 
        regarding pesticides, under court order or settlement, to which 
        the Service has not substantively responded? As of today, how 
        many additional pesticide product/species combinations is EPA 
        under court order or settlement to send to one of the services? 
        When do you expect EPA to send those to a Service?
    Answer: As of May, 2011, EPA has submitted 147 consultation 
requests to either the FWS or NMFS, under court order or consistent 
with a schedule in a settlement agreement or stipulated injunction. 
These requests date from July 2002 to the present. Of these 
consultation requests, the NMFS has responded to 21 through issuance of 
final Biological Opinions. An additional two consultations were 
requests for informal consultation on which the NMFS non-concurred in 
EPA's determination that the pesticide was Not Likely to Adversely 
Affect the species being reviewed. Another 47 consultations were the 
subject of a letter from the FWS which it could not complete based on 
the information provided by EPA. If each of the above categories is 
considered to be a substantive response, there remain 77 consultation 
packages with FWS for which EPA has not received any substantive 
response. Of those, EPA is aware that the NMFS plans to address 13 
through issuance of additional Biological Opinions between now and 
April 30, 2012.
 Hastings/Lucas 24 (NMFS): In your letter to EPA on January 14, 2009, 
        you said NMFS did not have the staff capability to respond to 
        EPA with regard to registration review consultations within 
        normal statutory timelines. EPA has scheduled 70 registration 
        reviews a year for each of the next 7 years. How many more FTEs 
        would be required for you to keep up with EPA's schedule, 
        including a 90 day response time in each? What increase in your 
        budget would be required?
    Answer: NMFS estimates approximately 40 additional FTEs would be 
needed to consult within the 90-day statutory deadline and promptly 
complete the biological opinions (within 45 days thereafter). 
Approximately $6 million per year would be needed to support these 
FTEs.
 Hastings/Lucas 25. (NMFS): In a letter from Dr. Debra Edwards, 
        Director of the Office of Pesticide Programs of the 
        Environmental Protection Agency (EPA) dated April 10, 2009 that 
        is addressed to James Lecky, NMFS Director of Protected 
        Resources, EPA conveyed several serious concerns about its 
        March 18, 2009 Draft Biological Opinion relative to potential 
        effects of carbaryl, carbofurn or methomyl to Pacific salmon 
        and steelhead species. Among those is the comment that the 
        Draft ``seems not to acknowledge that agricultural chemicals 
        are secondary stressors and therefore are considered to be a 
        minor factor in species survival relative to other factors.'' 
        Please provide NMFS' explanation as to what NMFS considers to 
        be primary stressors as opposed to secondary stressors to 
        salmon. Please also identify what studies or scientific basis 
        you have for this opinion.
    Answer: Unlike EPA pesticide risk assessments, which typically 
consider the effects of a single active ingredient, biological opinions 
must consider the effects of the stressors of the proposed action in 
context with the other stressors which the listed organism may 
concurrently experience. There are a number of locations where the 
Services typically evaluate and describe the overall range of stressors 
which are applicable to specific species. Firstly, at the time of 
deciding to list a species as threatened or endangered under the ESA, 
the Services conduct extensive and rigorous review of the status of the 
species and the threats to their survival over time though public 
notice and public comment rulemaking. These listing documents are an 
excellent place to understand the ``big picture'' of the threats these 
species face. Secondly, these additional stressors are described and 
documented with brevity in the environmental baseline section of each 
biological opinion. The general status and population trends of species 
addressed in the opinion are also described in this baseline section of 
specific opinions. Thirdly, to the extent that the Services have 
completed draft or final recovery plans, which are done on a species by 
species basis either individually or with multiple species bundled 
together into a single geographic region, these recovery plans go into 
considerably greater detail on the types and severity of threats that 
such species confront
 Hastings/Lucas 26. (NMFS/FWS): Do the Services (NMFS and FWS) have 
        administrative discretion to re-open biological opinions to 
        consider additional or more current science or data? Has this 
        occurred for any NMFS or FWS biological opinion regarding the 
        affects of agricultural chemicals on salmon in the past?
    Answer: The implementing regulations provide four discrete 
``triggers'' for re-opening a completed consultation and one of those 
triggers is that new information reveals effects of the action that may 
affect listed species or critical habitat in a manner not previously 
considered (see 50 CFR 402.16(b)). EPA has not reinitiated, nor has 
NMFS requested that EPA reinitiate consultation on the biological 
opinions it has issued on national pesticides registrations. In 1989, 
the FWS completed a reinitiated consultation with EPA regarding 
selected portions of five previous biological opinions.
 Hastings/Lucas 27. (NMFS): Page 11 of NMFS' 2010 Report to Congress on 
        the Pacific Coastal Salmon Recovery Fund indicates that two-
        thirds of the 28 ESA-listed salmon populations are categorized 
        as either ``stable'' or ``increasing'' over the past 10 years. 
        During the same past decade, various labeled pesticides were 
        utilized by farmers, foresters, weed control districts, 
        mosquito control districts, and others. How do you reconcile 
        the increasing trends of 18 of the 28 populations of salmon 
        with NMFS' conclusion in these biological opinions that all 28 
        species would be jeopardized with the use of the same 
        pesticides?
    Answer: Salmon and steelhead stocks face a wide range of major 
stressors that have caused their decline over the last century, 
including extensive losses of habitat functions across a wide range of 
habitat stressors, including the adverse effects of past forestry, the 
filling and diking of riparian areas, the pollution of rivers, streams 
and estuaries, and the hardening of shorelines. Considerable progress 
has occurred in addressing a number of these topics over the last 
decade, and yet much work remains to achieve the health and 
productivity of these stocks which will lead to their delisting under 
the ESA.
    The PCSRF Annual Report compiles the activities and accomplishments 
of the states and other parties in protecting or restoring at-risk 
salmon populations in Alaska, California, Oregon, Washington, and Idaho 
over the course of the applicable reporting year. The report also notes 
the general status of all of the listed salmon stocks across this same 
extensive geography.
    In contrast, these consultations are prospective in nature, 
examining the future effects of a proposed action on the prospects of 
survival and recovery of these species. Specifically, these 
consultations examine the likely continued adverse effects of pesticide 
and herbicides uses on these stocks over time, and whether these uses 
might appreciably reduce the likelihood of their survival or recovery 
over time or adversely modify the critical habitat that has been 
designated. In short, the current status of a species as either stable, 
declining or improving does not address the question of the effects of 
a future action on those stocks, which is the focus of the 
consultations.
 Hastings/Lucas 28. (NMFS): Does NMFS maintain data for all California 
        stocks of salmon listed under ESA? The 2010 Report to Congress 
        suggests that NMFS did not have sufficient data for northern 
        California coastal coho, California Central Valley steelhead, 
        California coastal chinook, northern California steelhead, 
        central California coastal steelhead, south central California 
        steelhead and southern California steelhead. If your agency 
        cannot provide Congress the current status of these salmon 
        populations, please describe what information NMFS' 
        ``jeopardy'' conclusions are based on in NMFS' biological 
        opinions for pesticides issued in 2008, 2009 and 2010. When 
        will you have sufficient data to determine status of these 
        stocks?
    Answer: There is less population and trend data available for 
northern California coastal coho, California Central Valley steelhead, 
California coastal chinook, northern California steelhead, central 
California coastal steelhead, south central California steelhead and 
southern California steelhead than for some of the other species 
addressed in the pesticide opinions. This situation is discussed in the 
status of the species section in each biological opinion. Final 
determinations, including jeopardy and non-jeopardy decisions, are 
based on available data. Information considered included what was known 
about distribution of the species, life history, and population trends. 
NMFS reviews recovery plans every five years per statute, and this 
includes an update on status, if it has available information.
 Hastings/Lucas 29. (NMFS/FWS): On January 26, 2004, both the NMFS 
        Administrator and the FWS Director signed a letter to the EPA 
        Office of Prevention. Pesticides and Toxic Substances 
        confirming that both agencies had reviewed EPA's ``Overview of 
        EPA's Ecological Risk Assessment Process'' and found that EPA's 
        process appropriately assessed the effects of pesticides on 
        listed species and critical habitat. Have your agencies, 
        individually or collectively, changed their opinion of EPA's 
        risk assessment process, and if so, how does it need to be 
        modified to meet your agencies' risk assessment approval?
    Answer: Many of the issues that were covered in the letter are 
among those that we have referred to the NAS and we believe the NAS's 
advice will be an important element in deciding whether any 
modifications to EPA's or the Services' risk assessment protocols are 
needed.
 Hastings/Lucas 30. (EPA): In 2007 and 2008, EPA submitted 64 pesticide 
        assessments for ESA formal consultation regarding the 
        California red-legged frog to the FWS under the 2004 
        counterpart regulations. Did the FWS respond to EPA regarding 
        these pesticide assessments within the timeframe required by 
        law? Did they respond at all?
    Answer: EPA received a letter from the FWS dated January 14, 2009, 
that addressed 47 consultations EPA initiated between March 2007 and 
October 2008. That letter expressed the FWS position that each of the 
47 consultation packages was deficient and that additional information 
will be required for each request. The letter also refers EPA to a 
previous letter dated February 11, 2008, in which the FWS did not 
concur on EPA's determinations regarding potential effects of atrazine 
to the Alabama sturgeon and the dwarf wedgemussel based on the 
information available. Of the 47 consultations, all but one (the 
consultation regarding seven freshwater mussels) were initiated under 
the provision in the ``counterpart regulations'' at 50 CFR part 402.46, 
Optional Formal Consultation Procedures for FIFRA actions. The January 
2009 FWS response to consultations initiated between March 2007 and 
October 2008 did not meet the timeframes or the substantive 
requirements established in 50 CFR part 402.46. EPA responded to the 
January 14, 2009, letter clarifying that under the Services' 
counterpart regulations, Service requests for additional information 
are addressed as part of the consultation process and that EPA and the 
Services, therefore, remain in consultation regarding these 
submissions.
    EPA initiated informal consultation on atrazine for these and other 
species on August 31, 2006. After numerous discussions with the FWS 
regarding their comments, EPA amended its analyses and resubmitted the 
package for informal consultation on March 21, 2007. FWS did not concur 
with EPA's determination.
 Hastings/Lucas 31. (FWS): Does the FWS follow its own Endangered 
        Species Consultation Handbook posted on its website and adhere 
        to the 90 day timeframe requirements for formal consultations?
    Answer: Yes. FWS follows the timeframe whenever possible, given 
available resources.
 Hasting/Lucas 32. (FWS): The FWS has listed over 60 species of 
        beetles, flies and moths under the ESA, including the Delhi 
        Sands flower-loving fly in California. The range for the listed 
        Delhi Sands flower-loving fly is nearly the entire state of 
        California. As part of FWS recovery plans for this species of 
        fly, has the FWS evaluated the usage of pesticides or 
        herbicides in all parts of the state of California? How would 
        FWS' ``reasonable and prudent alternatives'' differ from NMFS' 
        with regard to its jeopardy conclusions in the first three 
        Pacific salmon biological opinions?
    Answer: The FWS has not evaluated the usage of pesticides or 
herbicides in California for possible effects to the Delhi Sands 
flower-loving fly so it is not possible to know at this time whether 
any ``reasonable and prudent alternatives'' would be necessary or 
whether they would differ from those developed by NMFS in the first 
three Pacific salmon biological opinions.
 Hastings/Lucas 33. (FWS): The Fish and Wildlife Service's public 
        website includes a statement about the impact of invasive 
        species on endangered species. To control invasive and aquatic 
        nuisance species, does FWS utilize pesticides or chemicals that 
        are labeled by EPA? Please provide the Committee with a 
        comprehensive description of all national refuges and other 
        federal land areas in which endangered species and invasive 
        species coincide with your management responsibilities.
    Answer: Yes, the FWS uses pesticides that are labeled by the EPA. 
When using these pesticides, the Service follows Department of the 
Interior and Service policies that require that we use EPA-registered 
pesticides in complete conformance with the EPA label. That is a legal 
requirement of FIFRA. The Service conveys this requirement in several 
training courses for our land managers related to integrated pest 
management, pesticides, and invasive species. In addition, the 
Service's Regional Integrated Pest Management Coordinators review the 
Pesticide Use Proposals that they review to ensure that the proposed 
uses comply with the labels.
    With regard to your request for information on the presence of 
invasive species and endangered species, unfortunately, it is likely 
that there are invasive species present on most, if not all, of the 
National Wildlife Refuges at some or all times of the year. 356 
National Wildlife Refuges provide the home for one or more threatened 
or endangered species. The degree to which invasive species are 
threatening the recovery of a listed species is not fully known in all 
cases. However, there are several examples where invasive species are 
of specific concern to the Service with respect to the conservation and 
recovery of listed species. A well-known example would be zebra mussels 
on the Upper Mississippi River National Wildlife and Fish Refuge where 
they pose a conservation concern for a number of listed native 
mollusks. Another high-profile emerging issue of conservation concern 
is the impacts of cheatgrass on sage grouse (a candidate species under 
the ESA). Lesser known examples include the chytrid fungus and Wyoming 
toad recovery on Mortenson Lake NWR and plague impacts (from the non-
native bacteria) on black-footed ferrets at the Charles M. Russell 
National Wildlife Refuge In Montana. Our National Wildlife Refuges in 
both Florida and Hawaii have long-standing issues with invasive plants 
and animals that both directly and indirectly hamper the conservation 
of numerous listed species throughout those geographic regions both on 
and off national wildlife refuges. The James Campbell NWR in Hawaii is 
home to the Hawaiian stilt and Hawaiian coot, both of which are 
impacted by the presence of invasive rats, cats, and mongoose. The 
brown tree snake on the Island of Guam (Guam NWR) poses a major concern 
to the conservation of the Guam Micronesian kingfisher. Through the 
recent investments in the National Wildlife Refuge System's Inventory 
and Monitoring effort we have, not coincidentally, identified both 
threatened and endangered species and invasive species as priority 
initiatives. Significant resources are being committed to gather the 
needed information to better understand these relationships across the 
National Wildlife Refuge System.
 Hastings/Lucas 34. (NMFS): Two studies over the past five years (in 
        2005 and 2010) have been conducted by Florida labs on the 
        impacts of a critical mosquito control product, naled, in fresh 
        and salt water environments. These studies revealed a much 
        actual lower impact than if the NMFS modeling in recent 
        biological opinions issued for impacts to Pacific salmon had 
        been utilized. Has NMFS factored this data into its biological 
        opinions, and if not, does it intend to for future modeling?
    Answer: NMFS considered several field studies regarding ultra-low 
volume (ULV) aerial applications of mosquito adulticides. Two of these 
studies are described in the opinion (pages 562-565). One (Pierce et al 
2005) evaluated naled use in the Florida Keys, and another (Bolton-
Warburg et al 2007) considered naled use in South Carolina. These 
studies were considered, along with modeling estimates and monitoring 
data, to arrive at conclusions regarding naled. NMFS is unaware of 
which 2010 study to which the Committee is referring.
 Hastings/Lucas 35. (NMFS/FWS): The Center for Biological Diversity 
        recently sued to restrict the use of naled in Florida, alleging 
        it adversely impacts a number of ESA-listed species. Do the 
        NMFS and FWS intend to apply 500 to 1000 foot buffers in 
        Florida's lakes, streams and other water bodies similar to 
        those advocated in the biological opinions for salmon in the 
        Pacific Northwest and California? Will NMFS and FWS take into 
        account all Florida state agriculture data and other studies, 
        since it apparently did not in the recent salmon biological 
        opinions?
    Answer: The Services have not received a request for consultation 
from EPA on the use of naled in Florida. NMFS has consulted on EPA's 
registration of naled, but per a court settlement, NMFS only evaluated 
the effects of that registration on Pacific salmonids. Should NMFS or 
FWS consult with EPA on the registration of naled and its effects on 
listed species in Florida, the agencies will take into account any 
Florida state agriculture data, along with other studies and any other 
pertinent scientific information. Any discussion of potential buffers 
is premature at this time.
 Hastings/Lucas 36. (NMFS): Does NMFS analyze the impact of actions in 
        biological opinions on certain specific populations or broadly 
        to include all 28 populations of salmon?
    Answer: NMFS analyzes the impact of any listed species under our 
jurisdiction on a species-by-species basis, or, more precisely, on a 
species, subspecies, or ``distinct population unit'' of a species, 
depending upon what is listed at the time of the consultation. In 
analyzing the effects of a proposed action on the listed species, NMFS 
typically starts by looking at the effects on individuals, then on the 
populations which those individuals comprise, and then rolling up the 
population level effects to the level of listed species--in those 
instances where the listed ``unit'' is comprised of multiple 
populations, which is the case with most salmonid listings. In the 
pesticide consultations, the effects analysis is limited to listed 
salmonids in the Pacific as part of Court settlement agreements.
 Hastings/Lucas 37. (NMFS/FWS): Do either NMFS or the FWS have experts 
        on staff that are able to fully analyze the impacts of your 
        proposed ``reasonable and prudent alternatives'' on agriculture 
        production, forestry, weed control and mosquito districts? What 
        is the level of consultation your experts have engaged with 
        other experts on these issues in the Department of Agriculture 
        and state departments of agriculture?
    Answer: Please see the answer to #10, above. Typically NMFS works 
with Federal action agencies to determine the economic and technical 
feasibility of a potential RPA. USDA has not had a significant role in 
the FIFRA consultations between EPA and NMFS to date. However, NMFS, 
FWS, EPA, and USDA are part of the interagency workgroup examining 
issues related to these consultations. That interagency group should 
provide a valuable avenue to access USDA's expertise in this area.
 Hastings/Lucas 38. (NMFS/FWS): How do the NMFS and FWS determine the 
        action area that is to be evaluated for impacts to listed 
        species in a section 7 consultation? Does NMFS or the FWS 
        consider critical habitat designation maps as the area that 
        would be covered for potential impacts to species, or is there 
        some other measurement that your agency utilizes? Please 
        explain.
    Answer: The action area is defined by regulation as the area where 
direct and indirect effects of the action may occur. It is determined 
on a case-by-case basis for each proposed action. For the purposes of 
the salmonid pesticide consultations, the action area was limited to 
areas within the states of California, Idaho, Oregon, and Washington.
 Hastings/Lucas 39. (NMFS/FWS): How do NMFS and the FWS define an 
        affected ``stream'' for purposed of potential ``reasonable and 
        prudent alternatives'' including buffers, for pesticide 
        applications?
    Answer: In its RPAs, NMFS did not specifically define ``streams''. 
As a general matter, NMFS defined salmonid habitats as freshwaters, 
estuarine habitats, and nearshore marine habitats including bays within 
the listed species' ranges, including migratory corridors. The 
freshwater habitats include intermittent streams and other habitats 
temporally connected to salmonid-bearing waters when those habitats 
contain water. For the first three biological opinions, freshwater 
habitats also include all known types of floodplain habitats as well as 
drainages, ditches, and other man-made conveyances to salmonid habitats 
that lack salmonid exclusion devices (e.g., fish screens).
 Hastings/Lucas 40. (NMFS/FWS): For rivers and streams that include 
        multiple listed fish species (i.e. salmon, smelt and bull 
        trout), did FWS prepare a separate biological opinion or review 
        NMFS' data or modeling to determine impacts to freshwater 
        species and were the same mitigation measures used as were for 
        salmon in these biological opinions?
    Answer: The Fish and Wildlife Service has not completed 
consultations for the pesticides covered in the NMFS biological 
opinions, nor has the Service commented on NMFS' data or models.
 Hastings/Lucas 41. (NMFS/FWS): How do NMFS and the FWS resolve 
        differences in scientific data or modeling relating to 
        Endangered Species Act consultations?
    Answer: The ESA requires the Services and consulting agencies to 
use the best scientific and commercial data available in addressing a 
federal agency's duty to insure that its actions are not likely to 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of designated critical habitat. 
The Services gather all available data and assess the relevance of that 
data to addressing the substantive duties imposed by section 7(a)(2). 
In keeping with the statutory construct to ``insure'' that federal 
agency actions are not likely to jeopardize the continued existence of 
listed species or cause the destruction or adverse modification of 
critical habitat, the ESA has been interpreted to provide the benefit 
of the doubt to the species in situations where the available data are 
less than fully dispositive.
 Hastings/Lucas 42. (NMFS/FWS): On January 18, 2011, the President 
        issued Executive Order 13563, ``Improving Regulation and 
        Regulatory Review.'' Section 6 of that Order calls for a 
        ``Retrospective Analyses of Existing Rules.'' Have NMFS or FWS 
        identified the joint rules governing consultations as one of 
        the regulations that should be ``modified or streamlined. . .so 
        as to make the agency's regulatory program more effective or 
        less burdensome?'' Please explain each of your agencies' plans 
        to implement this executive order relative to ESA.
    Answer: The Services have specifically identified the establishment 
of a new regulatory definition of ``destruction or adverse modification 
of critical habitat'' in the joint rules governing interagency 
consultation as needed to improve the implementation of the ESA. This 
is one of many adjustments being considered by the Services in their 
joint ESA rulemaking currently underway.
 Markey 1a. (EPA): During the hearing, I asked you whether the Office 
        of Pesticide Programs (OPP) considered the impacts of inert 
        ingredients on endangered species when it reviews an active 
        pesticide ingredient under FIFRA. Could you please elaborate as 
        to precisely what stage of the FIFRA inquiry this evaluation 
        occurs and provide the FIFRA regulatory authority under which 
        this occurs?
    Answer: As part of its current ecological risk assessment process 
conducted under the authority of FIFRA section 3, EPA reviews data 
submitted by the pesticide manufacturer on the active ingredient and, 
when available, on formulated products. Generally, six acute toxicity 
tests are required for a product's registration. Additionally, EPA 
requires end-use product data for terrestrial plants on the following 
types of products: products applied directly to water (e.g., aquatic 
herbicides, mosquito larvicides); products whose expected concentration 
in water exceeds half the median lethal dose; and products formulated 
with an ingredient expected to enhance the toxicity of the active 
ingredient (a synergist). EPA also reviews available open literature to 
determine whether any data exists in the public realm related to a 
formulated product. Through analysis and comparison of toxicity data on 
the active ingredient and that for the formulated product, EPA 
determines whether the additional constituents in the formulated 
product (including inert ingredients) render it more toxic than the 
active ingredient alone. If the formulated product data shows the 
product is more toxic than the active ingredient alone, EPA will use 
the formulated product data quantitatively to assess the risk to non-
target listed and non-listed species. The comparison of available data 
on the formulated product and with data on active ingredient alone 
allows EPA to determine whether there may be a potential for concern 
with a formulated product that is not accounted for by considering the 
potential effects of the active ingredient alone.
 Markey 1b. (EPA): Would it be accurate to state that the OPP's inquiry 
        on the impacts of inert ingredients occurs primarily after the 
        FIFRA initial screening process, and during the Biological 
        Evaluation that the OPP completes as a prerequisite to formal 
        consultations with the NMFS or FWS under ESA? If not, why not? 
        Please also provide an example to the Committee to help 
        illustrate exactly when and how OPP evaluates the effect of 
        inert ingredients on a specific listed species. Has EPA ever 
        undertaken any such efforts (a) in the absence of an ongoing or 
        anticipated ESA consultation or (b) in the absence of a court 
        ordered mandate or settlement? If the answer is yes for either 
        (a) or (b), please provide a complete description, including a 
        timeline, related to each such instance.
    Answer: OPP's analysis, as described above, to determine whether 
inert ingredients in pesticide products are adding to the potential 
risk from use of the product is currently an integral part of the 
ecological risk assessment conducted to support a registration or 
registration review decision for a pesticide. This analysis is 
conducted independently of whether there are concerns for federally 
listed threatened or endangered species.
 Markey 2. (EPA): Determining the impacts of multiple environmental 
        stressors is a highly complex endeavor. During the hearing, you 
        were asked whether OPP considered how multiple pesticides may 
        interact and threaten the existence of endangered species, and 
        you responded that OPP considers this during the FIFRA 
        registration process. Could you please explain and elaborate on 
        the scientific difficulties involved in such an inquiry, given 
        that in any given body of water, the mix of different 
        pesticides and other chemical substances can change? When 
        during both (a) the full FIFRA review and (b) ESA consultation 
        does OPP consider such potential synergistic impacts on 
        endangered species? Please also provide us with any guidance or 
        other materials used by EPA to assess such impacts. Please also 
        provide to the Committee a specific example of a pesticide 
        registration to help illustrate exactly when and how this 
        analytical inquiry occurs.
    Answer: The same type of information that informs EPA's analysis of 
whether inert ingredients in a pesticide product increase the toxicity 
of the formulation, also informs EPA's consideration of the effect of 
multiple stressors. Through review of the same data, EPA can compare 
the toxicity of the active ingredient alone, to that of the products 
that contain multiple active ingredients to determine whether the 
combination of active ingredients results in toxicity not accounted for 
by the single active ingredient alone. Further consideration of 
multiple chemical stressors is complicated by factors on both the 
hazard and exposure sides of the risk equation. For example, the hazard 
expressed in toxicity studies of a multiple active ingredient compound 
may not be what occurs in the real world after a product is applied 
because the different constituents in the product may degrade at 
different rates. Variable degradation, along with differences in how 
the constituents move through the environment, makes it very 
difficult--if not impossible--to predict the level of each active 
ingredient a species may encounter simultaneously. How best to account 
for such variability in predicting toxicity and exposure to multiple 
chemical stressors in the environment is one of the questions the 
federal government is putting before the NAS for their consideration 
and advice.
 Markey 3. (EPA): Does the Environmental Protection Agency (EPA) have 
        the authority to use some of the fees it collects under the 
        Pesticide Registration Improvement Act (PRIA) to refund the 
        Fish and Wildlife Service (FWS) or the National Marine 
        Fisheries Service (NMFS) for increased consultation workloads 
        in the future? If yes, please describe how such authority might 
        be used in the future.
    Answer: Fees assessed under PRIA have historically been based on 
the costs to EPA to review applications and to offset the expedited 
review schedules imposed on EPA by PRIA. Allowing reimbursement to 
``supporting programs'' outside of EPA would require an increase in the 
fees assessed to achieve the same goals and may require additional 
legislative authority.
 Markey 4a. (EPA): Do you believe that the Endangered Species Act (ESA) 
        consultation process is entirely duplicative of the Federal 
        Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
        registration process?
    Answer: While the ecological risk assessments that EPA performs on 
pesticides are relevant to its duties under both FIFRA and the ESA, it 
is clear that the statutes themselves are not entirely duplicative. The 
challenge for the federal government is how to ensure that analyses 
performed by different segments of the agencies are complementary. The 
Services can bring to bear important expertise on species' biology and 
geographic distribution that is not currently available to EPA. EPA and 
the Services are working to determine how to better align analyses of 
pesticide toxicity and fate characteristics in bringing this pesticide-
specific information to bear on risk assessments for listed species.
 Markey 4b. (EPA): Is there any data that the NMFS or FWS is required 
        to consider during the ESA consultation process that is not 
        required to be considered by the OPP during the registration 
        and re-registration process? If yes, please describe. If no, 
        has the OPP always considered such data in the past?
    Answer: The ESA requires consideration of the best scientific and 
commercial data available. However, the ESA statute itself does not 
define ``best available scientific data'' nor does it prescribe 
specific standards governing data quality, given the very wide variety 
of plants, birds, animals and fish which are addressed by the program. 
Several decades of case-law speak to the issue of the general 
obligation to use best available science, but that same case-law gives 
little supplemental guidance on the boundaries of the concept. Through 
its regulations at 40 CFR part 158, EPA has established a standard 
suite of data required to support registration of a pesticide under 
FIFRA. However, EPA can and does consider additional relevant 
information in conducting its assessments under FIFRA.
 Markey 5. (EPA): FIFRA guards against ``unreasonable adverse effects'' 
        on the environment. But FIFRA defines this term to require the 
        EPA to consider the overall economic benefits to agriculture as 
        part of this unreasonableness inquiry. If the economic benefits 
        of the registration of a pesticide slightly outweigh the 
        estimated environmental damage would EPA be authorized under 
        FIFRA to cancel the pesticide? For example, if registration 
        creates $10 million dollars in economic benefits, and 
        simultaneously causes $9 million in environmental damage (e.g. 
        from higher water treatment costs) would EPA be authorized 
        under FIFRA to cancel the pesticide? Under this scenario, would 
        EPA be authorized under FIFRA to require a new condition of use 
        (labeling, etc) for the pesticide? If the response is yes to 
        either question, has EPA ever exercised such authority and if 
        so, please describe the circumstances?
    Answer: In addressing the hypothetical circumstances identified 
above, it is important first to understand that, as defined in FIFRA 
section 2(bb), the statutory standard of ``unreasonable adverse effects 
to the environment'' is not a risk-benefit standard with respect to 
human dietary risk. Rather, section 2(bb) requires that the human 
dietary risk from a pesticide meets the section 408(b) Federal Food 
Drug and Cosmetic Act safety standard. Under that ``risk only'' 
standard, which requires that EPA find a ``reasonably certainty of no 
harm,'' EPA evaluates whether dietary exposures are ``safe'' in 
determining whether to permit or further regulate the use of a 
pesticide. Thus, in the hypothetical circumstance above, EPA would not 
balance the economic benefits of pesticide use against the risks from 
human exposure to drinking water and the costs of appropriate water 
treatment. For risks other than human dietary risk, FIFRA directs EPA 
to take into account the ``economic, social, and environmental costs 
and benefits'' of the use of pesticides. Under this standard, EPA 
balances the risks from the use of a pesticide against the benefits 
that accrue from the use of the pesticide in deciding whether to 
register or cancel a pesticide, or to seek lesser restrictions on a 
registered pesticide--such as labeling amendments (which are also 
accomplished through the cancellation process absent registrant 
agreement). If EPA concludes that the risk-benefit balance weighs in 
favor of further restrictions on the use of a pesticide, it will pursue 
regulatory action under FIFRA. If it comes to the contrary conclusion, 
it will not pursue regulatory action.
    With respect to the assumptions underpinning the risk-benefit 
balancing suggested in the hypothetical question, EPA must note that 
FIFRA does not require the Agency to monetize risks and benefits in 
either registering a pesticide or taking cancellation action, and EPA 
cannot recite an instance where it has been possible to completely and 
accurately monetize all the risks and benefits associated with a 
particular action.
 Markey 6. (EPA): In Washington Toxics Coalition v. U.S. Dept. of 
        Interior, 457 F. Supp. 2d 1158, 1184 (D. Wash 2006), the Court 
        stated that ``EPA's risk assessment process is not only less 
        protective than Service determinations, there is overwhelming 
        evidence on the record that without a Service check, EPA risk 
        assessments (leading to pesticide registrations) would actually 
        result in harm to listed species.'' Do you believe that the 
        Court's conclusion that EPA-OPP's risk assessment procedures is 
        less protective was erroneous, and if so, why?
    Answer: In the case cited above, the issue before the court was 
whether the ESA could be interpreted to permit action agencies, such as 
EPA, to satisfy their ESA consultation duties in certain lower risk 
situations (those involving actions that are ``not likely to adversely 
affect'' listed species) without first obtaining the written 
concurrence of the Services on every such action. The court's 
commentary on EPA's risk assessment process was therefore not intended 
to serve--and does not serve--as the authoritative ruling of the court. 
EPA agrees with the court's overall observation that aspects of the 
Services' assessments were more conservative in nature than the 
methodologies being used by EPA in the early 2000's.
 Markey 7. (EPA): In 1989, the Fish and Wildlife Service completed a 
        Biological Opinion on the impacts of over 100 pesticide active 
        ingredients, including all of the pesticides at issue in the 
        West Coast Salmon Biological Opinions. This biological opinion 
        examined the effect of these pesticides on more than 125 
        endangered species, and concluded that the use of nearly all of 
        the pesticides being considered would cause jeopardy to at 
        least one of these endangered species. The Fish and Wildlife 
        Service recommended an array of Reasonable and Prudent 
        Alternatives (RPAs), including buffer zones between 20 yards 
        and \1/4\ mile in size to protect endangered species where 
        jeopardy was found. EPA never implemented any of the 
        recommendations by the Fish and Wildlife Service. Does EPA 
        believe that its decision not to implement the RPAs recommended 
        by FWS has resulted in further harm to these species? If not, 
        why not?
    Answer: EPA is currently involved in litigation in U.S. district 
court (CBD v. EPA, No. CV110293 (N.D.Cal.)) regarding, among other 
things, EPA's response to the 1989 FWS biological opinion identified in 
this question. Responding to this question at this time could prejudice 
EPA's defense of that litigation. Respectfully, therefore, EPA must 
decline to address this question at this time.
 Markey 8. (EPA): How many effects determinations does EPA-OPP intend 
        to conduct this year in Biological Evaluations or Biological 
        Assessments on the impacts of pesticides on endangered species 
        where there is no court ordered settlement or consent decree 
        mandating that EPA take such action? Please provide a 
        description of all such efforts, including specific timelines 
        and milestones.
    Answer: As mentioned in testimony, EPA intends to meet its ESA 
obligations for pesticide registrations via the Registration Review 
Program. Through this program, EPA will be re-evaluating the safety of 
every pesticide registration at least once every 15 years. EPA's 
approach is to analyze pesticides' potential to affect endangered and 
threatened species in the ecological risk assessments supporting 
regulatory decisions under the registration review program. EPA intends 
to begin the registration review process for 72 pesticides in 2011 and 
an additional 70 pesticides in 2012. The schedule for completing 
assessments on these pesticides will vary depending on whether and to 
what extent EPA needs to call in data from pesticide manufacturers.
 Markey 9. (EPA): Previous lawsuits against EPA for failure to consult 
        with the FWS and NMFS have resulted in interim restrictions on 
        uses of certain pesticides in environmentally sensitive areas, 
        such as critical habitat for the endangered red-legged frog in 
        California, while EPA engages in the required consultations. Is 
        EPA enforcing these interim restrictions in order to prevent 
        harm to this species? If yes, please describe all such steps 
        taken as part of these efforts, including information on the 
        number of inspections performed, and list the remaining steps 
        that EPA is considering taking. If not, why not?
    Answer: The settlements and court orders arising from the lawsuits 
referred to in this question have not imposed FIFRA-enforceable 
obligations on pesticide users that would authorize EPA to take 
enforcement action against persons not complying with the terms of the 
settlements and orders. For example, in CBD v. Johnson, No. 02-1580-JSW 
(N.D. Cal., Oct. 20, 2006), the ``red-legged frog case,'' the 
stipulated injunction entered by the court provides the following:
    ``This Order does not require EPA to take any action under the 
Federal Insecticide, Fungicide, and Rodenticide Act including, but not 
limited to, any action to suspend, cancel, or modify the registration 
of any pesticide.''
    Accordingly, the Order did not require a FIFRA regulatory action 
that would give rise to amended product labeling bearing the terms of 
the interim restrictions that EPA could enforce.
    In connection with the Washington Toxics Coalition v. EPA (No. C01-
132C, order of Jan. 22, 2004) litigation, EPA likewise made clear 
through a ``question and answer'' provided on its website that the 
court-ordered injunctive relief in that action was not a FIFRA action 
that EPA could enforce. The text of that ``question and answer'' is as 
follows:
        ``6. Is it a violation of FIFRA to use a subject pesticide 
        within the buffer zones?
    In an earlier order, the Court made clear that it would neither 
order EPA to take regulatory action under FIFRA nor would its action 
setting aside the registrations in the buffer zones constitute a 
regulatory action under FIFRA. Although failure to comply with the 
court order is not a violation of FIFRA, EPA recognizes the legal 
effect of the Court's Order and is providing through our web site and 
other avenues, information for pesticides users to understand the 
provisions of the Order.''
    Because EPA's sole authority to enforce pesticide use violations is 
through its FIFRA authority, EPA cannot enforce the terms of these 
settlements and court orders in the absence of FIFRA action that 
modifies the terms of the subject pesticide registrations.
 Markey 10. (EPA): Please describe for each of the 50 states the method 
        the EPA uses to track the use of pesticides. Is the EPA able to 
        track pesticide applications at county level (versus the state 
        level)? If yes, please provide a list of the States in which 
        the EPA is able to track pesticide applications on the county 
        level. Does the EPA have the capability to track pesticides on 
        a finer, more localized, scale? If yes, please indicate where 
        this level of tracking occurs.
    Answer: Although FIFRA does not require EPA to track pesticide 
usage at the state level, EPA does routinely obtain and use information 
on pesticide usage in its regulatory decisions. Also, when considered 
necessary for individual pesticides, FIFRA section 3(c) authorizes EPA 
to require pesticide manufacturers to submit information to support the 
continued registration of a pesticide. EPA has used this authority to 
require reporting of pesticide usage information. For the most part, 
however, EPA obtains pesticide usage data from other sources including 
USDA, private companies, and the States. USDA's National Agricultural 
Statistics Service (NASS) provides data for on-farm use of agricultural 
chemicals in States with major agricultural production. EPA also 
purchases data from a private research company, GfK Kynetec, that 
surveys a statistically representative sample of pesticide users and 
various crops and then projects that data to the State and national 
level. Some states provide information regarding pesticide usage, but 
these data sources (with the exception of California) generally are not 
as comprehensive or systematic as NASS and GfK Kynetec information and 
do not provide information on pesticide usage at the county or more 
geographically refined scales. California requires use reporting for 
all pesticide applications (excluding home and garden and most 
industrial and institutional uses), and collects comprehensive data on 
pesticide applications at the state, county, and sub-county level. EPA 
has access to the data collected by California.
 Markey 11. (EPA): Recent research has linked atrazine exposure to 
        cancer, birth defects, and endocrine disruption in humans, as 
        well as significant biological harm to wildlife. Although 
        banned by the European Union, this EPA-approved pesticide is 
        the most commonly used herbicide in the United States. Has the 
        EPA ever consulted with the Fish and Wildlife Service on the 
        impacts of atrazine to any listed species within the United 
        States? If so, please describe all such efforts. If not, why 
        not?
    Answer: EPA has requested consultation with FWS or NMFS related to 
the potential effects of pesticide products containing atrazine on a 
variety of federally listed threatened or endangered species as 
follows:
          August 2003--Southern Oregon/Northern California coho 
        salmon and Central Valley California steelhead note: NMFS asked 
        EPA to provide additional information.
          August 2006--Barton Springs salamander.
          August 2006 (with further follow-up information to 
        the Service in 3/2007)--loggerhead turtle, leatherback turtle, 
        green turtle, Kemp's ridley turtle, shortnose sturgeon (note: 
        NMFS non-concurred on EPA's determination that atrazine was not 
        likely to adversely affect the species; no further consultation 
        has occurred), and dwarf wedge mussel in the Chesapeake Bay 
        watershed (MD, VA, DE).
          August 2006 (with further follow-up information to 
        the Service in 3/2007)--Alabama sturgeon in the Alabama River 
        watershed.
          March 2007--pink mucket pearly mussel, rough pigtoe 
        mussel, shiny pigtoe pearly mussel, fine-rayed pigtoe mussel, 
        heavy pigtoe mussel, ovate clubshell mussel, southern clubshell 
        mussel, and stirrup shell mussel.
          September 2007--catspaw mussel, fat pocketbook 
        mussel, and northern riffleshell mussel.
          September 2007--Pallid sturgeon.
          September 2007--Topeka shiner.
          February 2009--California red-legged frog and delta 
        smelt.
 Markey 12. (EPA): Please describe in detail the EPA's interpretation 
        of the statutory mandates contained in section 1010 of the 1988 
        Amendments to the Endangered Species Act. Please describe the 
        actions and the specific year EPA took such actions to comply 
        with the mandates included in this provision of the law.
    Answer: In 1988, Congress addressed the relationship between the 
ESA and EPA's pesticide labeling program in section 1010 of Public Law 
100-478 (enacted on October 7, 1988, concurrent with amendments to the 
ESA). This provision required EPA to conduct a study and to provide 
Congress with a report of the results (EPA's 1991 report to Congress: 
Endangered Species Protection Program as it Relates to Pesticide 
Regulatory Activities, EPA 540-09-91-120, May 1991) on ways to 
implement EPA's endangered species pesticide labeling program in a 
manner that both promotes the conservation of listed species and 
minimizes the impacts to persons engaged in agricultural food and fiber 
commodity production and other pesticide users and applicators. In 
EPA's view, this law provided a clear sense that Congress desires that 
EPA should fulfill its obligation to conserve listed species, while at 
the same time considering the needs of agriculture and other pesticide 
users.
    Through a Federal Register notice published in March 1988, EPA 
reviewed its progress in developing its Endangered Species Program and 
invited public comment on a proposed program. Public meetings were held 
around the country to obtain input. Over 600 sets of written comments 
and recorded comments from the public meetings served to guide further 
development of the program. In response to section 1010, EPA, the 
Services and USDA formed a working group to study how EPA might proceed 
to carry out its ESA obligations. The work of that group and its 
consideration of the significant public input EPA received previously 
were instrumental in developing EPA's 1989 proposal on its Endangered 
Species Protection Program. The interagency working group further 
studied best methods to develop maps, alternatives to mapping, 
reasonable measures for mitigating risks, coordination methods, etc. 
The result of the working groups deliberations and study were described 
in EPA's May, 1991, Report To Congress as directed by section 1010(c).
    Further, section 1010(a) directs EPA to take public comment on any 
proposed pesticide labeling program imposed in order to comply with the 
ESA. Pursuant to that provision, EPA issued and sought public comment 
on its Endangered Species Protection Program in December 2002 (67 FR 
71549, December 2, 2002). A final program Federal Register notice was 
published in 2005.
 Markey 13. (EPA): Under FIFRA authority, if EPA determines that the 
        current use of a pesticide causes unreasonable adverse effects 
        is it correct that EPA can only make changes to the pesticide 
        labeling if the pesticide manufacturer willingly volunteers to 
        change the labeling restrictions on its product? In the event 
        that the pesticide manufacturer does not voluntarily agree to 
        making product label changes, is EPA's only recourse the 
        cancellation process? Since 1980, how many times has the EPA 
        found that labeling changes are necessary, but the pesticide 
        manufacturer refused to voluntarily change its label? For each 
        of these cases did OPP invoke the cancellation process, and 
        what was the final result of that process?
    Answer: If EPA determines that a registered pesticide, as currently 
approved, causes unreasonable adverse effects on the environment, it 
must pursue action under FIFRA in the absence of registrant agreement 
to alter the terms of registration. In the vast majority of the 
hundreds of cases where EPA has determined that either changes to 
labeling or product cancellation are necessary, EPA and the pesticide 
registrants have ultimately come to agreement regarding the terms and 
timing for implementing additional limitations and restrictions. Since 
1980, EPA has had to conduct only three contested cancellation or 
suspension proceedings under section 6 of FIFRA. Each of these 
proceedings resulted in either the cancellation of the pesticide 
altogether or the deletion of certain uses from product registrations.
 Markey 14. (EPA): Has EPA-OPP initiated consultation with the FWS or 
        NMFS for any species on any pesticide anywhere in the country, 
        in which at the end of the process, EPA fully implemented any 
        RPA designed to protect an endangered species? If so, please 
        provide examples and a description of such efforts taken, 
        including whether these efforts were taken as a part of a 
        court-ordered mandate or settlement of legal action.
    Answer: The ecological risk assessments EPA performs under FIFRA, 
and any resulting pesticide use limitations to protect non-target 
organisms, may also provide protection for a variety of listed species. 
As a result, looking only at specific actions taken following 
consultation does not provide a complete picture of instances in which 
EPA has protected listed species from the potential effects of a 
pesticide. Nonetheless, EPA has fully implemented measures for the 
protection of listed species on several specific occasions. These were 
NOT related to litigation or court-ordered action. For example, EPA has 
implemented protections for:
          Attwater's prairie chicken relative to the pesticide 
        thiram.
          Delmarva fox squirrel relative to the pesticide 
        carboxin.
          Karner blue butterfly relative to the pesticide 
        methoxyfenozide.
          Hine's emerald dragonfly relative to the pesticide 
        methoxyfenozide.
    EPA has long stated that it intends to meet its ESA obligations for 
pesticide registrations via the Registration Review Program. Through 
this program, EPA will be re-evaluating the safety of every pesticide 
registration at least once every 15 years. To date, EPA has initiated 
consultations for several pesticides: formal consultations for 
clomazone (April 2009) and fomesafen (April 2009), and informal 
consultations for inorganic nitrates-nitrite (May 2010), carbon and 
carbon dioxide (May 2010), and sulfur (May 2010). Each of these 
consultations was initiated without court-ordered or mandated legal 
settlement.
 Markey 15. (EPA): When OPP completes a Biological Evaluation or a 
        Biological Assessment, is it required to consider the 
        application of a pesticide up to and including the legal limit 
        of what a pesticide applicator could apply to an area of land 
        or water as specified on a pesticide label?
    Answer: EPA's ecological risk assessment procedures include 
estimating the environmental concentrations from use of the pesticide 
at its maximum labeled application rate.
 Markey 16. (EPA): Do broad spectrum, organophosphate insecticides kill 
        beneficial insect species, including pollinators like bees, 
        predatory insects that naturally kill insect pests, and other 
        species like butterflies? If yes, please describe which of 
        these pesticides harm or kill beneficial species, and please 
        explain the types of impacts that might occur as a result of 
        exposure to these pesticides.
    Answer: Some pesticides may have a specific mode of action that 
affects only certain pest species. However, broad spectrum insecticides 
would likely affect any insect species, including beneficial and other 
non-target insects, if the insect is exposed at levels that result in 
the effect. The specific effect exhibited by the insecticide on the 
target pest would also occur in these non-target species. Exposure to 
the organophosphate insecticides is expected to result in mortality due 
to neurotoxic effects of the insecticide. EPA's ecological risk 
assessments explore the potential for effects to non-target insects 
(beyond honey bees) in part to characterize the extent of such effects 
on the environment in general and on non-target species that may serve 
as the prey-base for another species.
 Markey 17 (NMFS): In the last few years, several endangered 
        Evolutionary Significant Unit (ESU) of salmon on the West Coast 
        have experienced population increases. However, most of these 
        populations still remain far below the population levels that 
        would allow for either downlisting from endangered to 
        threatened, or delisting under the Endangered Species Act 
        (ESA). In fact, the National Marine Fisheries Service's (NMFS) 
        report to Congress recognizes ``trends in abundance may not be 
        indicative of true recovery status. Other risk factors such as 
        low levels of abundance, lack of access to historical spawning 
        habitats, extirpation of component populations, and the lack of 
        spatial connectivity among extant component populations are 
        significant factors in determining recovery status.'' Please 
        describe the recovery criteria for delisting each salmon 
        Evolutionary Significant Unit (ESU) on the West Coast, and how 
        this relates to recent population trends and abundances that 
        indicate that some salmon ESUs are increasing.
    Answer: The specific recovery criteria for each Evolutionarily 
Significant Unit (ESU) with a proposed or final recovery plan are 
included in the recovery plan documents available at the NMFS Northwest 
Region (http://www.nwr.noaa.gov/Salmon-Recovery-Planning/ESA-Recovery-
Plans/Draft-Plans.cfm) and Southwest Region (http://www.swr.noaa.gov/
recovery/index.htm) websites. These voluminous reports and their 
underlying scientific documents are reviewed briefly below.
    After 27 Pacific salmon ESUs were listed as threatened or 
endangered under the ESA, NMFS initiated a coastwide process to develop 
recovery plans for these species. An important part of this process was 
the creation of geographically-based Technical Recovery Teams--multi-
disciplinary science teams chaired by NMFS Northwest Fisheries Science 
Center or Southwest Fisheries Science Center staff. NMFS asked the 
Technical Recovery Teams to define ESU structure (i.e. the independent 
and dependent populations that make up the ESU) and to develop 
recommendations for biologically-based ESU and population viability 
criteria.
    NMFS encouraged each Technical Recovery Team to develop regionally 
specific approaches while adhering to the same biological principles 
for describing ESU and population viability. The biological principles 
for viability used by all Technical Recovery Teams are described in a 
NMFS technical memorandum, Viable Salmonid Populations and the Recovery 
of Evolutionarily Significant Units (McElhaney et al. 2000 \1\). NMFS 
defines a viable ESU as being naturally self-sustaining with a high 
probability of persistence over a 100-year time period. Viable salmonid 
populations are defined in terms of four parameters: abundance, 
productivity (growth rate), spatial structure, and diversity. Each 
Technical Recovery Team recommended criteria for these parameters 
describing viable levels for an ESU and its component populations. An 
ESU must meet or exceed these viability criteria for a sustained period 
of time (e.g., 10-20 years or several salmon generations) to 
demonstrate confidence that the ESU has attained a high probability of 
persistence. For the 12 ESUs with recovery plans proposed or completed 
so far, NMFS has largely adopted Technical Recovery Team 
recommendations for biological viability criteria, with some 
modifications. It is notable that to date, for all final recovery 
plans, the biological viability criteria have been endorsed by key 
stakeholders, including the states of Oregon and Washington, affected 
tribes, local governments, and other stakeholders.
---------------------------------------------------------------------------
    \1\ Available online at: http://www.nwfsc.noaa.gov/assets/25/
5561_06162004_143739_tm42.pdf
---------------------------------------------------------------------------
    The spatial structure and diversity components of the viable 
salmonid population approach are the foundation of viable salmon 
populations and ESUs; are critical components of conservation and 
recovery efforts; and are required components to be considered in 
progress towards recovery. The situation is analogous to managing a 
financial portfolio: a well-diversified portfolio will be impacted less 
by fluctuating market conditions than one concentrated in just a few 
stocks. For example, the expression of a diversity of life-history 
types (e.g., run timing of adults, timing of smolt ocean migration, 
freshwater residency time, time spent in the marine environment) and a 
distribution of spawning groups across the landscape can buffer 
populations and ESUs from the impacts of environmental variation.\2\ 
Having populations appropriately distributed across the landscape 
reduces the likelihood that a single catastrophic event (e.g., drought, 
fire) would impact all of the populations in an ESU. High abundance and 
productivity alone cannot make populations or ESUs resilient to changes 
in environmental conditions. Accordingly, recovery planners are 
emphasizing the need for salmon populations to be spread across the 
landscape and in a variety of habitat types to support the diversity 
and spatial structure necessary for population and ESU viability.
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    \2\ Lindley et al. 2009. What caused the Sacramento River fall 
Chinook stock collapse? U.S. Department of Commerce, NOAA Technical 
Memorandum NOAA-TM-NMFS-SWFSC-447.
---------------------------------------------------------------------------
    In addition to biological viability criteria, each recovery plan 
also must include threats criteria. Threats criteria are based on the 
five listing factors in section 4(a)(1) of the ESA: (A) present or 
threatened destruction, modification, or curtailment of [the species'] 
habitat or range; (B) over-utilization for commercial, recreational, 
scientific or educational purposes; (C) disease or predation; (D) 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
human-made factors affecting [the species'] continued existence. 
Threats criteria describe conditions that, if met, would indicate that 
the listing factors have been addressed sufficiently that the removal 
of ESA protections is not likely to result in the re-emergence of the 
threats.
    The ESA requires that NMFS conduct a review of threatened and 
endangered species at least once every five years to determine whether 
it should retain its current listing status, remain listed but change 
in status, or be delisted. NMFS is currently completing such a review 
for ESA-listed West Coast salmon and steelhead. As part of this review, 
the agency is updating the available status information for the 
viability parameters and ESA listing factors, and evaluating recent 
trends relative to the biological viability and threats criteria 
detailed in proposed or final recovery plans, where they exist. 
Several, but not all, ESA-listed salmon ESUs have increased in 
abundance the last few years, in some cases following precipitous 
declines since 2002. As described above, abundance is but one of many 
parameters considered in evaluating overall ESU viability and progress 
toward recovery goals. Additionally, improvements must be sustained for 
a sufficient period of time to demonstrate a high probability of 
persistence. While recent abundance trends for some ESUs may be 
encouraging, they alone may not reflect true progress toward delisting 
goals. NMFS Northwest Region expects to announce its 5-year status 
review findings in the fall of this year. NMFS Southwest Region expects 
to announce its finding also in the fall, 2011. Results will be 
announced in the Federal Register, as well as posted at http://
www.nwr.noaa.gov and http://www.swr.noaa.gov.
 Markey 18. (NMFS): Please describe what additional risks endangered 
        ESUs of salmon face if the factors affecting freshwater 
        survival of endangered salmon are not fully addressed, 
        especially since ocean conditions are variable and may revert 
        to less favorable conditions for salmon?
    Answer: Put simply, threatened and endangered salmon ESUs are 
unlikely to persist if the condition of their freshwater habitat is not 
improved and protected. The quality and quantity of freshwater habitat 
is particularly important to salmon during periods of poor ocean 
conditions. When marine conditions are poor due to warm ocean 
temperatures or decreased nutrient up-welling, salmon survival in the 
ocean is often low. During these times, high survival in freshwater 
becomes crucial to maintaining salmon abundance. If freshwater habitat 
is degraded, (e.g., high stream temperatures, low levels of woody 
debris, high level of contaminants, etc.) survival in the freshwater 
environment may be low as well. When poor freshwater and marine habitat 
conditions overlap in time, salmon populations can be driven to very 
low abundance and extinction risk can increase significantly. As noted 
in the response to Question 1, above, the distribution of salmon 
populations across a variety of habitat types is essential for the 
expression of diverse salmon rearing and migration behaviors. Such 
life-history diversity allows salmon populations to be more resilient 
to environmental change. For example, the diversity of life histories 
in Chinook salmon (e.g., variations in size and age at migration, 
duration of freshwater and estuarine residency, time of ocean entry) 
has been described as an adaptive strategy for spreading mortality 
risks in uncertain environments. For these reasons, NMFS' recovery 
plans for West Coast salmon and steelhead emphasize the importance of 
restoring and protecting freshwater habitat diversity, quality, and 
quantity. Populations with properly functioning freshwater habitat are 
at less risk during prolonged periods of unfavorable marine survival.
 Markey 19. (NMFS): It is generally accepted that hatcheries currently 
        play a vital role for West Coast salmon fisheries, but are not 
        a substitute for wild salmon runs. Please discuss the 
        importance of wild salmon runs in building a sustainable, long-
        term salmon fishery, and the benefits that wild runs provide to 
        fishing communities.
    Answer: Hatchery programs were initiated for fishery enhancement 
purposes as wild salmon runs became depleted, and as mitigation for 
habitat loss resulting from the construction of dams and other 
migration barriers. Although hatchery programs may provide near-term 
benefits to abundance and productivity while habitat degradation and 
other threats are addressed, over the long term, hatchery fish cannot 
adequately replace the role of well-distributed and diverse wild salmon 
populations in supporting healthy ecosystems, sustainable fisheries, 
vibrant coastal communities, and the meaningful exercise of tribal 
treaty rights and cultural practices. Despite considerable investments 
in the hatchery production of salmon and steelhead, there are 
dramatically fewer fish returning than was historically the case and 
annual returns vary considerably. Long-standing evolutionary theory and 
emerging empirical evidence suggest that hatchery operations can 
undermine the diversity and productivity of nearby wild populations if 
not properly operated. Moreover, hatcheries are dependent upon ongoing 
infusions from the wild populations to maintain their own productivity 
over time. Fisheries dependent upon genetically and behaviorally 
homogeneous hatchery-produced salmon are more vulnerable to periods of 
poor ocean conditions and have experienced significant limits on 
harvest and, in some cases, fishery closures.\3\ In contrast, current 
research demonstrates that well-distributed wild salmon populations 
with diverse life histories demonstrate more resiliency to 
environmental change and can support more prolific and sustainable 
fisheries.\4\ Pacific coastal and inland communities whose economies 
rely on sustainable salmon fisheries, in turn, benefit from a reliable, 
sustainable wild salmon product that demands a market premium.
---------------------------------------------------------------------------
    \3\ The 2007 and 2008 closures of West-coast Chinook salmon 
fisheries provide an example. The long-standing and ongoing degradation 
of freshwater and estuarine habitats and the subsequent heavy reliance 
on hatchery production were likely contributors to the collapse of the 
fisheries during a period of poor ocean conditions. Over 150 years of 
degradation and simplification of freshwater and estuary habitats have 
changed Central Valley Chinook salmon from a highly diverse collection 
of numerous wild populations to one dominated by fall-run Chinook 
salmon from four large hatcheries. Naturally-spawning populations of 
fall Chinook salmon are now genetically homogeneous in the Central 
Valley, and their population dynamics have been synchronous over the 
past few decades
    \4\ Schindler, D.E., R. Hilborn, B. Chasco, C.P. Boatright, T.P. 
Quinn, L.A. Rogers, M.S. Webster. 2010. Population diversity and the 
portfolio effect in an exploited species. Nature 465:609-613. Available 
on-line at: http://viewer.zmags.com/publication/5faee868#/5faee868/4
    Hilborn, R., Quinn, T.P., Schindler, D., and Rogers, D.E. 2003. 
Biocomplexity and fisheries sustainability. Proceedings of the National 
Academy of Sciences 100: 6564-6568.
    Hilborn et al. 2003. Biocomplexity and fisheries sustainability. 
Proceedings of the National Academy of Sciences 100: 6564-6568.
---------------------------------------------------------------------------
    In several of NMFS' recovery plans, the state and tribal 
governments and local stakeholders are embracing ``broad sense'' goals 
in excess of the levels needed for ESA delisting. These broad sense 
goals call for enough wild salmon to provide for sustainable 
recreational, commercial, and tribal treaty and trust fisheries, as 
well as for other ecological, cultural, and social benefits.
 Markey 20. (NMFS): Please discuss the ways that NMFS has provided for 
        public participation during the consultation process with EPA 
        in each of the four completed biological opinions for West 
        Coast salmon as well as public participation during the 
        upcoming biological opinions which will be completed in the 
        next several years. How have these efforts exceeded what is 
        normally afforded to the public during a typical consultation 
        with a federal agency?
    Answer: NMFS issues draft biological opinions to EPA. EPA has 
provided opportunity for public comment on each of these consultations. 
In addition, NMFS meets with the applicants for each consultation to 
seek the applicants' input into the biological opinions. NMFS has held 
stakeholder workshops on these biological opinions and has participated 
in one grower-sponsored workshop at the invitation of the growers. 
Because interagency consultation is not a rulemaking process, NMFS does 
not typically seek public comment on its draft biological opinion. The 
process NMFS and EPA have engaged in to seek public input into these 
pesticides consultations provides substantially more opportunity for 
public participation than is available in most ESA consultations.
 Markey 21. (NMFS): What steps has NMFS taken to refine and improve the 
        consultation process, taking into consideration lessons learned 
        as each Biological Opinion is completed?
    Answer: As NMFS has completed each consultation, it has refined its 
approach to the consultation process and has taken steps to engage 
applicants in the process early in the consultation. NMFS issues draft 
biological opinions to EPA. EPA has provided opportunity for public 
comment on each of these consultations. In addition, NMFS meets with 
the applicants for each consultation to seek the applicants' input into 
the biological opinions as time and staffing allowed, given the very 
tight court ordered schedules. Because interagency consultation is not 
a rulemaking process, NMFS does not typically seek public comment on 
its draft biological opinion. The process NMFS and EPA have engaged in 
to seek public input into these pesticides consultations provides 
substantially more opportunity for public participation than is 
available in most ESA consultations. Over the course of these 
consultations, NMFS, EPA, the states, the growers and the applicant 
community have all become more mutually educated into the issues and 
perspectives of each.
 Markey 22. (NMFS): Please describe the average workload for NMFS 
        employees who are responsible for completing endangered species 
        consultations. Are additional resources needed that would allow 
        NMFS to complete consultations in a timely manner?
    Answer: NMFS consults on a variety of federal actions that vary in 
degree of complexity and geographic scope. Most consulting biologists 
are working on multiple consultations at any given time. Although NMFS 
consults on federal actions that are on known schedules, most requests 
for consultations cannot be predicted. These factors affect staff 
workload and completion times. NMFS has 6 FTEs dedicated to 
consultations on EPA FIFRA registrations, which allow the application 
of chemicals for multiple agriculture and non-agricultural purposes 
over large areas. In addition to preparing the biological opinions, 
those staff must also work on preparing for litigation, preparing for 
and traveling to meet with stakeholders and participate in workshops, 
and must respond to multiple requests for information related to these 
consultations. With this level of staffing, NMFS will not be able to 
handle the anticipated increase in consultations coming from EPA's 
registration review programs. NMFS anticipates approximately 40 
additional FTEs would be needed to meet future EPA FIFRA consultations. 
Approximately $6 million per year would be needed to support these 
FTEs, for salary, benefits, as well as for overhead costs such as 
space, equipment, supplies and travel.
 Markey 23. (NMFS): Does Section 1010 of the 1988 Amendments to the 
        Endangered Species Act place any new statutory obligations on 
        the NMFS? Does Section 1010 afford pesticide manufacturers any 
        special rights that are not typically afforded to the general 
        public during the consultation process?
    Answer: Section 1010 of the 1988 Amendments to the ESA (Public Law 
100-478, Oct. 7, 1988) require EPA to work jointly with USDA and the 
Department of the Interior to identify appropriate alternatives for 
implementing a program to protect listed species from pesticides, while 
allowing agricultural, food and fiber commodity production to continue. 
The amendments require EPA to investigate the best available methods to 
develop maps, alternatives to mapping, and to identify alternatives to 
prohibitions on pesticides use. The amendments also require EPA to 
inform and educate fully those engaged in agricultural production of 
the elements of any proposed pesticide labeling program and to provide 
an opportunity to comment on the elements of such a program. The 
amendments do not place any new statutory obligations on NMFS, nor do 
they afford pesticide manufacturers any special rights in the 
consultation process. However, many manufacturers may qualify as 
applicants to these consultations.
 Markey 24. (USDA): In the USDA's 2003 economic analysis referenced in 
        your testimony, which was originally prepared for the Court in 
        Washington Toxics v. U.S. Dept. of Interior, you provided an 
        estimate of the economic impacts of imposing no-spray buffers. 
        Please explain whether or not this economic analysis account 
        for the full set of costs and benefits of restricting 
        pesticides including:
          Economic benefits to farmers that already engage in 
        alternative pest-control approaches;
          Economic benefits to organic farmers;
          Economic benefits to commercial or recreational 
        fishermen;
          Water treatment costs;
          Healthcare costs to farm workers that might be 
        exposed to pesticides; and
          General reductions in healthcare costs to members of 
        the public, including children who are exposed to pesticides.
    Answer: The 2003 economic analysis did not consider benefits to 
organic farmers or farmers engaging in alternative pest control 
approaches, benefits to fishermen, water treatment costs, or healthcare 
costs to farm workers or the general public. The analysis assumed land 
in the no-spray buffers would be retired from production resulting in 
lost production and sales revenues.
 Markey 25. (USDA): In the USDA 2003 economic analysis prepared for the 
        Court in the Washington Toxics case, you provided an estimate 
        of the economic impacts of imposing no-spray buffers. Was this 
        analysis limited to a worst case scenario that assumed that in 
        the absence of spraying a particular pesticide, the farmland 
        would lay fallow? During the time that this analysis was 
        prepared how likely was it that this worst case scenario would 
        occur? Did the analysis take into account the hundreds of other 
        registered pesticides that could have been used in the West 
        Coast states to treat infestations?
    Answer: The analysis assumed that the 54 pesticide active 
ingredients in the Washington Toxics case are critical to crop 
production, alternatives result in unacceptably high yield losses and 
that the loss-minimizing strategy for growers would be to retire the 
land in the buffer strips. The likelihood of this outcome for every 
potential crop was unknown. The likelihood that an alternative pest 
control measure could be used effectively in the buffer parcels was 
also unknown.
 Markey 26. (USDA): In 2009, Washington State agriculture received over 
        $720 million in subsidies and $24 million in disaster relief. 
        When the USDA calculates the economic benefits and costs of 
        utilizing a particular pesticide, does it also take into 
        account the subsidies that agricultural entities receive from 
        the federal government in those cost/benefit analysis? If yes, 
        please describe how. If not, why not?
    Answer: Agricultural subsidies would not be considered in cost-
benefit analyses of pesticides unless program eligibility or the size 
of payments depended on pesticide use. Farm program payments to 
producers are not related to a grower's use of pesticides. The expected 
benefits from pesticide use in agricultural production are yield and 
crop quality. Cost-benefit analyses of pesticides are generally limited 
to primary effects but may consider secondary effects. Primary impacts 
are yield, quality, and cost of the pesticide and its application. 
Secondary impacts which may be measurable are effects on crop prices 
from changes in aggregate production, effects on non-target organisms, 
and effects on environmental quality including human health.
 Markey 27. (USDA): According to the 2009 USDA Economic Research 
        Service report Emerging Issues in the U.S. Organic Industry, 
        ``significant price premiums exist for fresh organic produce 
        and organic milk, the two top organic food sales categories, 
        compared with conventional products.'' Organic agriculture also 
        maintains ``the public-goods nature of environmental services, 
        such as biodiversity and water quality.'' According to the 
        report, the price charged for conventionally grown agricultural 
        products does not ``reflect the true social value of these 
        services.'' In the USDA 2003 economic analysis there is no 
        mention of public goods, such as biodiversity and water quality 
        protection, are these factors important in determining the 
        costs of applying pesticides? Did the USDA also take into 
        account the social value of ecosystem services in the 2003 
        analysis?
    Answer: The social value of ecosystem services was not part of the 
2003 economic analysis.
 Markey 28. (USDA): Does the USDA's statistics from the National 
        Agricultural Statistics Service (NASS) shed light on whether 
        organic farms have higher or lower net income than conventional 
        farms? If so, please describe the differences in income 
        generated on conventional and organic farms in the most recent 
        year for which the USDA has sufficient data.
    Answer: Some insight into the financial performance of organic and 
conventional farms can be derived from the Agricultural Resource 
Management Survey (ARMS). The ARMS data include detailed farm financial 
information, such as farm income, expenses, assets, and debt, as well 
as farm and operator characteristics on certain organic and 
conventional farms. Analysis of milk producers in 2005 found organic 
farms had net farm income of $61,732 compared to $109,451 for 
conventional farms. In 2006, organic soybean producers had net farm 
income of $91,099 compared to $72,874 for conventional. In 2009 organic 
wheat producers has net farm income of $44,382 compared to $67,433 for 
conventional. Relative returns depend on the relative commodity prices 
in each year. For example conventional soybean prices in 2006 were less 
than $7 per bushel, but have since moved above $13 per bushel.
 Markey 29. (USDA): Do spray buffers provide habitat for beneficial 
        insect species, including natural crop pollinators and 
        predatory insects, birds, and mammals that control insect 
        pests? Do spray buffers also work as low-cost control measures 
        that reduce the impacts of pesticide drift and pesticide run-
        off into nearby water-bodies?
    Answer: Spray buffers are areas where no pesticide spray is 
permitted. This type of buffer may include vegetated areas between the 
field and other land uses. These no-spray buffers may provide habitat 
for beneficial insects, pollinators, or predators of insect pests as 
well as potentially providing habitat for insect pests. All vegetated 
field buffers, regardless of purpose, may attract beneficial insect 
species, pollinators, and predatory insects, birds, and mammals. The 
no-spray buffers implemented in the Washington Toxics case were not 
designed to provide habitat and may include unsprayed areas of 
agricultural fields. In Washington Toxics, the no-spray buffers were 
established to protect endangered salmon and their habitat. No-spray 
buffers may reduce pesticide drift and run-off from reaching nearby 
water-bodies, but whether buffers perform this function is dependent 
upon their design. Vegetated field buffers may be valuable in further 
reducing the potential impacts of pesticide drift and runoff into 
nearby water. Vegetated buffers are not necessarily low-cost control 
measures as they take land out of production, but producers understand 
their value.
 Gosar 1. (NMFS/FWS/EPA): Is there some way to merge the ESA required 
        assessment and the required EPA risk assessment into one 
        program to streamline the registration process for pesticides?
    Answer: EPA and the Services believe that their risk assessment 
methodologies should be closely aligned so as to promote the quality of 
the scientific foundations of these assessment and to promote 
regulatory efficiency, timeliness and predictability. The agencies do 
not, however, believe that the risk assessment process and the ESA 
assessment process should be merged into one program. The agencies 
share the common goal of ensuring that pesticide use is not likely to 
jeopardize endangered or threatened species or adversely modify their 
designated critical habitat. To that end, EPA performs an extensive 
evaluation of the risks for every pesticide product, which includes a 
careful consideration of the potential for adverse effects on non-
target animals and plants. EPA's risk assessment process could be 
modified to include a rigorous assessment of effects to endangered 
species. Incorporation by EPA of a more rigorous assessment of 
endangered species would streamline the ESA consultation process. EPA 
and the Services believe EPA should perform the assessment of the 
ecological risks of a pesticide so that the Services can use EPA's 
assessments to quickly complete a consultation on EPA's proposed 
regulatory decisions. The three agencies believe that reaching 
agreement on the scientific methodology used to assess the ecological 
risks of pesticides is a critical step that will support the 
development of the transparent, efficient, and effective consultation 
process that everyone seeks.
 Gosar 2. (NMFS): Is it possible that the vast expansion of species 
        listed on the endangered species list (currently over 1800 
        plants and animals vs. 109 when first established) has created 
        a situation where consultations with other agencies cannot be 
        completed in a timely manner?
    Answer: Yes. The large number of species now listed does create 
additional challenges for national actions such as pesticide 
registrations. However, the principal issues that have delayed these 
specific consultations are discussions pertaining to the interpretation 
of scientific information and how to deal with scientific uncertainty 
under FIFRA and ESA.
 Gosar 3. (EPA/NMFS): What is the connection between this consultation 
        process and the Clean Water Act regulations? What impact will 
        the expansion of jurisdiction proposed by EPA under the Clean 
        Water Act in the recently released guidance document have on 
        this process? If we are unable to complete consultations 
        between agencies now, will the expanded role of EPA in the 
        Clean Water Act further complicate this situation?
    Answer: Under the ESA section 7, federal agencies are required to 
ensure that their actions are not likely to jeopardize the continued 
existence of threatened and endangered species or adversely modify 
their designated critical habitat. This provision applies to EPA's 
actions under the Clean Water Act (CWA), including the issuance of 
permits under the National Pollution Discharge Elimination System 
(NPDES) program. In 2010, EPA issued a proposed Pesticide General 
Permit (PGP) that would cover certain application of pesticides in or 
over, including near, waters of the United States. Specifically EPA's 
PGP would cover pesticide applications in those jurisdictions for which 
states did not exercise delegated authority to administer the NPDES 
program under the CWA. Currently, EPA administers the entire NPDES 
program in the District of Columbia, Massachusetts, Idaho, New 
Hampshire, New Mexico, Oklahoma, and Alaska. EPA also administers the 
NPDES program for most territories, tribal lands, and certain federal 
facilities. These jurisdictions comprise the ``action area'' for the 
PGP consultations.
    EPA has prepared and submitted to FWS and NMFS a Biological 
Evaluation to initiate consultations for the PGP. NMFS is in 
consultation with EPA on the PGP and on June 17, 2011, NMFS submitted 
to EPA a draft Biological Opinion. EPA took public comment on the RPAs 
in the draft opinion until July 25, 2011.
    There is no direct connection between the NMFS consultations on 
EPA's regulation of specific pesticides under FIFRA and the ongoing 
consultation on the PGP. There is, however, some overlap between the 
action areas (e.g., Idaho) and some of the pesticide uses (e.g., 
malathion use in mosquito control) considered in the different 
consultations.
    EPA recently released the ``Waters of the U.S. Draft Guidance'' to 
provide clearer, more predictable guidelines for determining which 
water bodies are protected by the Clean Water Act, available at http://
water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm. EPA expects 
that this proposed guidance will have no effect on the consultation 
concerning the PGP or other consultations concerning EPA actions under 
the CWA.
 Schrader 1. (NMFS): What actual evidence is there of Salmon/fish being 
        killed as a result of pesticide use under FIFRA?
    Answer: EPA maintains a database of incident reports, which include 
some reports of fish kills. Kills have been reported for a range of 
pesticides, including some of the active ingredients considered in the 
consultations NMFS has completed. Reported kills affect a range of 
species, and sometimes include salmonids.
    The current incident reporting system, while useful, has some short 
comings. If adverse effect information (such as a fish kill) is 
reported to the registrant, the registrant is obliged to report that 
information to EPA. However, as far as NMFS is aware, there is 
currently no requirement for an individual who observes a fish kill 
associated with or potentially associated with pesticide to report it 
to the registrant. Fish kills may be reported to state, local, or 
tribal governments, which may or may not a) investigate them or b) 
report them to EPA for inclusion in the incident database. When 
incidents are investigated it is not always possible to positively 
identify the cause(s), although sometimes it is reasonable to link it 
to a nearby pesticide application.
    In short, many reports of incidents associated with a specific 
pesticide are usually an indicator of a problem, but a lack of incident 
reports does not necessarily indicate the reverse. If the pesticide 
affects aquatic invertebrates or very small fish (including larval or 
juvenile stages), the dead organisms may not be observed.
    NMFS has attempted to address some of the current shortcomings in 
the reporting system with a Reasonable and Prudent Alternative 
delineating additional reporting.
 Schrader 2 (NMFS): Is there any evidence in the field of deformities 
        in the Salmonid population as a result of properly used 
        pesticides?
    Answer: NMFS is not aware of specific studies linking salmonid 
deformities to a specific pesticide; however, we do note that such 
cases do exist in aquatic systems. An example of this is sexual 
reversal (``imposex'') in mollusks caused by the use of tri-butyl-tin 
(TBT) as boat bottom paint.
    Linking a specific deformity noted in the field to a specific 
pesticide and then determining if that pesticide was used properly is 
exceptionally difficult. It is not a one-step process, and generally 
requires several lines of evidence, including laboratory studies to 
determine the etiology of the deformity, a fish survey in the field to 
determine incidence of the deformity, and an analysis of contaminant 
inputs in the watershed to evaluate whether that pesticide is present 
and in what quantities. Typically such a suite of studies is not 
initiated unless distinct deformities have been noted in a specific 
population.
    Some deformities caused by pesticides and/or other contaminants are 
externally obvious, such as spinal twists and eroded or missing fins. 
These deformities might be noted in seasonal fish surveys, or possibly 
even by casual anglers. Other deformities, such as malformed organs, 
modifications in biochemical pathways, or genetic mutations would not 
be obvious unless the fish was necropsied. Internal deformities also 
may never appear in an adult fish population, but instead appear as 
reduced abundance, because the fish with deformities never mature past 
the larval stage.
    Thus, while reports of deformities in salmonid populations 
associated with pesticide use is an indicator of a problem, a lack of 
such reports does not necessarily indicate they do not occur.
    NMFS considers all available information, including laboratory 
studies, and field studies to evaluate whether deformities could be 
caused by pesticide use.
 Schrader 3. (NMFS): Have there been any cases of outbreaks of human 
        illness as a result of eating pesticide laden fish?
    Answer: (EPA) Although there are advisories against consuming fish 
due to the possible presence of residues of some cancelled pesticides, 
EPA is not aware of any outbreaks of human illness attributed to eating 
fish with pesticide residues.
 Schrader 4. (NMFS): Are your recommendations based on modeling or 
        actual field sampling?
    Answer: NMFS recommendations are based on information from models, 
field sampling and studies, and laboratory studies. When NMFS does the 
exposure analysis we consider the range of potential environmental 
concentrations, both modeled concentrations (estimated environmental 
concentrations or EECs) and concentrations measured in the environment 
through ambient and targeted monitoring programs (measured 
environmental concentrations or MECs). When NMFS does the response 
analysis, it is based primarily on laboratory studies, although NMFS 
also considers field studies when they are available, especially those 
which report population or community level effects. Because the 
majority of toxicological information available relates to effects on 
individuals, it has used models to link that information on individual-
level effects to predict population-level effects for the 
cholinesterase-inhibiting active ingredients considered in the first 
three opinions. Buffer widths and maximum concentration levels (MCLs) 
in the RPAs and reasonable and prudent measures were developed using 
modeling programs (AgDrift and PRZM-EXAMs) to develop estimated 
environmental concentrations for particular application rates and 
methods. AgDrift and PRZM-EXAMs are the same programs used by EPA. 
Because application rates and methods are site-specific, it would be 
exceptionally difficult, if not impossible, to develop buffer widths 
and/or maximum concentration levels based on field sampling.
 Schrader 5. (NMFS): What assumptions are made from modeling? If proper 
        instructions are followed on pesticide application, would 
        modeling yield same results?
    Answer: Based on context, NMFS assumes this question refers to the 
models which predict estimated environmental concentrations, such as 
PRZM-EXAMs and AgDrift, rather than the salmonid population model.
    Modeling inputs for PRZM-EXAMs and AgDrift include information on 
the fate properties of the active ingredient and information on how the 
active ingredient is applied. The critical underlying assumption for 
both these models is that the receiving water body is next to the use 
site, and that the water body is subject to runoff and/or spray drift 
containing the active ingredient. Modeling inputs include the 
application rate, method, and interval directly from the labels, thus 
water concentrations estimated from the models should be similar to 
what occurs in the environment if label instructions are followed and 
other conditions (e.g., weather, landscape, and hydrology) correspond 
to the conservative assumptions used by EPA. EPA describes 
concentrations generated by PRZM-EXAMS as a ``conservative, high-end 
estimate.'' The estimates of pesticide concentrations in water 
generated by PRZM-EXAMS are consistently higher (often by orders of 
magnitude) than residue levels detected through monitoring. 
Nonetheless, NMFS believes PRZM-EXAMs, as implemented by EPA, 
underestimates concentrations of active ingredients in small, low-flow 
water bodies that serve as important habitat for juvenile salmonids. In 
other situations, NMFS believes PRZM-EXAMs estimated environmental 
concentrations are a reasonable estimate, although they do not reflect 
the highest concentrations, nor account for additional stressors other 
than the active ingredient.
 Schrader 6. (NMFS) Do you ever randomly sample fish in streams near 
        major agricultural enterprises where pesticides are used? (e.g. 
        Hood River Orchard, CAFO Operations)
    Answer: NMFS has not commenced any specific sampling. NMFS's 
science centers may conduct specific sampling activities in these types 
of freshwater systems episodically as part of their general scientific 
investigations into salmon habitats in its West Coast salmon science 
programs, but these field investigations are not part and parcel of any 
systematic water quality or habitat monitoring program designed or 
conducted by NMFS as part of its work with EPA on FIFRA consultations.
 Ellmers 1. (FWS) This hearing is of particular interest to me as the 
        Town of Garner in my district is battling with the EPA and the 
        Fish and Wildlife Service to build a highway. Halting the 
        project is a dwarf wedge mussel, which is protected under the 
        Endangered Species Act. Because a handful of the mussels were 
        found in the path of the proposed highway, an alternate route 
        must be considered, one that would not disturb the mussels. The 
        selected alternative would not disturb any mussels because it 
        will go right through the Town of Garner, slicing it in half. 
        Countless homes, communities, and businesses would be destroyed 
        and Garner would lose millions in investments and hundreds of 
        jobs.
 It is my understanding that a letter is now being circulated by the 
        Southern Environmental Law Center threatening legal action, as 
        the state legislature passed a law to prevent the alternative 
        route from going forward. Environmental groups like the 
        Southern Environmental Law Center routinely sue the government 
        on environmental issues because they get awarded attorney's 
        fees--even if they are only partially successful. The Federal 
        Government is literally paying someone to sue to force it to 
        act in a way it has decided is not in its best interests. This 
        is nonsensical and a waste of taxpayer dollars.
 In your opinion, what can we do to stop these types of lawsuits?
    Answer: Plaintiffs are only entitled to litigation fees when they 
are a prevailing party. The best approach to avoid paying attorney fees 
is for the government to comply with the statutes and prevail in court. 
FWS regularly works with project proponents to develop modifications to 
proposals to avoid and minimize negative impacts to listed species, 
allowing projects to move forward in a manner consistent with the ESA.
 Ellmers 2. (FWS): Should we be contemplating repealing them one by one 
        as each law comes up for reauthorization?
    Answer: The citizen-suit provisions of environmental statutes such 
as the ESA are an important tool to help ensure that our government 
implements the laws and does so in a consistent manner. The FWS strives 
to consult with applicants early in the planning process, allowing 
questions to be raised and resolved to the maximum extent possible.
 Conaway 1. (FWS): According to USFWS employees, the Service is 
        required to utilize the ``best available science'' when making 
        listing determinations. At a recent hearing in Texas, when 
        asked to clarify what counts as ``best available science,'' a 
        USFWS employee stated that ``We know it's the best available 
        science, because it is the science that is available.'' Could 
        you please expand on that logic? Is it your agency's position 
        that all scientific studies are equally rigorous? As I 
        understand it, the ``best available data'' surveyed less than 
        1% of lizard's the habitat in Texas. Does your agency consider 
        a lack of data to be a barrier to scientific understanding? Is 
        there a threshold or a yardstick that your agency uses to 
        determine the soundness of the data and science used in a 
        listing determination? Does your agency ever exclude available 
        science or data from a listing proposal? If so, for what 
        reasons?
    Answer: The Service is required to use the best available 
scientific and commercial data available to support our listing 
determinations under the ESA. We gather and evaluate biological, 
ecological, and other information to ensure it is reliable and 
credible. We strive to use primary and original sources of information 
as the basis for our listing decisions. These sources include peer 
reviewed literature, grey literature (unpublished scientific reports), 
and personal communications with experts on the species or threats we 
are evaluating. We do not exclude available relevant science in our 
determinations; however, when the science is not definitive or the 
conclusions are unclear, we explain the uncertainties surrounding our 
interpretation and use of the information. In many cases, we do not 
have all the science that would be ideal, but we review and apply all 
known relevant science that is available in our listing determinations. 
One reason for the comment period and peer review on our proposed rules 
is to allow for interested parties and experts to submit information 
that we may have missed or that we were not aware of. This information 
will be evaluated and used in our final rule.
    Listing determinations focus on threats to the species and its 
habitat. As such, population estimates can inform the status of the 
species across their range, but these numbers are only one facet of the 
information we use to evaluate the threats to the species. It is our 
understanding that researchers from Texas A&M University will be doing 
surveys for lizards and habitat delineation in Texas. We will include a 
summary of this information in our final rule, if it is available.
 Conaway 2. (FWS): Following the listing of the Concho Water Snake, a 
        ten-year long assessment of the snake was conducted, which 
        showed the snake never had been threatened or endangered--it 
        was simply misunderstood and poorly studied. Since the 
        publication of that study in 1996, your agency has demanded an 
        additional 12 years of study on the Snake. What is the 
        criterion the USFWS uses to judge the data for responding to a 
        delisting proposal? Is there a point where further research no 
        longer enhances scientific understanding? Do you believe that 
        the difference in scientific standards for listing and 
        delisting species confuses and angers the public?
    Answer: The 10-year study of the Concho water snake that ended in 
1996 was conducted by the Colorado River Municipal Water District. The 
study provided much new information about the biology and ecology of 
the snake, including that it could persist in reservoir environments. 
However, a determination of whether or not a species is warranted for 
listing as threatened or endangered under the ESA considers whether 
there are sufficient threats (under the five factors identified in the 
ESA that put a species in danger of extinction. Only after we consider 
the best available information and determine that the species no longer 
warrants protection under the ESA, is a species considered for 
delisting. There is no difference in the scientific standards for 
listing and delisting species under the Act. In the case of the Concho 
water snake, the Service is evaluating a host of potential threats to 
the snake to ensure that none of them are continuing to result in the 
snake likely becoming endangered in the foreseeable future.
    The ESA requires that we monitor the status of all species that 
have recovered and been removed from the list of threatened and 
endangered species for not less than five years. The Service has 
drafted a post-delisting monitoring plan for the Concho water snake for 
implementation should the snake be removed from the list of threatened 
species. The current plan envisions monitoring the snake for 13 years 
following delisting. The Service found this length of monitoring 
necessary to ensure that the snake and its habitat remain secure from 
the risk of extinction following the delisting. This will give more 
time to evaluate the effects of ongoing reservoir operations on stream 
flow rates and snake populations. This longer time period of post-
delisting monitoring is important because O.H. Ivey Reservoir has only 
been in place for about 20 years--a relatively short timeframe. This 
monitoring will be funded by the Service in cooperation with the Texas 
Parks and Wildlife Department.
 Conaway 3. (FWS): Recently, my office sent you a letter regarding the 
        longstanding delays in delisting the Concho Water Snake. Thank 
        you for your reply; I look forward to seeing the final 
        determination this summer. In my discussions with the 
        scientists in your agency, they have made it abundantly clear 
        that they support removing this snake from the endangered 
        species list. In my letter, I noted that it has been almost 
        three years since the Service first proposed to delist the 
        Concho Water Snake, even though the delisting has the vocal 
        support of the scientists who have the expertise to make these 
        decisions. Do you think that the Service's constant and 
        consistent delays in delisting the Concho Water Snake or other 
        recovered species have damaged its credibility in the eyes of 
        landowners, the affected municipalities, and the American 
        public? What steps are you taking to ensure that you publish 
        the Final Determination by the end of August? What resources 
        and staff do you have dedicated to ensuring that this deadline 
        is met?
    Answer: We regret that the final determination on whether to delist 
the Concho water snake has taken longer than we hoped. We have a team 
of dedicated staff working to complete the final determination and 
intend to have it completed this summer. While we strive to make these 
kinds of decisions in a timely manner, it is equally important that the 
decisions be fully evaluated and all considerations be examined and 
vetted before determinations are made. It is imperative that our 
findings be based on the best available science so they may be legally 
defensible in the event they are challenged in court. We appreciate 
your patience as we complete the final determination regarding 
delisting of the snake.
 Conaway 4. (USDA): Before deciding to abruptly terminate the Current 
        Industrial Reports did the Census Bureau consult with USDA to 
        determine how the reports are being used and the impact 
        discontinuing them would have on the ability to analyze and 
        anticipate market trends and price volatility for key 
        agricultural commodities and products, including wheat and 
        wheat flour, cotton and cottonseed oil and meal, and oilseeds, 
        vegetable oils, protein meal, and biodiesel? If so, please 
        provide comments and feedback received in those consultations.
    Answer: Please note that this question and the remaining questions 
were referred to the Census Bureau for a response. Once the President's 
FY 2012 Budget was released in February 2011, the Census Bureau 
contacted over 30 CIR stakeholders (trade association and other 
government agencies such as the United States Department of 
Agriculture) and met with over 20 of them on June 15, 2011 to discuss 
the termination of the program and the possibility of restoring it on a 
limited basis as a reimbursable project. The Census Bureau provided 
cost estimates for over 20 surveys to the stakeholders and a schedule 
of termination for the program by the end of the fiscal year. Feedback 
and information is still being gathered from the attendees and other 
stakeholders to determine if any of these surveys will be conducted on 
a reimbursable basis.
    Prior to reallocating the funding for the reports, the Census 
Bureau consulted with the Bureau of Economic Analysis (BEA) to assess 
the impact on the National Accounts and quarterly estimates of Gross 
Domestic Product (GDP). The availability of manufacturing product class 
data from the Annual Survey of Manufactures (ASM) and the continued 
collection of detailed product information in the Economic Census and 
in the monthly trade statistics program will serve to mitigate the 
effect of discontinuing the CIRs
 Conaway 5. (USDA): Is the CIR program providing data that is 
        duplicative with other government surveys? Are there other data 
        sources that will match the detail and frequency of the CIR 
        program?
    Answer: The CIR program does not duplicate any other government 
surveys and there are no other government sources that produce data 
with the same detail and/or frequency. The Census Bureau publishes 
information on detailed manufacturing products on an annual basis at 
the product class level (i.e. a higher aggregation than the product 
level) for 121 categories through the Annual Survey of Manufactures 
(ASM). The 47 CIRs accounted for approximately 5400 product categories 
while the ASM has over 1700 product class categories. The consistency 
between the CIR and the ASM allows a data user to continue to monitor, 
evaluate, and understand the market. Because the ASM does not collect 
data on quantity, unit cost data on an annual basis will be lost. 
However, the Economic Census collects comparable data (value and 
quantity) for the manufacturing sector that will allow users to derive 
unit cost. Moreover, on balance the Census Bureau continues to measure 
the manufacturing sector (e.g. new orders, capital and IT investments, 
research and development, corporate profits, etc.) in far more detail 
than any other economic sector.
 Conaway 6. (USDA): Has there been any consideration to providing a 
        transition period rather than terminating the program with 
        virtually no advance notice and no consultation with private 
        sector and government subscribers?
    Answer: To reallocate the $4.1 million in funding to higher 
priority programs within the Census Bureau in FY 2012, the Bureau 
proposes to end the CIR program at the end of this fiscal year 
according to the schedule provided to stakeholders. The President's 
Budget was published in February 2011 which allows almost seven months 
for the Bureau to prepare data users for the end of the program. Once 
the proposal was public, the Bureau contacted and met with data users 
to offer them options and prepare them for the transition
 Conaway 7. (USDA): What are the anticipated budget savings arising 
        from the program's elimination. Also, what is the total 
        economic activity generated by the sectors covered in the 
        report?
    Answer: The termination of the CIR Program with the FY 2012 budget 
is the result of a review of both ongoing and cyclical programs 
necessary to meet the Census Bureau's core mission and required 
difficult choices in balancing program priorities and fiscal 
constraints. This review resulted in the termination of the Current 
Industrial Report in order to fund higher priority programs within the 
Census Bureau. The cost savings from eliminating this program are $4.1 
million. The manufacturing sector as a whole accounts for about 11 
percent of GDP.
                                 ______
                                 
    Mr. Lucas. Thank you, Doctor.
    The Chair now recognizes Dr. Bradbury for your testimony.

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

    Dr. Bradbury. Good morning Chairman Hastings, Chairman 
Lucas and Ranking Member Markey and Ranking Member Peterson as 
well as the members of the Committees.
    I am pleased to appear before you today to discuss how EPA 
regulates pesticides under the Federal Insecticide, Fungicide, 
and Rodenticide Act and the steps EPA is taking to protect our 
nation's threatened and endangered species under the Endangered 
Species Act.
    EPA's Office of Pesticide Programs is charged with 
administering FIFRA, which permits the registration of 
pesticides that are sold or distributed in the U.S. so long as 
the pesticide's use 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 requires EPA to weigh 
these types of benefits against the potential harm to the 
environment that may result from using a pesticide. EPA has the 
authority to restrict the way a pesticide may be used to lower 
its risks. And EPA may allow the use of a pesticide only if the 
benefits outweigh the remaining risks.
    Over the last 30 years, EPA has developed a well regarded 
program for evaluating pesticide safety and making regulatory 
decisions. EPA's regulatory processes are transparent and 
provide for multiple opportunities for the public to review our 
work, provide comments before we make decisions. EPA's high-
quality risk assessments use the best available peer reviewed 
scientific data and models to estimate potential risks to human 
health, to look at the fate of pesticides in aquatic and 
terrestrial environments and to look at the risk to broad 
categories of wildlife and plants.
    When we encounter significant scientific challenges, we 
turn to the FIFRA Advisory Panel, which is a Federal advisory 
committee for independent, scientific peer review. Pesticide 
regulatory actions are also subject to the ESA, which requires 
all Federal agencies to ensure that their actions are not 
likely to jeopardize threatened or endangered species or 
destroy or adversely modify their critical habitat.
    We believe FIFRA provides the agency with the authority to 
protect endangered species consistent with the directives of 
ESA. As part of a thorough ecological risk assessments, EPA 
determines whether the use of a pesticide may affect an 
endangered or threatened species and any designated critical 
habitat.
    Under the current ESA regulations, EPA consults with the 
Services if a potential effect is identified and the Services 
produce a biological opinion with their view of whether a 
pesticide's registered use is likely to jeopardize the species 
or destroy or modify critical habitat.
    As a result of an EPA risk assessment or formal 
consultation with the Services, EPA may change the pesticide's 
use instructions and conditions that are specified on the 
product's labeling. EPA has the authority to tailor any 
necessary restrictions to specific geographic areas rather than 
nationwide.
    EPA has been sued under the ESA more than a dozen times 
over the past ten years, challenging the registration of 
hundreds of pesticides. While many of these cases were 
dismissed, several required EPA to make effects determinations 
for numerous pesticides and species, and as appropriate to 
consult with the Services.
    Both EPA and the Services are working with the Department 
of Justice on new litigation which could significantly impact 
pesticide registration actions generally and the development 
and implementation of biological opinions for the affected 
pesticides.
    Developing an ESA program for pesticides has presented many 
challenges, both scientific and procedural. In March 2011, on 
behalf of the Departments of Agriculture, Commerce, and 
Interior, EPA requested that the National Academy of Sciences 
convene a committee of independent experts to review a suite of 
very difficult, cutting edge scientific and technical issues 
that have arisen as a result of our collective responsibilities 
under the ESA and FIFRA.
    EPA has long recognized that along with using the best 
available science, enhancing the transparency of our processes 
and providing meaningful opportunities for public participation 
are critical for the success of our Endangered Species 
Protection Program. EPA is committed to ensuring that every 
step of the ESA process provides opportunity for public 
participation so that all stakeholders can understand the basis 
of our actions and provide information to help improve risk 
assessments and risk management decisions.
    In conclusion, EPA's pesticide program is committed to 
fulfilling our ESA obligations without unduly burdening the 
production of food and fiber products for this country. We are 
committed to working with our Federal partners to build a more 
efficient ESA consultation process that is grounded in the best 
available peer reviewed science, that produces timely, 
consistent, and transparent regulatory decisions and that 
provide for meaningful public participation opportunities.
    I am happy to answer your questions today. However, there 
may be issues where I will have to refrain from commenting 
because the government is actively engaged in litigation. And 
with that understanding, I will make every effect to be as 
forthcoming as I can in response to your questions. Thank you.
    [The prepared statement of Dr. Bradbury follows:]

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

Introduction
    Good morning Chairman Lucas and Chairman Hastings, as well as other 
Members of the Agriculture and Natural Resources Committees. My name is 
Steven Bradbury. I have worked at the Environmental Protection Agency 
(EPA) in various positions since 1985, serving as the Director of the 
Mid-Continent Ecology Division in EPA's Office of Research and 
Development, Director of the pesticide ecological risk assessment 
division, and as Director of the division responsible for evaluating 
existing pesticides. I currently serve as the Director of the Office of 
Pesticide Programs. I am pleased to appear before you today to discuss 
how EPA regulates pesticides under the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA) and the steps EPA is taking to protect our 
nation's threatened and endangered species and their critical habitats 
under the Endangered Species Act (ESA). I will begin by describing our 
commitment to protecting the environment and how the principles of 
science and transparency are integral to EPA's program for regulating 
pesticides.
EPA's Program 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.'' 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 examines 
every pesticide product to ensure that it can be used in a manner 
consistent with the FIFRA standard.
    FIFRA also requires EPA to re-evaluate previously registered 
pesticides against contemporary scientific and safety standards. Under 
EPA's registration review program, all registered pesticides are re-
evaluated at least every 15 years to ensure that products continue to 
meet FIFRA's safety standards and that they are being lawfully marketed 
in our country. Of course, EPA can at any time take regulatory action 
to address newly identified risks.
    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.
    Over the last 30 years, EPA has developed a well-regarded program 
for evaluating pesticide safety and making regulatory decisions. EPA's 
high quality risk assessments consider the best available scientific 
data from a variety of sources, including from pesticide companies, 
other governments, or the published literature. EPA regulations require 
a rigorous battery of tests in order to gain approval for a pesticide, 
and these data requirements provide consistency across the EPA's risk 
assessments. 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 human health toxicity 
studies; 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. EPA has a public, well documented set of procedures that 
it applies to the use and significance accorded to all data utilized in 
regulatory decisions. Data generated in response to FIFRA requirements 
are conducted under, and the results evaluated in accordance with, a 
series of internationally recognized and harmonized scientifically 
peer-reviewed study protocols designed to maintain a high standard of 
scientific quality and reproducibility. Therefore, these data provide a 
high level of confidence that the observed effects are reliably 
associated with exposure to the particular pesticide in question.
    EPA is committed to consideration of other sources of data as well, 
including information submitted by the public as part of the regulatory 
docket of a Federal action under FIFRA, and data identified from the 
publicly available literature. In making the decision as to whether and 
how such data are incorporated into an ecological risk assessment EPA 
reviews the test methods employed and the conditions under which 
studies were conducted to assure a standard of scientific quality and 
reproducibility necessary to ensure confidence that the observed 
effects are reliably the manifestation of exposure to the particular 
pesticide in question.
    EPA uses data and models to conservatively estimate how much 
pesticide will remain in the environment after use and how those levels 
compare with levels that could harm humans or the environment. EPA uses 
public, externally peer-reviewed procedures to analyze data and models 
to produce its science-based risk assessments that guide our risk 
management decisions. EPA reaches its conclusions through a scientific, 
systematic, objective evaluation of relevant information that uses 
transparent, documented procedures at each step.
    EPA has authority to restrict the way a pesticide may be used to 
ensure that it meets statutory safety standards. Any restrictions on 
the use of a pesticide identified through registration or registration 
review as necessary for safe use appear on product labels. Examples of 
restrictions include reducing application frequency or rates, 
prohibiting certain application methods, establishing no-spray buffer 
zones around sensitive areas and water bodies, limiting use only to 
trained and certified applicators, or other restrictions. Our 
regulatory partners, i.e., the state agencies, have the lead for 
enforcing proper use of pesticides.
    If an EPA assessment identifies a risk of concern for a pesticide, 
pesticide registrants (i.e., manufacturers) will often agree to 
mitigate the potential risk by making appropriate changes to the way 
their pesticides may be used. If, however, companies do not voluntarily 
adopt risk mitigation measures, EPA must pursue administrative 
procedures to compel the changes. The process, referred to as 
``cancellation,'' starts with an independent, external, scientific peer 
review of the proposed regulatory restrictions by the FIFRA Scientific 
Advisory Panel, together with review by the U.S. Department of 
Agriculture (USDA) and the Department of Health and Human Services 
(HHS). If requested by a registrant, EPA must then conduct a formal 
adjudicatory hearing--an administrative trial with witnesses and 
testimony before an Administrative Law Judge (ALJ). Under FIFRA, 
registrants may ask the ALJ to refer questions of scientific fact to 
the National Academy of Sciences (NAS). Because the cancellation 
proceeding can be lengthy (often lasting three or more years before EPA 
reaches a final decision), FIFRA also authorizes EPA to suspend 
pesticide sale and use when needed to address an ``imminent hazard.''
Pesticides and Endangered Species
    Certain pesticide regulatory actions may also be subject to the 
requirements of the ESA. The ESA is administered by the U.S. Fish and 
Wildlife Service (FWS) and the National Oceanic and Atmospheric 
Administration's (NOAA) Fisheries Service (jointly referred to as the 
``Services''). The ESA requires all Federal agencies, in consultation 
with the Services, to ensure that their actions are not likely to 
jeopardize species listed as either threatened or endangered (``listed 
species'') or to destroy or adversely modify the critical habitat of 
listed species.
    EPA is committed under FIFRA to protecting endangered and 
threatened species from adverse effects of pesticides. EPA evaluates 
extensive toxicity and ecological effects data in order to estimate 
potential risks to birds, fish, invertebrates, mammals, and plants from 
the use of the pesticide. Approximately 75 FTE and $2 million in 
contract dollars are devoted to ecological risk assessments annually.
    Because endangered species may need special protections, EPA has 
developed risk assessment procedures to determine whether a pesticide 
has the potential to harm individual threatened or endangered animals 
or plants. EPA provides to the public information about these risk 
assessment procedures on our website.
    EPA has determined in a number of well documented instances that 
additional restrictions are necessary to address risks to endangered 
and threatened species and other nontarget species.
          DDT. A well known example is the cancelled pesticide 
        DDT, which acted as a reproductive toxicant for certain birds 
        species contributing to their decline, most notably certain 
        raptor species such as Bald Eagles and the Peregrine Falcon. 
        EPA took strong action and cancelled DDT in the U.S. in 1972, 
        and subsequently it was banned for agricultural use worldwide, 
        although limited disease vector control use continues. The 
        EPA's cancellation of DDT and the enactment of the ESA are 
        cited as a major reason for the comeback of Bald Eagle 
        populations.
          Fenthion. The use of the avicide fenthion to control 
        pest birds in urban, industrial, and agricultural settings, 
        resulted in secondary poisonings of predatory birds (hawks, 
        owls, falcons) after they consumed poisoned pest birds, such as 
        starlings. The avicide product was cancelled on March 1, 1999.
          Azinphos methyl. Use of azinphos methyl poses risks 
        to aquatic ecosystems. EPA has phased out registrations of 
        azinphos methyl products, with the last remaining uses 
        scheduled to end by September 2012.
    As part of a thorough ecological risk assessment, EPA makes an 
``effects determination'' regarding whether the use of a pesticide 
``may affect'' or will have ``no effect'' on a listed species and any 
designated critical habitat for the species. If EPA determines that the 
pesticide ``may affect'' individual organisms in a species, EPA further 
characterizes whether the use of the pesticide is ``likely to adversely 
affect'' or ``not likely to adversely affect'' the species. Under the 
current ESA regulations, EPA must consult with the Services regarding 
any pesticide action that EPA finds may affect listed species or 
designated critical habitat. EPA can engage the Services in an informal 
consultation when EPA determines as a result of its risk assessment 
conclusions that a pesticide's use ``may affect, but is not likely to 
adversely affect'' a listed species. The result of this informal 
process is typically a letter of concurrence or non-concurrence from 
the Services, with EPA's determination.
    If EPA determines that a pesticide ``may affect and is likely to 
adversely affect'' a listed species, or if a Service does not concur 
with EPA's determination that a pesticide's registered use is ``not 
likely to adversely affect'' a species, EPA must engage in formal 
consultation with the appropriate Service(s). During formal 
consultation (as described under the Services' ESA regulations at 50 
CFR part 402, Subpart B), EPA provides the Services with its detailed 
assessment of potential risks and its effects determination. Under the 
ESA the Services are required to produce a final Biological Opinion 
within 135 days after initiation of the formal consultation procedure 
unless the Service and action agency agree to an extension. A Service's 
Biological Opinion provides the Service's view of whether a pesticide's 
registration is likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat and, if so, 
describes Reasonable and Prudent Alternatives (RPA) to avoid jeopardy 
or destruction or adverse modification of critical habitat. The 
Services also exemptany otherwise prohibited take of a species, once an 
alternative is identified to avoid jeopardizing that species 
``reasonable and prudent measures'' (RPM) to minimize the impact of the 
take.
    As a result of an EPA risk assessment or formal consultation with 
the Services, EPA may determine that a pesticide's registration should 
be altered to ensure use of a pesticide will not likely jeopardize the 
continued existence of a listed species. In such cases, EPA may require 
changes to the use conditions specified on the labeling of the product. 
Often such changes are necessary only in specific geographic areas 
(rather than nationwide) to ensure protection of the listed species. In 
those cases, EPA will implement protections through geographically-
specific Endangered Species Protection Bulletins, which by reference on 
the pesticide product's label become enforceable use limitations for 
that product within that geographic area. These Endangered Species 
Protection Bulletins will be developed and provided to pesticide users 
through a web-based application called ``Bulletins Live!'' that was 
developed with the assistance of the U.S. Geological Survey.
ESA Litigation
    Litigation has been brought against EPA under the ESA more than a 
dozen times over the past 10 years challenging the registration of 
hundreds of EPA registered pesticides on hundreds of listed species 
because EPA and the Services have not completed consultation. Nearly 
all of these lawsuits challenged EPA's failure to consult with the 
Services on the effects of particular pesticides on listed species. 
Many of these cases were dismissed, but several resulted in court 
orders, consent decrees, or settlement agreements that imposed a 
schedule under which EPA must make effects determinations for numerous 
pesticides and species, and, as appropriate, to consult with FWS or 
NOAA.
    Several of these cases also resulted in interim injunctive relief 
during the pendency of those effects determinations and consultations. 
Typically, the injunctive relief put in place ``no-use'' buffer zones 
around waterbodies or other habitat that could contain threatened or 
endangered species until the Services and EPA completed the ESA 
consultation process.
    These matters are summarized as follows:
          Californians for Alternatives to Toxics v. EPA, No. 
        COO-3150 (N.D. Cal.). The September 2002 consent decree set 
        forth a schedule for effects determinations (and consultation, 
        as appropriate) regarding the effects of 18 pesticides on 33 
        listed species in California.
          Washington Toxics Coalition v. EPA, No. C01-0132 
        (W.D. Wash). A series of court orders from 2002-2004 required 
        EPA to make effects determinations (and consult, as 
        appropriate) on 54 pesticides on 26 listed salmonid species and 
        imposed interim injunctive relief.
          Center for Biological Diversity v. Johnson, No. 04-
        cv-00126 (D.D.C.). The August 2005 settlement agreement set 
        forth a schedule for effects determinations (and consultation, 
        as appropriate) regarding the effects of six pesticides to one 
        listed species, the Barton Springs salamander.
          Natural Resources Defense Council v. EPA, No. 03-CV-
        02444 (D. MD). The March 2006 settlement agreement set forth a 
        schedule for determinations (and consultation, as appropriate) 
        regarding the effects of atrazine on approximately 20 listed 
        species.
          Center for Biological Diversity v. Johnson, No. 02-
        1580 (N.D. Cal.). Following district court finding on 
        liability, parties agreed to stipulated injunction in October 
        2006 setting forth schedule for effects determinations (and 
        consultation, as appropriate) regarding the effects of 66 
        pesticides on the California red-legged frog and providing for 
        interim injunctive relief.
          Center for Biological Diversity v. EPA, No. C07-02794 
        (N.D. Cal.) The May 2010 stipulated injunction set forth a 
        schedule for effects determinations (and consultation, as 
        appropriate) regarding the effects of 75 pesticides on 11 
        species in Northern California and provided for interim 
        injunctive relief that included use limitations.
    Pursuant to these settlements and orders, EPA has prepared ESA 
assessments for various pesticides and species and has transmitted over 
170 consultation requests to the Services. Over the last decade, 
preparation of these ESA assessments has required a very significant 
level of effort from EPA's pesticide program staff. For example, in 
2010 alone, EPA expended nearly $4.5 million in contract funds and 
staff salary to meet these court ordered or monitored schedules for 
developing effects determinations for 13 species in California and 
carrying out work to refine measures recommended by NOAA in two 
Biological Opinions.
    Where EPA determined the use of the pesticide may affect a listed 
species, EPA requested ESA consultation. To date, EPA has received 
three Biological Opinions from NOAA completing consultation on the 
effects of 18 pesticides on threatened and endangered salmonid species 
in Washington, Idaho, Oregon, and California. Recently EPA received a 
draft of a fourth Biological Opinion, also addressing listed salmonids 
in the Northwest, that when final will conclude another six pesticide 
consultations.
    In addition to the litigation noted above, EPA, NOAA, and FWS are 
currently engaged in three significant cases that potentially could 
have broad ramifications for the future of the Federal government's ESA 
compliance efforts on FIFRA pesticide regulatory actions. On January 19 
of this year, EPA was sued by the Center for Biological Diversity under 
the ESA regarding EPA's alleged failure to consult with the Services on 
the potential effects of more than 300 pesticides and approximately 200 
listed species nationwide. The scope of the consultations at issue in 
this lawsuit, by itself, is many times larger than those addressed in 
all of the previous cases combined. The potential implications of this 
case for EPA Office of Pesticide Program resources and its pesticide 
Registration Review program generally are considerable. The case is 
currently stayed so that the parties and others can discuss how a case 
of this magnitude might proceed.
    The other two cases, Dow AgroSciences v. NMFS (pending in the U.S. 
District Court for the District of Maryland) and Northwest Center for 
Alternatives to Pesticides (NCAP) v. EPA (pending in the Western 
District of Washington), involve challenges related to the first two of 
NOAA's recent Biological Opinions on pesticide actions that stem from 
the consultations on listed salmonids ordered in the Washington Toxics 
Coalition litigation, outlined above. In Dow AgroSciences, plaintiffs 
argue that NOAA's scientific conclusions in the first of those 
Biological Opinions were arbitrary and capricious, that NOAA failed to 
rely on the best available data as required by their own regulations, 
and that NOAA failed to comply with statutory and regulatory procedural 
requirements in issuing its opinions. Recently the 4th Circuit ruled 
that this matter is subject to judicial review in U.S. District Court. 
In the NCAP case, several non-governmental organizations assert EPA 
violations of the ESA for allegedly failing to implement NOAA's first 
two salmonid Biological Opinions.
    Both EPA and the Services are working in close coordination with 
the Department of Justice in addressing this pending litigation. 
Obviously, these cases have the potential to have a significant impact 
on pesticide registration actions generally and the development and 
implementation of Biological Opinions for the affected pesticides.
Improving the Consultation Process
    In EPA's view, a more efficient and effective consultation process 
should include the following attributes:
          The FIFRA risk assessment process and the development 
        of Biological Opinions would rely on best available information 
        and peer-reviewed scientific procedures and models would be 
        developed to evaluate and estimate the potential effects on 
        listed species resulting from the use of a pesticide and to 
        determine what measures would provide adequate protections;
          The risk assessment, consultation, and risk 
        management processes is transparent and provide meaningful 
        opportunities for public participation so that the public 
        understands the basis for proposed and final actions and can 
        provide information to help improve risk assessments and risk 
        management decisions;
          The risk management process would employ risk 
        mitigation measures that are adequate to protect listed 
        species, and are tailored to specific uses and applicable to 
        specific geographic areas based on species location and 
        biological information to minimize the burdens on pesticide 
        users. Risk mitigation measures necessary for the protection of 
        listed species would be reasonable and clearly communicated to 
        pesticide users; and
          In order to make the best use of agencies' and 
        stakeholders' resources, and to provide protections where and 
        when needed, the risk assessment, consultation, and risk 
        management processes operate in a consistent, efficient, and 
        timely fashion.
    Addressing Scientific Issues. As I indicated above, EPA and the 
Services have been addressing the myriad difficult scientific issues 
involved in evaluating whether and how pesticides may affect listed 
species. To this end, in 2009 the three agencies formed a work group of 
technical experts from EPA's Office of Water and Office of Pesticide 
Programs and their counterparts from FWS and NOAA. As charged by the 
senior management in the three agencies, the workgroup has to date, 
identified and resolved some key issues that arise in no small part due 
to the different statutory schemes and regulatory frameworks of the 
various agencies that are not easily reconciled. For example, under 
FIFRA, EPA is required to weigh the benefits of use against the risks 
while under the ESA, Federal agencies are required to ensure that their 
actions are not likely to jeopardize the continued existence of any 
listed species.
    In March 2011, on behalf of the Departments of Agriculture, 
Commerce, and Interior, EPA requested that NAS convene a committee of 
independent experts to review scientific and technical issues that have 
arisen as a result of our collective responsibilities under the ESA and 
FIFRA. The recent experience of completing consultations under the ESA 
for FIFRA related actions affecting Pacific salmon has illustrated a 
number of scientific issues. The scientific and technical topics on 
which we seek advice pertain to the approaches utilized by EPA and the 
Services in assessing the effects of proposed FIFRA actions on 
endangered species and their habitats. These topics include the 
identification of best available scientific data and information; 
consideration of sub-lethal, indirect, and cumulative effects; the 
effects of chemical mixtures and inert ingredients; the use of models 
to assist in analyzing the effects of pesticide use; incorporating 
uncertainties into the evaluations effectively; and the identification 
of pertinent geospatial information and biological and other datasets 
that can be employed in the course of these assessments. To provide for 
the review, EPA and the Services will provide EPA's risk assessments 
and NOAA's Biological Opinions to the NAS as examples of the different 
scientific approaches. The issues before the NAS are scientifically 
complex and of high importance. A concerted, closely coordinated effort 
to address them openly and actively will assist in the proper execution 
of the statutory responsibilities under the ESA, FIFRA, and other 
applicable laws.
    The Executive Branch is in the early stages of formulating the 
specific charge to the NAS panel. Based upon preliminary discussions 
with the NAS, we believe that the external review could be completed in 
18 months, once the panel is convened.
    Transparency and Public Participation. The Administration has made 
transparency a priority to promote accountability and provide 
information for citizens about what their Government is doing. ESA 
section 7 consultation is not subject to notice and comment procedures 
by law. Nonetheless, EPA is, along with using the best available 
science, enhancing the transparency of our processes and providing 
meaningful opportunities for public participation are critical for the 
success of pesticide program.
    Accordingly, through our pesticide registration review web site and 
our endangered species protection web site, EPA has provided the public 
with access to our assessments and effects determinations, draft 
biological opinions we have received, our comments on those opinions, 
and final opinions from the services whether this work was conducted 
pursuant to litigation or as a matter of course in our registration 
review program. This input has served to improve our work.
    It is through our endangered species web site as well that EPA 
provides general information about the status of consultations and 
expected dates for receipt of Draft Biological Opinions; makes 
available such Drafts; and solicits public input on the recommendations 
contained in those Draft opinions. EPA then considers such input in our 
responses to the Services regarding their Draft documents.
    As noted above, EPA is focusing its ESA compliance resources 
primarily on its registration review program. As EPA conducts the 
statutorily mandated reevaluation of a previously registered pesticide, 
we will perform an ESA assessment of all uses of the pesticide, and, as 
necessary, initiate consultation with the Services. Using the 
registration review program provides an established framework. EPA's 
Pesticides Program incorporates public participation as an integral 
part of its existing processes of registration and registration review. 
The registration review process generally encompasses three 
opportunities for public comment that may include input and information 
relative to the ecological risk assessments and endangered species 
effects determinations developed as a matter of course, to support 
registration review. First EPA opens a public docket which contains 
EPA's plan on how it will proceed with a particular pesticide. As part 
of this docket, EPA develops and publishes a problem formulation that 
articulates the scientific work that will be conducted, including any 
work relative to listed species. The second stage of registration 
review results in publication of a draft risk assessment that would 
include EPAs analyses relative to all non-target species including 
listed species. Subsequently a final risk assessment and proposed 
registration review decision are published. This decision may contain 
mitigation EPA believes is necessary to ensure that the risks of 
continued registration outweigh the benefits--the FIFRA standard for 
ecological effects, as well as any mitigation EPA proposes is necessary 
for the specific protection of listed species. Finally, the EPA will 
publish its final registration review decision. At each of the three 
steps prior to the final decision, EPA solicits public input. That 
input is reviewed and analyzed and a response to comment document is 
developed and issued along with the products in the next phase so that 
the public may see how their input was considered.
    Tailoring risk mitigation measures. Our website also provides a 
portal to the application called ``Bulletins Live!'' which is the 
system developed with the assistance of the US Geological Survey, to 
provide Endangered Species Protection Bulletins to pesticide users. 
When changes to a pesticide's use are necessary to protect a listed 
species, the pesticide label will carry a generic statement that refers 
the user to our Bulletins Live! web site for information on how to use 
the pesticide in their geographic area. The generic label statement 
also will contain a toll free phone number that people can use to 
request information on use limitations and have an Endangered Species 
Protection Bulletin mailed to them, in the event they do not have 
internet access. As noted earlier, these Bulletins set geographically 
specific pesticide use limitations for the protection of endangered or 
threatened species and their designated critical habitat where such 
limitations on use of a pesticide have been determined to be necessary. 
The Bulletins contain a map of the selected county, a description of 
the species being protected, pesticide(s) of concern, pesticide use 
limitations, and the month for which the Bulletin is valid. EPA and the 
U.S. Geological Survey are currently developing a more interactive, 
geo-coded platform to provide this information, which will make it 
easier to be more geographically specific in terms of where pesticide 
use may need to be limited in some manner to protect listed species.
    While EPA is moving ahead to develop improved tools to communicate 
geographically specific information, this information will be only as 
specific and focused as permitted by the species location data and 
biological information available deemed reliable from the Services. 
Currently, such information and data are not available in geospatial 
layers for the more than 1,200 listed species across the nation.
    Efficiency, Consistency, and Timeliness. ESA consultations and 
implementation of protections for threatened and endangered species 
need to be done in a consistent, timely, and predictable manner. Our 
efficiency will improve significantly once all agencies follow the same 
durable, accepted scientific methodology for performing ESA 
assessments, an outcome EPA hopes will be achieved using the 
recommendations from the National Academies report and with ongoing 
conversations between EPA, FWS, and NOAA. Measures, such as internal 
peer review and quality control programs--also will help produce 
consistent outcomes across different assessors. We need to set and hold 
ourselves to schedules for conducting assessments, completing 
consultations, and making decisions about implementation of protection 
measures. We need to plan and allocate resources to achieve the level 
of timeliness our external stakeholders expect. And recognizing the 
enormity of the consultation effort that lies ahead, we need to be as 
efficient as absolutely possible. Among other things, this will mean 
using data about species location and biology, that will enable 
assessors to perform spatially and temporally explicit assessments. EPA 
is committed to achieving these ends.
Conclusion
    EPA's pesticide program is a highly regarded program that makes 
more than 10,000 regulatory decisions a year, including evaluating 
approximately 20 new pesticide active ingredients and reevaluating 70 
previously approved pesticides annually, as well as reviewing thousands 
of proposed changes to existing products, among other statutorily 
mandated decisions. Fulfilling our ESA obligations and meeting our 
other legal responsibilities will require careful management of our 
resources, and wise setting of priorities. Conducting ESA assessments 
for currently registered pesticides and implementing Biological 
Opinions from the Services will continue to require very significant 
expenditures of staff and contract resources. We must find ways to make 
the consultation process more efficient, and streamlining reviews. We 
should, to the greatest extent possible, strive to avoid duplicating 
work
    I am pleased that the senior leadership of all three agencies 
recognizes the importance of compliance with the ESA, and the need for 
fundamental change in how we have operated in the past. Although it 
will not be easy, by incorporating guidance from the NAS on the 
critical scientific issues, we can further develop a consultation 
process that is grounded in the best available science, that is 
transparent and participatory, and that produces timely and consistent 
regulatory decisions which fully protect threatened and endangered 
species without unduly burdening the ability to produce food and fiber 
products for this country.
    [NOTE: The responses to questions submitted for the record by the 
Administration can be found on page 23.]
                                 ______
                                 
    Mr. Lucas. Thank you. And the Chair now recognizes Dr. 
Gould for your testimony.

    STATEMENT OF DR. ROWAN GOULD, ACTING DIRECTOR, FISH AND 
       WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR

    Dr. Gould. Good morning Chairman Hastings and Chairman 
Lucas. Thank you for the opportunity to testify on behalf of 
the Service.
    The focus of my testimony will be on the Service's role on 
consulting with the Environmental Protection Agency as required 
under Section 7 of the Endangered Species Act, the significant 
challenges we face in addressing this requirement and our 
commitment to continue working with our Federal partners on 
EPA's actions under FIFRA.
    The ESA and FIFRA have different, but complementary 
purposes and the statutes create a set of obligations for the 
EPA, Services, and the National Marine Fisheries Service. The 
purpose of the ESA is to provide a means for conserving the 
ecosystems upon which endangered and threatened species depend 
and a program for the conservation of such species.
    The ESA directs all Federal agencies to participate in 
conserving these species, specifically, Sec. 7(a)(1) of the ESA 
charges Federal agencies to aid in the conservation of listed 
species and Sec. 7(a)(2) requires the agencies, through 
consultation with the Service to ensure that their activities 
are not likely to jeopardize the continued existence of listed 
species or adversely modify designated critical habitats.
    One of the Service's roles in carrying out its 
responsibilities under the Endangered Species Act is to advise 
Federal agencies on the conservation needs of endangered and 
threatened species. In order to fulfill that role, the Service 
requires specific information from Federal agencies that 
describes the nature and extent of the proposed action, the 
area to be affected by the proposed action, a description of 
any listed species or critical habitat that may be affected, a 
description of the manner in which these species may be 
affected, and any other relevant reports, including any 
environment impact statement, environmental assessment or 
biological assessment.
    With that information in hand, the Service conducts its 
assessment of whether the proposed action, when combined with 
the current status of the species and any cumulative effects is 
likely to jeopardize the continued existence of any listed 
species or result in the destruction or adverse modification of 
critical habitat.
    The Service's assessment is relayed to the Federal agency 
on a document called The Biological Opinion. It is this 
Biological Opinion upon which Federal agencies, such as EPA 
rely in fulfilling their responsibility to ensure their actions 
are not likely to jeopardize the continued existence of any 
listed species or result in destruction or adverse modification 
of critical habitat.
    The Section 7 consultation provisions of the ESA are not 
commonly applied to discrete Federal actions that have a 
limited, temporal, and geographic scope, such as approval of a 
grazing permit or a lease or a construction project. The 
Service conducts thousands of such consultations each year and 
these consultations play an important role in promoting the 
conservation of an endangered and threatened species.
    EPA's pesticide registration actions are very different in 
that they typically cover large geographic areas are in effect 
for a lengthy period of time, typically up to 15 years and 
provide data on toxicity to standardized test species and 
extrapolate that information to potential effect on listed 
species. These differences create key scientific and technical 
issues that must be resolved.
    Another important challenge is how to provide for effective 
involvement of registrants and stakeholders in the consultation 
process so that measures directed at conserving listed species 
will have minimal impacts to food and fiber commodity 
production.
    Over the past year, the Service, NOAA, and EPA have been 
working cooperatively through an interagency working group to 
address the scientific issues and we expect the group to 
continue its efforts. Recently, the working group and USDA have 
agreed to contract with the National Academy of Sciences 
National Research Council to help clarify these issues. The 
Service also believes that we must take full advantage of the 
knowledge of pesticide registrants and other stakeholders to 
help refine the assessment of effects on listed species.
    The Service is committed to working with EPA, NOAA, and 
USDA to establish an efficient process that satisfies EPA's 
obligations under FIFRA and provides a means for the 
conservation of threatened and endangered species required 
under the ESA, while minimizing the impact to affected 
pesticide users and applicators.
    I appreciate the opportunity to testify today and will be 
happy to answer any questions. Thank you.
    [The prepared statement of Dr. Gould follows:]

 Statement of Rowan Gould, Acting Director, Fish and Wildlife Service, 
                    U.S. Department of the Interior

    Good morning Chairman Hastings and Chairman Lucas. I am Rowan 
Gould, Acting Director for the U.S. Fish and Wildlife Service 
(Service). Thank you for the opportunity to testify on behalf of the 
Service. The focus of my testimony will be on: the Service's role of 
consulting with the Environmental Protection Agency (EPA), as required 
by Section 7 of the Endangered Species Act of 1973 (ESA); the 
significant challenges we face in addressing this requirement; and our 
commitment to continue working with our Federal partners on EPA's 
actions under the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA).
    The ESA and FIFRA have different but complementary purposes and the 
statutes create a set of obligations for the EPA, Service, and the 
National Marine Fisheries Service (NOAA-Fisheries).
SERVICE'S ROLE
    The purposes of the ESA are to provide a means for conserving the 
ecosystems upon which endangered and threatened species depend and a 
program for the conservation of such species. The ESA directs all 
Federal agencies to participate in conserving these species. 
Specifically, section 7(a)(1) of the ESA charges Federal agencies to 
aid in the conservation of listed species, and section 7(a)(2) requires 
the agencies, through consultation with the Service, to ensure that 
their activities are not likely to jeopardize the continued existence 
of listed species or adversely modify designated critical habitats.
    One of the Service's roles in carrying out its responsibilities 
under the Endangered Species Act is to advise Federal agencies on the 
conservation needs of endangered and threatened species. In order to 
fulfill that role, the Service requires specific information from 
Federal agencies that describes the nature and extent of the proposed 
action, the area to be affected by the proposed action, a description 
of any listed species or critical habitat that may be affected, a 
description of the manner in which those species may be affected, and 
any other relevant reports including any environmental impact 
statement, environmental assessment, or biological assessment. With 
that information in hand, the Service conducts its assessment of 
whether the proposed action, when combined with the current status of 
the species, and any cumulative effects, is likely to jeopardize the 
continued existence of any listed species or result in the destruction 
or adverse modification of critical habitat. The Service's assessment 
is relayed to the Federal agency in a document called a ``Biological 
Opinion.'' It is this biological opinion upon which Federal agencies 
such as EPA rely in fulfilling their responsibility to insure their 
actions are not likely to jeopardize the continued existence of any 
listed species or result in destruction or adverse modification of 
critical habitat.
CHALLENGES
    The section 7 consultation provisions of the ESA are most commonly 
applied to discrete Federal actions that have a limited temporal and 
geographic scope--such as approval of a grazing permit/lease or a 
construction project. The Service conducts thousands of such 
consultations each year and these consultations play an important role 
in promoting the conservation of endangered and threatened species. 
EPA's pesticide registration actions are very different in that they 
typically cover large geographic areas (sometimes the entire nation), 
are in effect for a lengthy period of time (typically up to 15 years, 
and provide data on toxicity to standardized test species and 
extrapolate that information to potential effects to listed species.. 
These differences create key scientific and technical issues that must 
be resolved. Some of these key issues include:
          How to extrapolate toxicity data from standardized 
        test organisms to effects on listed species;
          How sub-lethal effects to individuals cascade to 
        effects on populations and species;
          How the toxicity of the active ingredient relates to 
        the toxicity of the product as applied and combined with other 
        registered products;
          How to manage uncertainty, and
          How to use historical agricultural production and 
        pesticide use data when assessing risks over the 15 year 
        duration of a registration decision.
    Another important challenge is how to provide for effective 
involvement of registrants and stakeholders in the consultation process 
so that measures directed at conserving listed species will have 
minimal impacts to food and fiber commodity production.
PATH FORWARD
    Over the past year, the Service, NOAA, and EPA have been working 
cooperatively through an interagency working group to address these 
scientific issues and we expect that group to continue its efforts. 
Recently, the working group and USDA also agreed to contract with the 
National Academy of Sciences' National Research Council to help clarify 
these issues. The Service also believes that we must take full 
advantage of the knowledge of pesticide registrants and other 
stakeholders to help refine the assessment of effects to listed 
species. There are numerous opportunities within the consultation 
process to incorporate such information including when EPA is preparing 
its risk assessment, when the Service is beginning preparation of its 
biological opinion, when the Service has developed its draft biological 
opinion, and when reasonable and prudent alternatives or reasonable and 
prudent measures are being developed by the Service and EPA.
COMMITMENT
    The Service is committed to working with EPA, NOAA, and USDA to 
establish an efficient process that satisfies EPA's obligations under 
FIFRA and provides a means for the conservation of threatened and 
endangered species required under the ESA, while minimizing the impact 
to persons engaged in agricultural food and fiber commodity production 
and other affected pesticide users and applicators.
CONCLUSION
    The Service appreciates the leadership, and the interest and 
efforts of both Committees in supporting the conservation of the 
nation's fish and wildlife resources. I appreciate the opportunity to 
testify today and would be happy to answer any questions.
    [NOTE: The responses to questions submitted for the record by the 
Administration can be found on page 23.]
                                 ______
                                 
    Mr. Lucas. Thank you. The Chair now recognizes Mr. Schwaab 
for your testimony.

  STATEMENT OF MR. ERIC SCHWAAB, ASSISTANT ADMINISTRATOR FOR 
FISHERIES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC 
  AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

    Mr. Schwaab. Good morning Chairman Lucas, Chairman 
Hastings, Ranking Members Markey and Peterson, members of the 
Committees. Thank you for the opportunity to testify today.
    Section 7 of the Endangered Species Act requires Federal 
agencies to consult with the National Marine Fisheries Service 
or the Fish and Wildlife Service on any action they authorize, 
fund, or carry out that could have an impact on endangered or 
threatened species or their critical habitats. The EPA's 
registration of pesticides pursuant to the Federal Insecticide, 
Fungicide, and Rodenticide Act is a Federal authorization that 
requires ESA Section 7 consultations.
    In 2008, following litigation and pursuant to a settlement 
agreement, EPA and the National Marine Fisheries Service began 
consulting on the effects of 37 pesticides on threatened and 
endangered Pacific salmon. Pacific salmon are a valuable 
economic resource and an icon of the Pacific Northwest and 
California.
    So far, we have issued three final biological opinions 
related to this settlement agreement. The first biological 
opinion in 2008 analyzed the effects of three pesticides. Of 
the 37 pesticides that NMFS is scheduled to consult on with EPA 
under the settlement agreement, these three present the 
greatest risk to threatened and endangered species of salmon.
    In our 2008 biological opinion we recommended risk 
reduction measures to reduce exposure of listed salmon to these 
pesticides from field runoff and drift. In 2009 and 2010, we 
issued two additional biological opinions covering 18 
pesticides and are finalizing a draft biological opinion on 6 
more pesticides for June of this year. We must complete 
consultation on the remaining pesticides by April 30, 2012.
    We recognize that other stakeholders are affected by the 
implementation of our biological opinions. Throughout the 
consultation process, we and the EPA have sought and continue 
to seek input from affected pesticide registrants. Before the 
resulting biological opinion is finalized, EPA also provides an 
opportunity for public comment on the draft, reasonable and 
prudent alternatives presented in the biological opinions.
    In an effort to enhance public awareness, we have hosted 
stakeholder forums in Portland, Oregon and Sacramento, 
California to explain the consultation process. Additionally, 
the Fisheries Service, EPA, and the Fish and Wildlife Service 
are convening a workshop with the Minor Crop Farmer Alliance on 
pesticide registration review and ESA consultations to inform 
grower representatives of the processes and analyses used by 
our agencies to identify risk and mitigation options. This 
forum will also be used to identify grower level data that 
could enhance the risk identification and risk mitigation 
decision process.
    We recognize the complexity of integrating the conservation 
of endangered species into the administration of FIFRA. To 
address this challenge, EPA, NOAA, and the Fish and Wildlife 
Service have formed an interagency workgroup of senior policy 
leaders to address core, scientific issues underlying this 
integration. EPA, NOAA, USDA, and the Fish and Wildlife Service 
have also asked the National Academy of Sciences to convene a 
panel to provide its expert advice on certain core, scientific, 
and technical issues that serve as the foundation for assessing 
risks to listed species.
    Seeking independent advice on certain scientific issues 
will help improve the scientific and technical foundations of 
the registration process and ESA consultation processes. 
Enhanced consistency and approaches to these issues within the 
involved agencies will expand the public understanding of the 
scientific methods and approaches and their underlying 
rational.
    We have requested the National Research Council of the 
National Academy of Sciences to provide us with advice on the 
following topics: best available scientific data and 
information, sublethal, indirect and cumulative effects, 
mixtures and ingredients, risk and exposure modeling, 
interpretation of uncertainty, and geospatial information and 
data sets. We have developed terms of reference for this review 
and are currently working with the Academy to convene a panel 
and proceed with this important work. We expect to receive the 
panel's recommendations and report within 18 months.
    The interagency workgroup is also exploring the potential 
utility of additional data and modeling capabilities in future 
consultations. Specifically, it will examine the capability of 
the Agriculture Research Service and the Natural Resources 
Conservation Service to refine projections of pesticide and 
herbicide uses and potential environmental and aquatic 
exposures. It will also undertake parallel work with relevant 
state pesticide programs to further refine the information 
utilized in the consultation process.
    Finally, it will explore the possibility of expanding USGS 
water quality monitoring programs and modeling capability to 
help refine projection of exposures likely to occur of the 15-
year life of a registration.
    Finally, NMFS, Fish and Wildlife Service, and EPA recognize 
the importance of expanding the opportunities for public 
participation in the consultation process. We will pursue 
expanded opportunities to participate in the consultation 
processes to registrants, the affected states, farming 
organizations, and other interested parties. We will solicit 
recommendations on improving access to scientific information, 
monitoring data and other information pertinent to the ESA 
consultation issues up front in the early preparation of 
biological assessments by EPA and over the course of the 
preparation of biological opinions by both NMFS and the Fish 
and Wildlife Service in the case of formal consultations. Thank 
you.
    [The prepared statement of Mr. Schwaab follows:]

  Statement of Eric Schwaab, Assistant Administrator, National Marine 
  Fisheries Service, National Oceanic and Atmospheric Administration, 
                      U.S. Department of Commerce

    Mr. Chairman, my name is Eric Schwaab and I am the Assistant 
Administrator for Fisheries, within the Department of Commerce's 
National Oceanic and Atmospheric Administration (NOAA).
    Thank you for the opportunity to discuss the National Marine 
Fisheries Service's (NMFS) activities to implement the Endangered 
Species Act (ESA) interagency consultation provisions related to the 
U.S. Environmental Protection Agency's (EPA) registration of 
pesticides.
An Overview of ESA Requirements for Federal Agencies
    The ESA provides for the conservation of species that are 
endangered or threatened throughout all or a significant portion of 
their range, and conserves the ecosystems upon which they depend. The 
responsibility of implementing the ESA is shared between the U.S. Fish 
and Wildlife Service (FWS) and NMFS (collectively the Services). 
Generally, FWS manages freshwater and land-dependent species, and NMFS 
manages marine and anadromous species, including 73 of the total listed 
species.
    Section 7(a)(2) of the ESA requires Federal agencies, in 
consultation with NMFS and FWS, to insure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of those species' critical habitat.
    The interagency consultation process, or section 7 consultation, 
generally occurs between two Federal agencies--the agency that proposes 
an action that may affect threatened or endangered species and either 
NMFS or FWS, depending on the species affected. Generally, the 
consultation process begins with the action agency's preparation of a 
biological assessment evaluating the impacts of its action on listed 
species and designated critical habitat. Upon completion of the 
consultation process, the Services will develop a biological opinion, 
which documents their determination as to whether the Federal agency's 
action is likely to jeopardize the continued existence of listed 
species, or result in the destruction or adverse modification of 
critical habitat. Should an action be determined by the Services to 
jeopardize a species or adversely modify critical habitat, the Services 
will suggest Reasonable and Prudent Alternatives (RPAs) to the proposed 
Federal action in the biological opinion that, if implemented, will 
avoid the likelihood of jeopardizing the continued existence of a 
listed species or resulting in the destruction or adverse modification 
of critical habitat. The biological opinion will also include an 
incidental take statement, which may contain Reasonable and Prudent 
Measures (RPMs) to minimize the impact of incidental take of 
individuals of the species.
ESA Consultation Process for EPA Registration of Pesticides
    EPA's registration of pesticides pursuant to the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a Federal 
authorization that is subject to the interagency consultation 
requirement of the ESA. Following litigation and pursuant to a 
settlement agreement, NMFS began consulting with EPA on the effects of 
37 pesticides on threatened and endangered Pacific salmon and steel 
head (salmonids) in 2008. Salmonids are anadromous species that are a 
valuable economic resource and an icon of the Pacific Northwest and 
California. Protection and recovery of Pacific salmonids will help 
restore the economic vitality of salmonid-dependent industries and 
ensure the long-term survival of these important and iconic species.
    NMFS issued its first biological opinion covering 3 of the 37 
pesticides in late 2008 and issued two subsequent final biological 
opinions covering 15 additional pesticides in 2009 and 2010. NMFS is 
preparing a draft biological opinion on an additional 6 pesticides and 
will issue the final biological opinion on June 30, 2011. NMFS must 
complete consultation on the remaining 13 pesticides by April 30, 2012. 
NMFS is completing these complex consultations on a tight schedule with 
resource constraints.
    NMFS and the plaintiffs developed a schedule for completing 
consultation on these 37 pesticides as part of a court settlement 
agreement designed to address the pesticides of greatest concern for 
endangered species first. The first biological opinion in 2008 analyzed 
the effects of malathion, diazinon, and chlorpyrifos to 28 listed 
Pacific salmonids. Of the 37 pesticides that NMFS is scheduled to 
consult on with EPA under the settlement agreement, these three present 
the greatest risk to threatened and endangered species of salmonids. In 
addition, they are broad spectrum pesticides, meaning that the 
pesticide can harm or kill not only endangered species of concern, but 
the prey upon which they feed. As a result, in its 2008 biological 
opinion NMFS recommended risk reduction measures to reduce exposure of 
listed salmonids to these pesticides from field run-off and drift.
Stakeholder Involvement in Consultation Process
    When a proposed action involves the Federal agency formally 
approving or authorizing an activity of a non-Federal entity, the 
applicant for the Federal authorization can also play a role in the 
consultation process. With regard to the pesticides consultations, EPA 
and NMFS meet with the pesticides registrants during several stages of 
the process to exchange information. If NMFS reaches a jeopardy 
determination, EPA and NMFS will seek input from the registrants into 
the development of reasonable and prudent alternatives to the action to 
minimize risk to listed species. EPA also provides the public an 
opportunity to comment on the draft reasonable and prudent alternatives 
in the biological opinions.
    NMFS and EPA recognize that the implementation of the biological 
opinions affect other stakeholders and are increasing the participation 
of those stakeholders in the consultation process, both in EPA's 
preparation of biological assessments and in NMFS' biological opinions. 
This year, NMFS hosted stakeholder forums in Portland, Oregon and 
Sacramento, California to explain the consultation process. In 
addition, NMFS, EPA, USDA, and FWS are participating in a workshop with 
the Minor Crop Farmer Alliance on pesticide registration review and ESA 
consultations. The workshop, which will be held May 24-25, 2011, in 
Denver, Colorado, is designed to provide grower representatives an 
understanding of the processes and analyses used by our agencies to 
identify risk and mitigation options and to identify grower level data 
that may be available that would enhance the risk identification and 
risk mitigation decision process.
The Way Forward
    The Administration recognizes the scope and complexity of the 
challenge of the conservation of endangered species and the 
administration of FIFRA. It has through EPA, NOAA and FWS formed an 
interagency workgroup of senior policy leaders to craft a multi-faceted 
strategy to address the challenge. Joining in that group are 
representatives of the U.S. Geological Survey (USGS) and the USDA 
Office of Pest Management Policy because of their specialized expertise 
in the topic area.
    One major element of this effort is to address core scientific 
issues underlying the effective integration of FIFRA and ESA 
responsibilities. EPA, NOAA, USDA, and FWS asked the National Academy 
of Sciences to convene a panel to provide its expert advice on certain 
core scientific and technical issues that serve as the foundation for 
assessing risks to listed species associated with EPA's FIFRA-related 
activities. We believe that seeking independent advice on certain 
scientific issues involved in these processes, will provide the 
scientific and technical foundation for successful agency 
collaborations on consultations, enhance consistency in approaches to 
these issues within the involved agencies, and expand the public 
understanding of the scientific methods and approaches and their 
underlying rationale. We requested the National Research Council of the 
National Academy of Sciences to provide us with its advice on the 
following topics: (1) best available scientific data and information; 
(2) sub-lethal, indirect and cumulative effects; (3) mixtures and inert 
ingredients; (4) modeling; (5) interpretation of uncertainty; and (6) 
geospatial information and datasets. We developed Terms of Reference 
for this review, and are currently working with the Academy to convene 
a panel and proceed with this important work. Once the panel is 
convened, we expect to receive the panel's recommendations and report 
within eighteen months. The agencies will consider the advice of the 
panel and will work together with the goal of developing an agreed upon 
risk assessment methodology for addressing the requirements of the ESA.
    The interagency workgroup is also exploring the potential utility 
of additional data and modeling capabilities in future consultations. 
It will undertake work with relevant state pesticide programs to 
further refine the information utilized in the consultation process. 
Finally, it will explore the possibility of expanding USGS's water 
quality monitoring program and modeling capability to help refine 
projections of exposures that are likely to occur over the 15 year life 
of a registration.
    Finally, NMFS, FWS, and EPA recognize the importance of expanding 
the opportunities for public participation in the consultation process 
associated with these FIFRA actions. We intend to pursue expanded 
opportunities to participate in the consultation processes for the 
registrants, the affected states, farming organizations and other 
interested parties. The agencies will solicit recommendations on 
improving access to scientific information, monitoring data, and other 
information pertinent to the ESA consultation issues ``up-front'' in 
the early preparation of biological assessments by EPA, and over the 
course of the preparations of biological opinions by both NMFS and FWS 
in the case of formal consultations.
    Thank you again for the opportunity to provide an update on NMFS' 
activities to implement the ESA section 7 consultation processes 
related to the EPA's registration of pesticides. We are available to 
answer any questions you may have.
    [NOTE: The responses to questions submitted for the record by the 
Administration can be found on page 23.]
                                 ______
                                 
    Mr. Lucas. Thank you. I would like to thank the panel for 
their testimony and remind the Members that the Committee will 
be operating under the five-minute rule on questions. And with 
that, I turn to Chairman Hastings for his questions.
    The Chairman. Thank you. Thank you very much, Mr. Chairman.
    My question is to Dr. Bradbury. Over two years ago on April 
10, you sent a ten-page letter to NMFS, to the Director of 
Protected Resources. And in that letter you outlined over a 
dozen significant concerns you had about the BiOp.
    I am going to cite four of those concerns, and I want to 
read them in full because I think they are illuminating at 
least to the concerns that EPA had. The first one is, and I am 
quoting from the letter, ``There seems to be no explanation of 
the criteria that were used to determine what information was 
included or excluded.''
    The second concern was, ``It is generally not transparent 
as to what methodology NMFS's employed to collect information 
beyond which was provided by EPA.'' The third one is, ``The 
draft seems not to acknowledge that agriculture chemicals are 
secondary stressors and therefore considered to be a minor 
factor in species survival relative to other factors.''
    And the final concern was ``Given the significant nature of 
our comments, I request EPA be provided further opportunity to 
discuss the draft and to review and comment on the revised 
draft biological opinion prior to NMFS's issuing its final 
opinion.'' All of these were quoted from the letter.
    Now it has been two years since that letter was submitted, 
so my question is really pretty straightforward. Has NMFS 
responded in any way, written or otherwise as to addressing the 
concerns that you outlined in this April 10, 2009 letter, Dr. 
Bradbury.
    Dr. Bradbury. As my colleagues from the Services have 
discussed, EPA working with our senior scientists and senior 
policy leaders with our colleagues in the Services have been 
addressing many of the issues that you outlined in our letter 
of a couple of years ago. Issues concerning best available 
information, how to collect it, how to interpret it in the 
context of an EPA effects determination as well as a biological 
opinion, how to ensure transparency in our scientific 
processes, how to look at cumulative effects, the interaction 
of multiple stressors and how to work in a process in our 
efforts in EPA and in our work with the Services in our 
biological opinion process to ensure there is openness and 
enough time for stakeholders to get involved.
    The scientific issues that you discussed are reflected in 
many ways the charge that we have provided to the National 
Academy of Sciences and they are getting at issues like best 
available information, how to collect it, how to interpret it, 
how to ensure that uncertainties in the science are adequately 
articulated and the impacts of those uncertainties describe how 
to do cumulative effects.
    So yes, the conversations have been going on. They have 
been very intense and they are reflected in our pathway forward 
in using input from the National Academy of Sciences as we go 
forward.
    The Chairman. Dr. Bradbury, my time is running out. And my 
question was I think pretty straightforward. You expressed a 
dozen concerns. I outlined four of them and I asked 
specifically has NMFS responded to you in writing as to the 
those concerns that you requested in your letter of two years. 
Have they responded in writing to your concerns?
    Dr. Bradbury. The response by NOAA I believe is reflected 
in the charge to the National Academy of Science, the scope of 
the National Academy of Science.
    The Chairman. No, no, no. That is a different one. I am 
talking about specifically the letter that you sent two years. 
It is a pretty straightforward question. Chairman Lucas said 
that some of these questions may be a little hard to answer 
sometimes. Apparently, this was a hard one to answer, but it is 
a pretty straightforward question. I am just asking have they 
responded to you in writing with four of the dozen concerns 
that you outlined in that letter of April of two years ago.
    Dr. Bradbury. In the context of that specific biological 
opinion, the conversations have been in terms of the broader 
issues that that biological opinion reflects in terms of 
looking at sublethal effects, cumulative effects. So the 
conversations and the information that has being exchanged 
between the agencies are reflective of the broader challenges 
that our letter reflected.
    The Chairman. I am not sure that I got the answer. And the 
only reason I say that in all respect is that I opened my 
opening statement regarding the President's executive order 
that information must be based on the best available science 
and you are responding and asking information based on that 
science. And what I am hearing you say, Dr. Bradbury is that 
you have not received a response from NMFS regarding this, but 
you have had conversations. But you haven't gotten a response, 
is that true?
    Dr. Bradbury. That is true. And we are working on how to 
move forward.
    The Chairman. That is all I need to know. Thank you very 
much. I yield back.
    Mr. Lucas. The Chair now recognizes the Ranking Member, Mr. 
Markey, for his questions.
    Mr. Markey. Thank you, Mr. Chairman, very much.
    Inert ingredients to improve effectiveness of a pesticide 
often make up more than 50 percent of a pesticide product, 
despite the term an ``an inert'' ingredient does not mean the 
chemical is not harmful.
    In fact, Xylene, a common inert ingredient used in almost 
900 pesticide products is a potent neurotoxin associated with 
brain cancer and leukemia in humans and is also harmful to 
aquatic organisms, including salmon.
    Mr. Schwaab, when conducting biological opinions under the 
Endangered Species Act, does the National Marine Fisheries 
Service consider the impacts of inert ingredients such as 
Xylene on endangered species?
    Mr. Schwaab. Yes, sir, Mr. Markey.
    Mr. Markey. Yes?
    Mr. Schwaab. Yes, we do.
    Mr. Markey. Thank you. Dr. Bradbury, under the law 
governing pesticide registrations, FIFRA, does the EPA consider 
the impacts of any inert ingredients on endangered species when 
it reviews an active pesticide ingredient?
    Dr. Bradbury. Yes.
    Mr. Markey. You do? There are many ways in which pesticides 
can threaten the existence of an endangered species. Mr. 
Schwaab, please answer yes or no to the following questions. In 
conducting biological opinions on the impacts of pesticides on 
endangered species, does the National Marine Fisheries Service 
consider how pesticides affect food sources and prey of 
endangered species?
    Mr. Schwaab. Yes, sir. We do.
    Mr. Markey. How pesticides influence migration and 
reproduction of endangered species?
    Mr. Schwaab. Yes, sir.
    Mr. Markey. How multiple pesticides may interact and 
threaten the existence of endangered species?
    Mr. Schwaab. Yes.
    Mr. Markey. Dr. Bradbury, under FIFRA, in conducting 
ecological risks assessments on the impacts of pesticides on 
endangered species, does the EPA consider how pesticides affect 
food sources and prey of endangered species?
    Dr. Bradbury. Yes.
    Mr. Markey. How pesticides influence migration and 
reproduction of endangered species?
    Dr. Bradbury. Yes.
    Mr. Markey. How multiple pesticides may interact and 
threaten the existence of endangered species?
    Dr. Bradbury. Yes.
    Mr. Markey. Has EPA done so in the registrations completed 
over the last 30 years?
    Dr. Bradbury. We do those evaluations in our consultation 
packages. They are submitted to the Services.
    Mr. Markey. So they are in the completed registrations, is 
that correct?
    Dr. Bradbury. Detailed analyses are in our consultation 
packages. Scoping analyses are done in our registration 
decisions.
    Mr. Markey. So you are saying that you, in fact, do the 
same work that is done by Mr. Schwaab's office?
    Dr. Bradbury. No, I didn't say that because that wasn't 
what you asked. What we both do in our respective organizations 
is try to tackle this very complex set of scientific issues 
that you have raised. And it is those examples of very complex, 
scientific questions that we are taking to the National Academy 
of Sciences to provide all our agencies expert advise on how to 
take on those issues that you have described.
    Mr. Markey. So do you ask for this information as part of 
the registration?
    Dr. Bradbury. As part of the information.
    Mr. Markey. As part of the registration.
    Dr. Bradbury. Yes, as part of the information that is 
submitted to support our registration decision, EPA has 
approximately 100 toxicity studies, including sublethal and 
chronic and short-term studies in the mammalian species, mice, 
rats, rabbits as well extensive toxicity data associated with 
birds, with fish, with aquatic invertebrates, both fresh water 
and salt water, looking at a variety of end points from acute 
effects to chronic sublethal effects.
    And in our detailed analyses we take a look at all that 
information to determine what is the likelihood of direct 
effects on those particular species as well as what could be 
the indirect effects. Say for example, a reduction in 
invertebrate prey base and how that may affect fish 
populations.
    Mr. Markey. So do you believe that FIFRA, although it does 
function to screen out some of the most obvious risks to the 
environment is also capable of giving us the full picture of 
what these chemicals do after they enter the environment?
    Dr. Bradbury. Yes, I do.
    Mr. Markey. You do? Thank you. Thank you, Mr. Chairman.
    Mr. Lucas. The gentleman yields back. The Chair yields 
himself five minutes.
    Gentlemen, in a letter dated March 10, 2011, EPA 
Administrator Jackson on behalf of the Departments of USDA, 
Commerce, and Interior requested that the National Research 
Council convene an independent science review of several issues 
related to the Federal Government's responsibilities under ESA 
and FIFRA.
    This letter is a clear recognition that the science on 
these biological opinions is flawed and that the Federal 
agencies appear unable to resolve the concerns. Can you 
gentlemen commit today that this peer review will be a 
comprehensive review of all aspects of the biological opinion 
process, including a review of the method by which economic 
impacts are evaluated?
    And as Mr. Markey would say, that sounds like a yes or no 
question. Mr. Schwaab?
    Mr. Schwaab. Mr. Chairman, I listed in my both written and 
oral testimony the specific areas of investigation that we have 
articulated in consultation with the other agencies as a focal 
point of that review. I would be happy to review them again if 
that would be to your----
    Mr. Lucas. Dr. Gould?
    Dr. Gould. The NRC study was very specific and it has been 
defined by my colleague from NOAA Fisheries and I don't believe 
it includes specifically an economic review as part of a 
science evaluation.
    Mr. Lucas. Dr. Bradbury?
    Dr. Bradbury. The scientific issues that my colleagues have 
touched upon in their testimony I believe as in my testimony as 
well reflects the significant scientific issues that we have 
faced in the past and which become crystallized, if you will, 
in the biological opinions.
    At this point the charge to the NRC doesn't include 
economics sciences, if you will, in terms of the charge that we 
have placed before the National Academy.
    Mr. Lucas. Gentlemen, I must admit to you I am disappointed 
because what I am hearing is that this will not be a truly 
comprehensive process. And I think that is one of the many 
things that many of us on both committees are concerned about 
is that if the EPA Administrator took the efforts on behalf of 
so many agencies of the Federal Government to request that this 
National Research Council convene such an independent review 
that perhaps it does need to be comprehensive in nature and 
cover all the aspects.
    Dr. Glauber, in your view what is the impact of the no 
spray drift buffers on agriculture?
    Dr. Glauber. I think as I outlined in my testimony, Mr. 
Chairman, the no spray buffer I think for the most part the 
assumption is that there would be very little agriculture that 
could be grown in that area just because of the fact that there 
is no other alternative available. I mean a lot depends on the 
specifics of what is being prohibited, but certainly in the 
assumptions that we made in looking at this analysis of the 
toxic case that is the assumption we used and it is an 
assumption that has been used by the Services in some of their 
analyses.
    Mr. Lucas. So along that line, Dr. Glauber, is it fair to 
say there is a role for increased economic analysis of the 
impact of these decisions and rules.
    Dr. Glauber. In think insofar as the measures and the 
alternatives are concerned, I think that is where you get the 
economic impacts and that is what needs to be analyzed I think 
and an appreciated. Yes.
    Mr. Lucas. And it would seem that the economics, the issues 
that we would be looking at in such a study depend on what the 
alternatives are that are available, do you feel that enough 
consideration has been given to reasonable and prudent 
alternatives?
    Dr. Glauber. I think there again we are certainly willing 
to extend our expertise. I think the Services have been calling 
on us as of late, but I think that is where more information 
could be brought to the process. Absolutely.
    Mr. Lucas. On the April 5, the EPA received a letter from 
Representative Markey and others, asking whether the EPA would 
initiate cancellation procedures for any of the pesticides 
dealt with under the first biological opinions received from 
the National Marine Fisheries Service. Can you please outline 
the cancellation procedure under Section 6 of FIFRA, with 
specific emphasis on the due process rights of the registrants 
and the burden of proof you must meet regarding EPA safety 
assessment of the product in furtherance of a cancellation 
proceeding. Step up guys.
    Dr. Bradbury. I will quickly go through that. The steps in 
a cancellation process start with EPA issuing a draft notice of 
intent to cancel. And in that document we lay out the 
scientific issues and other aspects of the registration 
information before us that leads us to that conclusion.
    There is then a requirement that the scientific advisory 
panel, which I referred to in my oral and written testimony, 
then does a scientific peer review. At the same time, the 
Department of Agriculture, and if the product has a public 
health implication, Health and Human Services also performs a 
review on our draft notice for intent to cancel.
    Once those reviews are done the agency then evaluates that 
input. And if we conclude that we still need to proceed with 
the cancellation, we will issue a final cancellation notice. At 
that time the registrant, the manufacturer of the pesticide has 
the right to request an administrative hearing, handled by an 
administrative law judge. And in that hearing there will be 
testimony presented, witnesses presented.
    During that time frame, if the registrant requests due to 
scientific issues of fact, there can be a request for a 
National Academy of Sciences review as part of this overall 
process. Once that is done, if the agency still concludes the 
product should be canceled, the registrant has the ability to 
go to the Federal courts for additional effort.
    The burden of proof the registrant has the responsibility 
to establish that its product can meet FIFRA's standards. So 
the agency's role is to look at the science and determine 
whether or not it can still meet that standard and/or whether 
or not there is sufficient uncertainty that draws into question 
whether or not the product is meeting the standard. And the 
registrant has to provide the information to establish that it 
does meet the standard under FIFRA.
    Mr. Lucas. Mr. Chairman, thank you for indulging me. And I 
would just note I don't know how you move forward with a 
cancellation process or maybe any other process if there is a 
conflict between the view of science from the various Federal 
agencies. And with that, the Chair would recognize Mr. Cardoza 
for five minutes.
    Mr. Cardoza. I would like to ask Dr. Bradbury, Dr. Gould, 
or Mr. Schwaab if one of you can walk us through the exact 
steps of a Section 7 consultation and in light of these 
multiple lawsuits how do you know when you have adequately 
completed a consultation?
    Dr. Bradbury. I can go through the steps real quickly. What 
happens when you have an action undertaken by a Federal agency 
they have under the law a responsibility to conserve and 
protect ESA-listed species. So they actually send a biological 
assessment of the action they are undertaking to the consulting 
agencies, which would be the Fish and Wildlife Service, the 
National Marine Fisheries Service.
    We then go through that information about the action and we 
go further than just reproductive effects or kill/no kill 
mortality effects. We look at cumulative effects. We look at 
effects on behavior. We look at things like how that particular 
action is addressed in concert with other stressors that are 
affecting a particular species. We look at the geographic scope 
of the action they are talking about. Very often the action is 
going to affect an endangered species in a very limited area 
and if we determine there is a potential jeopardy or adverse 
modification of critical habitat, then we will go back to the 
action agency with some reasonable and prudent alternatives. 
And that is our little discussion with them.
    Mr. Cardoza. Thank you, sir.
    Let me drill in a little bit here. How does your agency 
ensure that it has done a good enough job to prevent legal 
action against you, if you could answer briefly? Is there a 
method by which you review your own work to ensure that you 
don't get sued and is that something that you contemplate 
happens pretty regularly?
    Dr. Bradbury. We use the best scientific information we 
have available to us and to the action agency. If we follow the 
time lines that are required, we usually are protected from 
suit.
    Mr. Cardoza. How many consultations have the Services 
completed in the last ten years and how many more are in the 
queue?
    Dr. Bradbury. In the last ten years? We literally do tens 
of thousands a year.
    Mr. Cardoza. Tens of thousands?
    Dr. Bradbury. Yes.
    Mr. Cardoza. In EPA's experience, is there a difference 
between the amount of a pesticide actually used in the field 
and the amount of a pesticide allowed by the pesticide label?
    Dr. Bradbury. Typically, as we do our risk assessments, 
especially our reevaluation risk assessments we look at what is 
on the label as well as what information we are getting from 
the USDA or the states in terms of how the products are 
actually used. Typically, the amount that growers are using is 
less than what is specified on the label.
    Mr. Cardoza. That is what I thought. So it would 
inconceivable to assume that every producer of every crop would 
apply every allowable pesticide at the maximum dose.
    Dr. Bradbury. I would believe that would be a low 
probability event.
    Mr. Cardoza. Back to Dr. Gould. Is the current process that 
you engage in is it the most efficient use of taxpayer dollars 
to achieve the taxpayer's goal, which would be to protect the 
public, yet allow farmers to be able to produce the crops?
    Dr. Gould. What we carry out is consistent with the law, 
the ESA. And we believe with the resources we have we are very 
efficient in providing advice.
    Mr. Cardoza. That is not my question, sir. Do you think we 
could have more efficient processes that would both protect the 
consumers and protect farmers?
    Dr. Gould. We believe that the law could be improved 
administratively to increase efficiencies in the processes.
    Mr. Cardoza. Thank you, sir.
    Mr. Lucas. The gentleman yields back his time. The Chair 
would note to the Members that we will rotate between majority 
and minority members of each Committee back and forth. And with 
that, the Chair would recognize the gentleman from Tennessee, 
Mr. Fleischmann, for five minutes.
    Mr. Fleischmann. Thank you, Mr. Chairman.
    My first question is for Dr. Bradbury. Dr. Bradbury, what 
evidence, if any, has been provided by the Services to EPA to 
support a conclusion that currently registered pesticides are a 
leading factor contributing to the endangered and threatened 
status of specific species, sir?
    Dr. Bradbury. With respect, I think this question should 
also be answered by my colleagues from the Services who are the 
expert agencies in looking at the causes for species being 
listed and the relative role in the listing.
    In our effects consultations in our analysis and our 
biological opinions that we are working through with the 
Services, understandably the focus is on our Federal action, 
which is the registration of a pesticide. So the document and 
the work that we are doing with the Services are focused on the 
role of the pesticides with some effort to look at cumulative 
effects. But I could defer to my colleagues from the Services 
to discuss the relative role of pesticides and listed species 
decisions.
    Mr. Fleischmann. That would be fine if they would like to 
answer.
    Mr. Schwaab. Thank you, Mr. Fleischmann.
    I would simply echo that we use the best available science 
to identify both direct as well as some of the indirect effects 
that were articulated previously to assess the potential 
implication and potential harm associated with the use of these 
pesticides in both the ways prescribed on the label and in 
application rates that might be at less than full label use. 
Those factors come into a finding of jeopardy and also factor 
into the discussion with the action agency regarding reasonable 
and prudent alternatives.
    Dr. Gould. I might add from the Service's perspective that 
we really focus in not only on the direct, indirect, and 
cumulative effects, but the geospatial effects. But we are also 
looking at potential behavioral effects, olfactory endocrine, 
endocrine disruptors. That sort of thing that have a broader 
impact on a species based on the environment, even to a larger 
extent greater than the pesticide area of use.
    Mr. Fleischmann. Thank you.
    My next question is for Mr. Schwaab and Dr. Gould. Can you 
tell me how both of your respective agencies define an effected 
stream for purposes of potential buffer zone for pesticide 
application?
    Mr. Schwaab. Mr. Fleischmann, my best understanding is that 
this would be either a stream where there has been denoted the 
presence of affected listed species or in some cases streams 
that would flow into other water bodies in ways that house 
affected species.
    Dr. Bradbury. Sir, the Fish and Wildlife Service hasn't 
really participated at this point or conducted a consultation 
that would be related to stream buffers, so I would have to 
defer to my colleague from NMFS at this point. So I don't have 
a specific answer I can give you.
    Mr. Fleischmann. Thank you. Mr. Chairman, I yield back.
    Mr. Lucas. The gentleman yields back. The Chair recognizes 
the gentleman from California, Mr. Garamendi for his five 
minutes.
    Mr. Garamendi. Thank you, Mr. Chairman. And the 
participants who are here at the hearing thank you very much.
    During your testimony I was diverted to look at the history 
of this, the time lines going back to 1980, the Endangered 
Species Act, the EPA's responsibility on pesticides and the 
rest and it appears to me that since 1980 this has been a 
wrestling match that has gone on and on and on. And ultimately, 
the Courts have instructed the parties at the table to get on 
with enforcing the law, is that correct? Are you being ordered 
by the Courts to do what the law says you are supposed to do?
    Dr. Bradbury. As I indicated in my testimony, as you 
indicated 20 plus years of challenge in implementing the ESA, 
including efforts in the late eighties/early nineties when the 
agency was trying to move forward with protection measures that 
frankly weren't as sophisticated as they can be today and 
Congress was concerned that our activities in trying to do 
endangered species protection could be jeopardizing food and 
fiber production.
    So we spent a number of years trying to develop the methods 
to refine our approaches to ensuring endangered species 
protection. And you are correct, over time the agency was sued 
for failing to consult on pesticides as its methodologies were 
being developed. And my written testimony refers to some of 
those cases.
    Mr. Garamendi. I appreciate that. And I think I will just 
forego the answers to the others. What we are trying to deal 
with here is to sort out how best to implement the law, which 
requires consultation. And for 20 years for years, some of it 
having to do with administrative decisions by one or another 
administration or lawsuits we haven't gotten there.
    It seems to me what we are dealing with here are poisons. 
Poisons to humans, poisons to aquatic as well as terrestrial 
species and we are trying to figure out how best to regulate 
the use of those poisons. Is that the case? Is that what we are 
trying to do here?
    Dr. Bradbury. What we are trying to do here, in my opinion, 
and I defer to my colleagues too to give their thoughts on this 
issue, is we are working toward integrating the processes and 
directives that are within FIFRA and blending those or 
connecting those requirements that we have in the Executive 
Branch with the requirements that the Endangered Species Act 
provides. And we are working toward a handoff, if you will, to 
ensure that the risk assessments that we do and the regulatory 
decisions that we do in EPA to ensure those products do not 
cause unreasonable adverse effects to the environment when we 
need to have a consultation to then work with the Services to 
bring their expertise to bear to ensure that we are protecting 
listed species appropriately.
    Mr. Garamendi. And in addition to the expertise of the two 
agencies, Fish and Wildlife and NOAA, you are now reaching out 
to the National Academy of Sciences and asking for their 
assistance in providing additional scientific input, is that 
correct?
    Dr. Bradbury. That is correct.
    Mr. Garamendi. Do you have a time line for the completion 
of this process?
    Dr. Bradbury. The work that we are doing with the NRC, and 
we are getting the details worked out on the contract with NRC, 
at this point they are estimating 18 months to complete the 
peer review process.
    Mr. Garamendi. Just a comment then. There was a question 
asked earlier about whether you got a specific response to a 
letter. You may not have, but what you seem to have is a 
specific contract amongst the three agencies to carry out a 
scientific study, is that correct?
    Dr. Bradbury. I would term it a peer review. So in other 
words, we are going to provide the National Academy different 
perspective, approaches to dealing with these scientific issues 
and get their feedback on methodology as we go forward.
    Mr. Garamendi. My final question has to do with my own 
history. I have been listening to this and involved in these 
debates since 1974 and always it seems to come down to we can't 
do it because it is going to be economically difficult. On the 
other hand, if the economic difficult is poisoning people and 
animals and other creatures it is very significant. I want you 
to get your work done as quickly as you possibly can. Buffer 
zones are very common. There are many ways to deal with buffer 
zones and the like.
    But I can tell you as a person that lives in an 
agricultural area when the aerial spraying goes over my house I 
get really upset because I know there are certain creatures 
living in that house that are affected by that spray. And so I 
am equally upset when that spray goes over the river or into 
the ditches and hence, into the environment.
    I hope you carry on your task expeditiously. Thank you. I 
yield back my time.
    Mr. Lucas. The gentleman yields back. The Chair now 
recognizes the gentleman from Illinois, Mr. Johnson, for his 
five minutes.
    Mr. Johnson. Thank you, Mr. Chairman. Thank you Ranking 
Member and thank you Mr. Chairman Hastings and Ranking Member.
    Let me direct a couple of questions to Mr. Schwaab and hope 
that you can maybe fill us in a little on your direction and 
thought. Does your agency consider, and if you do, to what 
extent the specific economic costs to farmers and other users 
as well of the reasonable and prudent alternatives for the 
reasonable and prudent measures that are outlined? And if so, 
could you maybe bring us up-to-date on how that is evolving and 
how effective that is?
    Mr. Schwaab. Yes, sir. Costs are factored in, in discussion 
with the action agency around reasonable and prudent 
alternatives and that is the place at which costs, in fact, are 
factored in. As to further detail, I am not sure honestly what 
it is you are seeking.
    Mr. Johnson. I guess I am seeking specifically what your 
agency does and what you do to consider and to what extent do 
you consider the cost to farmers. I mean I share some of Mr. 
Garamendi's comments, but I am also concerned as I assume he is 
and other members of the Committee are what this is doing to 
our economic infrastructure. I am concerned that your agency, 
at least in my observation, perhaps do as complete a job in 
analyzing what those costs as I would like to see done.
    I guess I want to know how that process is going and how 
specifically you deal with those issues of cost? Is that clear 
enough for you or do you want me to say it again?
    Mr. Schwaab. No, apologies, sir. The steps that are taken 
to address the costs of alternatives is something that is 
frankly undertaken iteratively with the action agency. So we 
deal with an action agency who is ultimately then responsible 
to the end users who are affected by the action of that agency. 
So the discussion of potential reasonable and prudent 
alternatives is generally and largely an iterative process. It 
is possible that Dr. Gould might have some additional thoughts 
on that from the Fish and Wildlife Service perspective.
    Dr. Gould. We usually have a very specific----
    Mr. Johnson. Actually, I have a limited time and I was 
wanting a response from Mr. Schwaab, so I appreciate that. 
Maybe you could do that later on, but I only have two minutes. 
So how do you make the determination Mr. Schwaab as to what 
economic feasibility is in regard to these proposed RPAs? How 
do you make that determination?
    Mr. Schwaab. So the focus is on taking steps that would 
remove jeopardy to the affected species as a result of the 
proposed action and the iterative with the action agency would 
focus----
    Mr. Johnson. What does iterative mean?
    Mr. Schwaab. I am sorry.
    Mr. Johnson. For those of us who use normal words, what 
does that mean?
    Mr. Schwaab. In discussion with the action agency, we would 
propose alternatives and then we would have some discussion 
around what some alternative actions might be that would be 
least costly to the end users, but achieve the objective of 
removing jeopardy or adverse habitat modification.
    Mr. Johnson. And again for Mr. Schwaab, what are your 
estimated cost, specifically for agriculture and I guess for 
others that use the products here that are outlined in your 
first NMFS pesticide biological opinion?
    Mr. Schwaab. Sir, I don't have that data with me. I would 
be happy get that.
    Mr. Johnson. Yes, if you could just provide that to our 
Committee staffs, that would be great.
    Mr. Schwaab. Thank you.
    Mr. Johnson. And I guess my last question is really a 
comment. And that is I don't think there is any member of 
either Committee who doesn't share the concerns your agencies 
oversee or the concerns of a citizenry and a wildlife citizenry 
that is protected. But I also don't think, at least speaking 
for myself, that there are many members of this Committee who 
don't also have a substantial concern about what is happening 
in the economy and how what you are doing directly or 
indirectly impacts that. So I hope you will be advised that 
among other things we are concerned about the overall structure 
of things.
    Thanks for your testimony and your time.
    Mr. Lucas. The gentleman yields back. The Chair would offer 
two housekeeping notes. Number one, any responses or 
information should be provided to the staffs of both 
Committees. Number two, in the order up will be Mr. Costa, Mr. 
Fleming and then Mr. DeFazio. With that, the Chair recognizes 
Mr. Costa for five minutes.
    Mr. Costa. Thank you very much both Chairmen and Ranking 
Members for your efforts here.
    I stepped out for a moment, but Dr. Bradbury I am trying to 
understand better whether or not you believe or the EPA 
believes that further legislation is necessary or whether or 
not you have the ability to deal with efforts on the biological 
opinions through some efforts with a memorandum of 
understanding that would be I think far more expeditious and 
flexible in terms of how you work with your neighboring 
agencies that are there on the desk. Could you comment on that, 
please?
    Dr. Bradbury. Certainly. The agency doesn't believe 
change----
    Mr. Costa. I am talking about process here.
    Dr. Bradbury. Yes. And we don't believe there is a need in 
FIFRA or a change in the Endangered Species Act to move 
forward. The challenge is working through these scientific 
issues that I described, working through a public participation 
process, coming up with the risk mitigation measures that are 
tailored and focused and come up with an efficient process. We 
can do those things with the existing statutes. The challenge 
before us to get those relationships to be efficient and to 
move forward.
    Mr. Costa. I mean I think there is a general acknowledgment 
that that is the case, but in practice I think--and of course, 
we all know from our local areas in terms of our own 
experiences that we have had in this case at a Federal and 
state level. But it seems to me in the case of California where 
I have some experience that when we have talked about 
registration, for example, of both herbicides or pesticides 
that a very rigorous process that we have in California some 
would say more rigorous than your process in terms of 
determining before various pesticides or herbicides could be 
registered that that cooperation or that process that 
information some would say is totally ignored.
    Dr. Bradbury. If you could elaborate a bit, totally ignored 
in what context?
    Mr. Costa. In terms of the materials, the information that 
has developed in this case at the state level as to the 
efficacy, the methodology, the best science used for 
application of registration.
    Dr. Bradbury. Thank you for the clarification.
    Mr. Costa. I want to be clear.
    Dr. Bradbury. No, I appreciate that. I believe that our 
pesticide program and our colleagues in the California 
Department of Pesticide Regulation actually have a very close 
working relationship. And certainly, in our reevaluation 
process we use the use information that California collects as 
a very valuable source of information to understand how 
pesticides are used, which helps us to create very 
sophisticated and detailed risk assessments.
    I think your point about the role of the states and growers 
in the broader Endangered Species Act effort that we are 
talking about today is very important. And I think my 
colleagues from NOAA, Eric Schwaab, could talk a bit about how 
we are working together to bring in the state expertise as well 
as the growers.
    Mr. Costa. I would like to hear that. I would also like to 
find out from you whether or not you think the current process 
is flawed or not, whether it can be improved? I mean there are 
some that argue that, and I think in this area, generally 
speaking, our relationship has been better from California with 
the Environmental Protection Agency than it has been with some 
of the other agencies there that are being represented, 
frankly. But some believe that you are hiding behind these 
court-imposed deadlines to complete your tasks rather than 
focusing on making sure you get the best science and data 
available.
    Dr. Bradbury. I would like to have my colleagues also 
comment on your perspective. Certainly, we in EPA are focusing 
on improving the situation.
    Mr. Costa. So you think the process could be improved?
    Dr. Bradbury. Of course, so that is why we are going to the 
National Academy of Sciences. That is why we are having 
stakeholder meetings with growers and state lead agencies to 
better get their input into the process while we are working 
with our Federal advisory committee to get better----
    Mr. Costa. Yes. I want to get this question in on the 
record before my time expires.
    If no agreement can be reached regarding the economic 
effect in the National Academy of Sciences' inquiry, can we 
have a commitment from all the agencies that a hold would be 
put in place before further action takes place? You can all 
respond.
    Dr. Bradbury. I will let my colleagues jump in as well, but 
I think the comments that Chairman Lucas raised and you are 
raising around the economic issues is something we should take 
back to our agencies and take a look at the charge of the NAS 
and see about that.
    Mr. Costa. Let me suggest you do that. And I will ask both 
Chairs to indulge just for a moment and consider possibly 
sending a letter that could be signed to make that request 
because I think, frankly, these need to--we have put a lot of 
faith in the National Academy of Sciences to provide this. They 
are in the process on a different matter, but somewhat related 
reexamining the biological opinions in areas that both 
Congressman Garamendi and I are working on in a separate issue.
    But good science is what we always want to be used. And of 
course, the more that we learn on these things the more we need 
to understand its impact on a daily basis. So if both Chairmen 
if you would be willing to follow through on that I think it 
would be meritorious and be supported on a bipartisan basis.
    Mr. Lucas. The gentleman's point is very well made. The 
gentleman's time has expired.
    Mr. Costa. Thank you.
    Mr. Lucas. The Chair now turns to the gentleman from 
Louisiana, Mr. Fleming, for his five minutes.
    Mr. Fleming. I thank the Chairman.
    One thing I would like to address before I get to my 
question is this idea that we can have any regulation, any 
restriction no matter what the cost. I think as we approach a 
$15 trillion debt in this country we have to understand that 
any study has got to include the cost, cost versus benefit. Any 
business, any municipality, any other government always has to 
examine that. So as was just acknowledged, a reasonable and 
prudent alternative must be economically feasible.
    If you can't agree to ask the NSA to review your economic 
models, then I am afraid the NSA review will be insufficient to 
resolve these complex issues. So I wanted to be sure that we 
address that.
    I want to talk a moment about my home state Louisiana, but 
this issue goes far beyond Louisiana and certainly will in 
future years. In my home state aquatic plants have a serious 
impact on the wetland ecosystems, specifically giant salvinia, 
a plant species native to Brazil has taken over two key lakes, 
Caddo Lake and Lake Bistineau located in Northwest Louisiana. 
These giant mats have rapidly grown into dense blankets that 
kill the vegetation and fish below the surface by blocking the 
penetration of sunlight to the water. And this stuff grows 
inches by the day. It is an amazing type of plant.
    Salvinia infestation reduce boating and fishing 
opportunities because boats cannot maneuver, obviously, through 
these thick mats. So my question, Dr. Bradbury, are what 
herbicides, if any, are currently used to control or eradicate 
giant salvinia. Go ahead and answer that first and then I will 
follow up on a question.
    Dr. Bradbury. I don't have that information with me, but I 
can certainly get that information to you when I get back to 
the program.
    Mr. Fleming. I would appreciate it if you would get that to 
me in writing, or at least to the staffs and we will distribute 
that.
    And I would also like to know in follow-up, how would the 
biological opinions dealing with the impacts of pesticides on 
listed salmon affect the use of herbicide use to treat fresh 
water plants like salvinia, which are now found as far west as 
Southern California? So the idea is (a) what is available to 
us? In fact, we are going to have a field hearing in June, 
including my colleague, Mr. Gohmert, from Texas on this very 
subject and we need to know what the impact of those 
alternatives, those options, the herbicides, what effects they 
are going to have on certainly other species.
    My follow up question I think is just going to be too long 
in the period of time I have. So with that, I will yield back.
    Mr. Lucas. The gentleman yields back. The Chair now 
recognizes the gentleman from Oregon, Mr. DeFazio, for his five 
minutes.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Mr. Schwaab, I am concerned a little bit about NMFS, its 
resources and capabilities. And this goes to in this case three 
BiOps have been done, about half of the 37 pesticides. Now you 
are going to consult--and that is on a limited number of 
species. Now we are going to review on 200 species. I have been 
trying to get your agency to process a simple bar scale thing, 
that is, gravel mining which takes place with accumulated 
winter deposited rocks in a river where the people removing the 
rock never touch the water. I can't think of any more benign 
way to get aggregate. I can't get that out of your agency 
because you don't have resources and time.
    Then we have individual timber sales that have to be 
consulted on and now we are looking at all new forest 
management practices with the new opinion on the spotted owl. 
Where are you going to get the resources to do all this stuff? 
And as I understand it my colleagues on the other side of the 
aisle are proposing to cut your agency? Can you complete these 
in 120 days?
    Mr. Schwaab. Balancing a number of these challenges is a 
tall order for us as an agency. It is something that we 
struggle with, both in prioritizing and in responding on a 
daily basis.
    I will say that beginning in Fiscal Year '08 we received 
approximately $1 million specifically for pesticide 
consultation. There are six full-time equivalent positions that 
conduct these consultation and yet, we continue to be 
challenged to meet all of the deadlines, both in this specific 
area as well as in others.
    Mr. DeFazio. Isn't the statutory, once you begin formal 
consultation, 120 days.
    Mr. Schwaab. Yes, sir.
    Mr. DeFazio. And have you met that for anything recently?
    Mr. Schwaab. I would have to get back to you with a more 
detailed answer on that. The short answer is no.
    Mr. DeFazio. Right. So this is a concern. And I mean this 
needs to be put in the context of how we deal with this.
    Is there, and I would asked anybody there, is there a 
better way to coordinate this process among the agencies up 
front in terms of an evaluation which is somehow--I mean we 
have critical habitat designation. We have other ways of 
dealing with species concerns, which can cover very large 
areas. Is there any way that this could be approached more 
efficiently, coordinated among the agencies and get done 
without an individual consultation on every pesticide, on every 
species with these six people? I would expect that they will 
all be retired long before they have accomplished this task and 
then it will be intergenerational. So anybody got an idea how 
we can do this better?
    Mr. Schwaab. The only thing that I would offer at the 
outset, and it is not specific to this pesticide consultation 
issue is the opportunity that we have availed ourselves of with 
the Fish and Wildlife Service to move in the direction of 
developing integrated biological opinions where we have 
multiple species that are impacted.
    Mr. DeFazio. That is what I am getting at. Would there be a 
way, within a region or within at least a watershed, to cover a 
wide range of species with one consultation as opposed to 37 
times 200?
    Dr. Gould. I agree with Eric in this case. We need to get 
to a place where we do integrated consultations.
    Mr. DeFazio. Do you need different legal authority to do 
that? Can you do that under existing law? Can you do that under 
the court mandates?
    Dr. Gould. We would have to make some administrative 
changes to the process, which could be done through an 
administrative process, Federal Register process to get that 
done, but we could do it.
    Mr. DeFazio. Is that underway because this seems very 
desirable to me because we are never, ever going to get to the 
end of 37--I mean this is just one court case, 200 times 37, 
right?
    Dr. Gould. Congressman, we are working on it right now.
    Mr. DeFazio. Thank you. Thank you, Mr. Chairman.
    Mr. Lucas. The gentleman's time has expired. The Chair now 
recognizes the gentleman from Texas for five minutes, Mr. 
Neugebauer.
    Mr. Neugebauer. Thank you Chairman Lucas and Chairman 
Hastings for holding this very important hearing.
    Director Gould, I represent the 19th Congressional District 
and my constituents are very concerned about your agency's 
potential listing of the sagebrush lizard. And I want to thank 
you for reopening the comment period. And as you know, there 
were a couple of listing sessions just the past couple of weeks 
with a fairly major outpouring, a number of people that showed 
up at those hearings. And I am certainly hoping that the agency 
was listening to the folks that showed up for those hearings 
because, as you know, they were largely attended.
    There was an AP article regarding the dunes sagebrush 
lizard dated April 28. It said that, and I quote, ``Neither the 
environmentalists nor the Federal wildlife managers have 
population estimates for the lizard, but they point to 
distribution studies that show about a quarter of those sites 
where lizards were once found were no longer occupied.'' Is 
that a true statement?
    Dr. Gould. Sir, I am familiar with that particular article 
or the science behind the lizard that you are referring to, but 
I will get back to you with an answer to that question.
    Mr. Neugebauer. You said you are familiar with the science, 
is that correct?
    Dr. Gould. No, I am not familiar with the science related 
to that particular situation.
    Mr. Neugebauer. Would it be fair to say that it is a policy 
of the agency to list certain species when you don't have 
population data?
    Dr. Gould. I am not going to comment. I will get back to 
you because I believe we have to have population data, best 
available science to make a determination because it is not 
only based on the population status. It is based on threats. 
And I understand there is concern and that is why we reopened 
the comment period and that is why we are very willing to take 
input such as you just indicated that is going to affect our 
decision.
    Mr. Neugebauer. I think it is very disturbing. I think it 
would disturb Members on both sides of the aisle here if we 
felt like that the agencies were making decisions based on 
assumptions. And particularly, what we are hearing more and 
more is that some of the environmental agencies are being 
lawsuit driven in their decision making and not science driven.
    And just because somebody files a lawsuit against you, even 
if they prevail in that lawsuit I think we have to be careful 
that we are reactionary and we make up some assumptions so we 
can follow through with that.
    Dr. Gould. We are science-driven.
    Mr. Neugebauer. When I hear that you don't have population 
counts. Have you ever been quail hunting?
    Dr. Gould. Yes. Several times.
    Mr. Neugebauer. You know the covey isn't always where they 
were the year before.
    Dr. Gould. I understand.
    Mr. Neugebauer. But it doesn't mean the quail are gone. It 
just means the covey moved. This is a very important listing 
that is being proposed here. This has a huge impact on our 
nation, not just the 19th Congressional District or eastern New 
Mexico. But I mean this impacts our country because in the area 
that we are potentially listing about 20 percent of the 
nation's domestic oil production occurs in that area. And so 
when you start talking about a listing and then potential 
shutting down of wells or restricting the ability to produce 
additional energy resources for the American people that is no 
small matter. And certainly a decision that should be made on 
science.
    I won't even go down the road today of should we hold up 
America's energy supply for a lizard, but I am certainly 
bringing a point to your agency today. I believe that I and 
other Members, and I think one of them is sitting next to me, 
would concur that we are going to be watching this process very 
closely.
    And I know that overwhelming the testimony that has been 
heard, both in these recent hearings is opposed to this and 
question the science.
    The Chairman. Will the gentleman yield?
    Mr. Neugebauer. I would yield.
    The Chairman. I just wanted to say welcome to the club. You 
only have one listing. In my district I mentioned in my opening 
statement about all the listings of salmon and in addition to 
that we have the grey wolf and we have spotted owl, and I am 
sure I am overlisting. So I will just simply say welcome to the 
club from the standpoint of understanding how this has an 
impact on our economic well being. And I don't say welcome in 
the sense like come on aboard. I am just simply saying you are 
there, but I thank the gentleman for yielding.
    Mr. Neugebauer. And I appreciate both Chairman Lucas and 
Hastings. This is a very important hearing. And I see my time 
has expired. I will be looking forward to that information.
    Mr. Lucas. The gentleman's time has expired. The Chair now 
turns to the gentleman from the Northern Marianas, Mr. Sablan, 
for your five minutes.
    Mr. Sablan. Thank you very much, Mr. Chairman.
    First, I would like to commend the agencies before us for 
undertaking a National Academy of Sciences review on the 
specific scientific and technical issues related to the risk of 
pesticides on endangered salmon. But I have questions, and a 
yes or no answer would probably suffice.
    On pesticide and toxicity in use, Mr. Schwaab, are 
pesticides in question here harmful to juvenile salmon?
    Mr. Schwaab. Yes, sir. They certainly can be, both directly 
and indirectly.
    Mr. Sablan. Is there anyone on the panel that disagrees 
with this answer?
    Dr. Bradbury. I think the key to Mr. Schwaab's answer is 
that they can be. The evaluation of risks is a combination of 
what is the level of exposure combined with what the hazard is 
to determine whether or not there is risk or the potential for 
an adverse affect.
    Mr. Sablan. Dr. Gould?
    Dr. Gould. Could you repeat your question again?
    Mr. Sablan. Yes. Are the pesticides in question here today 
harmful to juvenile salmon?
    Dr. Gould. I am going to have to defer to my friend from 
National Marine Fisheries Service, specifically because his 
agency is specifically responsible for the salmon.
    Mr. Sablan. And Dr. Glauber, just yes or no.
    Dr. Glauber. I would say yes, but I would also second what 
EPA has said. I think this is a question of risk and trade-offs 
when you get to the measures and alternatives.
    Mr. Sablan. Now on the availability and use of data, Mr. 
Schwaab, does the National Marine Fisheries utilize the best 
available scientific information when formulating its 
biological opinions?
    Mr. Schwaab. Yes, we do. We use the best available science. 
And at the same we continually strive to improve on that 
science.
    And Mr. Sablan, if I could just clarify on that previous 
answer, or be more precise. It is dose and time of exposure 
that ultimately factor into----
    Mr. Sablan. The answer was no. And does the Service ignore 
or refuse to consider any data when formulating a biological 
opinion?
    Mr. Schwaab. No, sir. We give consideration to any data 
that is made available to us.
    Mr. Sablan. And did the Service use the USDA pesticide use 
data when formulating the biological opinion? You don't have to 
answer that if you can't.
    Mr. Schwaab. I am not sure exactly what data you are 
referencing there.
    Mr. Sablan. The data used for formulating the opinion, the 
USDA pesticide data.
    Mr. Schwaab. So if it were labeled concentrations and 
ingredients, the answer is yes.
    Mr. Sablan. Thank you.
    And on the consultation process again, Mr. Schwaab, would 
you please discuss the ways that the National Marine Fisheries 
Service has provided for public participation during the 
consultation process.
    Mr. Schwaab. So generally, the consultation, sir, is 
between the action agency and the evaluating resource agency, 
and in this case the National Marine Fisheries Service. So 
often draft biological opinions are made available. There are 
then further opportunities for discussion in the process, both 
with the action agency and sometimes extension into affected 
communities. That is something as we spoke of in our collective 
statements an area we want to build upon going forward.
    Mr. Sablan. And I am assuming now that with the continuing 
process there has been improvement with each subsequent 
biological opinion.
    Mr. Schwaab. Yes, sir. We have created opportunities, 
particularly as it relates to pesticides to reach out more 
directly to affected communities in several different ways.
    Mr. Sablan. Thank you, Mr. Chairman. I yield back.
    Mr. Lucas. Would the gentleman yield before he yields back.
    Mr. Sablan. Yes, I do.
    The Chairman. I want to follow up on a question that you 
asked about the best available science and Mr. Schwaab, you 
answered very definitively yes. In my earlier questions, and I 
asked Dr. Bradbury if NMFS had responded to some concerns they 
had and one of them was this, and I will quote, ``The draft 
seems not to acknowledge the agricultural chemicals are 
secondary stressors, therefore considered to be a minor factor 
in the species survival relative to other factors.''
    Now that seems to me some sort of a scientific aspect to 
that. And Dr. Bradbury said you hadn't responded. Could you 
respond to this Committee specifically on that question and how 
the best available science that you are employing is relative 
to what that statement was?
    Mr. Schwaab. Yes, sir, Mr. Chairman.
    The Chairman. The time is running out. I just want you to 
tell me that you will respond to that quote that EPA had sent 
you over two years ago. If you could respond to that, on how 
that works in with the best available science I think the 
Committee would like to have an answer to that because you 
answered affirmatively to Mr. Sablan saying that best available 
science was being used. So if you could respond, I would 
appreciate that.
    Mr. Schwaab. Do you want me to do that now?
    The Chairman. No, respond in writing because my time is 
obviously up.
    Mr. Schwaab. OK.
    The Chairman. Thank you. Thank you, gentleman, for 
yielding.
    Mr. Lucas. And the gentleman's time has expired. The Chair 
now recognizes the gentleman from Florida, Mr. Southerland for 
five minutes.
    Mr. Southerland. Thank you, Mr. Chair.
    Florida agriculture is the second largest economic 
contributor in the state with a $12 billion economic impact. 
However, Florida's many diversified crops are relying upon safe 
and reasonable access to crop protection tools and pesticide 
production. I want to ask Dr. Glauber this question.
    What is the impact or potential impact on Florida's ability 
to continue to provide wholesome food supplies to our nation 
through these overlapping regulations, which may not be based 
on the best available scientific information?
    Dr. Glauber. Congressman, I think again a lot depends on 
what measures and actions are put in place. If we are talking 
about no spray buffers or whatever and there is no potential 
substitute biological or cultural controlled method, then it 
could be very adverse in the sense of prohibiting no production 
along those waterways.
    Mr. Southerland. Moving on, I know agriculture accounts for 
70 to 80 percent of all pesticides in use. Mr. Schwaab and Dr. 
Gould, do the Services consider the cost of to farmers and 
other pesticide users of the reasonable and prudent 
alternatives, the RPAs, and the reasonable and prudent 
measures, RPMs, outlined in the biological opinions?
    Mr. Schwaab. Yes, sir.
    Mr. Southerland. I know you have been asked that.
    Mr. Schwaab. As I indicated earlier, the cost is factored 
in, in the development and choice amongst reasonable and 
prudent alternatives.
    Mr. Southerland. So not just the cost and the use of the--
so you are saying that the economic challenges is factored into 
your decisions?
    Mr. Schwaab. That would be factored into the selection of 
reasonable and prudent alternatives. Yes, sir.
    Mr. Southerland. All right. Now how does the Fisheries 
define what is economically feasible with regard to proposed 
RPAs in your biological opinions. Define that for me.
    Mr. Schwaab. I am not sure I can give you, sir, here today 
an all encompassing definition of that. That would be something 
that would be developed on a situation-by-situation basis. It 
is true that we have to take actions to remove jeopardy or to 
avoid actions that would allow jeopardy to continue. So the 
economic factors are in a sense, by statute, secondary to that. 
But they are factored in once you look at the available tools 
that would be there to either avoid jeopardy or to prevent 
adverse modification of habitat.
    Mr. Southerland. Is there any effort on the Service's part 
to incorporate input from industry groups and those who 
actually utilize these, farmers and those in agriculture to 
determine what reasonable is, or is it solely based reasonably 
defined by individuals that are Federal employees?
    Mr. Schwaab. Sir, I would say first, as I indicated 
earlier, this is first and foremost a conversation that occurs 
between the action agency and the reviewing agency. Obviously, 
in addition to that we are always, particularly as we are 
looking to do in this case, reaching out with that action 
agency as well as independently to gain a better of 
understanding the particular perspectives of the stakeholders.
    Mr. Southerland. Is that a no, though? Is there a no that 
there are no industry individuals, companies, or farmers their 
input is not used in defining what is reasonable?
    Mr. Schwaab. No, I would not say that is a no. I would say 
that is a yes, although predominately through the action agency 
at this point.
    Dr. Gould. We, the Fish and Wildlife Service and NMFS have 
when we work with the action agency we may come up with some 
initial RPAs, reasonable and prudent alternatives. We have an 
opportunity to work with the action agency to work with the 
affected stakeholders. And we would welcome additional RPAs 
that maybe even developed by them for consideration. We are not 
going to do this in a vacuum because we understand the effects 
of our actions on those particular folks.
    Mr. Southerland. I want to reiterate. I know we have talked 
about comprehensive reviews of your recommendations and your 
studies. I know we have talked about reaching out with the 
National Academy of Sciences and I just want to implore that 
the economic impact has to be considered.
    I know that Mr. DeFazio made reference to cutting your 
budget. Who pays for your budget? Who funds your budget? It is 
the hardworking men and women in the small farms and those that 
support agriculture who produce tax revenue that comes into the 
Treasury, and that is the only way that you get an increased 
budget. And as these rules are passed down and eliminates small 
businesses, it is hard for you to have, though, a growing 
budget with a decreasing agriculture environment where people 
cannot survive. So if you are going to have a comprehensive 
study, it has to include economic impact. I yield back.
    Mr. Lucas. The gentleman's time has expired. The Chair now 
recognizes the gentlelady from Hawaii and then the gentleman 
from Georgia will proceed after her. You are now recognized.
    Ms. Hanabusa. Thank you, Mr. Chair.
    I would like to start with Mr. Schwaab. During Mr. Markey's 
questioning, people may have gotten the impression that the 
FIFRA registration process and the ESA consultations are 
duplicative. In your opinion, are these two statutes redundant 
in the information they provide, or do these two laws have to 
work together to adequately protect the endangered species?
    Mr. Schwaab. Thank you Congresswoman. We obviously have the 
greatest expertise as it relates to implementation of the 
Endangered Species Act. That is a process that is set up and 
importantly directed to the protection of rare, threatened, and 
endangered species. We see opportunities, as we have in this 
process, for greater integration of the processes and goals of 
FIFRA with the processes and goals of the Endangered Species 
Act and think there is a place for and benefit to be derived 
from each.
    Ms. Hanabusa. Along that line, do you believe that the way 
to improve this process by meeting the requirements of the 
Endangered Species Act that is somehow--how are you going to do 
it without compromising the FIFRA registration process?
    Mr. Schwaab. Thank you. A number of concerns in that regard 
are particularly the focus of the terms that are articulated in 
this National Academy of Sciences study, reconciling some of 
the risks and exposure modeling, some of the ways in which we 
deal with consideration of ingredients, exposure levels, 
different levels of impact, direct/indirect, sublethal and the 
like, cumulative, et cetera, all areas that are ripe for 
further investigation as we look to better integrate these two 
processes.
    Ms. Hanabusa. Do you anticipate that it may result with 
some sort of new regulations that will have to be instituted?
    Mr. Schwaab. I think it would be premature to judge that.
    Ms. Hanabusa. I would like to now ask some questions of Dr. 
Bradbury.
    Dr. Bradbury, when you began your testimony, you made the 
statement that when used properly pesticides provide 
significant benefits to society, such as controlling disease-
causing organisms and so forth, yet, throughout the testimony 
what we are hearing is this conflict with the consultation 
process. My first question is on the consultation process you 
also listed in your testimony a whole line of cases that 
obviously you are contending with. Is the consultation process 
that was anticipated under the Endangered Species Act is that 
different from the consultation process which you must engage 
in as a result of a court injunction or the court orders that 
you have listed?
    Dr. Bradbury. I believe the challenge that we are working 
through with our colleagues in the Services transcends a 
litigation case versus our registration process in folding the 
consultation process into that. What we are working through is 
how to ensure that the science we use in our registration 
analysis has the kinds of information and analysis that then 
allows for an efficient consultation process if we determine 
that we need to go into consultation. So the work has been 
ongoing with our technical workgroup and now getting some 
advice from the National Academy of Sciences is directed toward 
how, as I think I said in my opening comments--really the 
question is how to create a very efficient and effective hand 
off between the science we do under FIFRA and the science that 
has to happen in the consultation process.
    Ms. Hanabusa. And you may not have enough time to respond, 
so you may have to do this in writing. I see in your testimony 
also the reference to a review process every 15 years. I also 
see that the registration process is a condition, of FIFRA, and 
the consultation process seems to be a condition of the 
Endangered Species Act. So at what point does one trump the 
other? In other words, does the consultation process trump 
FIFRA or the registration process and/or at what point do you 
make a determination that you must engage in the consultation 
process? Because in your synopsis of the cases you made it very 
clear in parentheses consultation if necessary. So there is a 
determination process and consultation is necessary.
    I see we are out of time so, Mr. Chair, can you ask him to 
respond in writing, please?
    Mr. Lucas. Absolutely. The gentleman will respond to both 
Committees.
    Ms. Hanabusa. Thank you very much.
    Mr. Lucas. The gentlelady's time has expired. And the Chair 
now turns to the gentleman from Georgia for his five minutes.
    Mr. Austin Scott of Georgia. Thank you, Mr. Chairman.
    And I want to go back to what my colleague Mr. Southerland 
was talking about. And my question specifically for you, Mr. 
Schwaab would be when you are in the rulemaking process are the 
economic consequences and recreational opportunities for the 
American citizen considered and taken into account in the 
rulemaking process? All I hear is best available science, best 
available science, best available science. And I want to know 
if the economic consequences of that rule and the impact on the 
American citizen from a recreational standpoint are taken into 
account.
    Mr. Schwaab. Yes, sir. Overwhelmingly so in our rulemaking 
processes. We are speaking here particularly about a 
consultation process and the economic circumstances are 
factored in, in that reasonable and prudent alternative 
development phase.
    Mr. Austin Scott of Georgia. You say overwhelmingly so. I 
want to get back to, and it doesn't seem to me that it matters 
what we are talking about. We have a problem here in that we 
don't trust you in the rulemaking process. I mean that is the 
bottom line. We are not scientists. We have to work together 
and yet, what I see, and I have only been in Congress for four 
months, so it is indifference, if you will, from agencies 
toward the American citizens and toward, quite honestly, 
Congress in many cases when we ask the questions. And I just 
tell you a gentleman from Georgia when Matheson and Stevenson 
was passed expressed concern with your agency, the Tampa office 
specifically, over the fact that they were using science to 
change the limits on fish in the Gulf of Mexico. And they 
determined that instead of four snapper you should be allowed 
to keep two.
    Now this person fished a lot in the Gulf of Mexico and 
truly believed that changing the seasons was the better 
alternative because of the by-product. When you throw a snapper 
back it is dead, basically. That is the real science.
    The agency then turned around and cut the limit. Turn 
around the next year and used the science again to say we 
should have shortened the seasons. We are going to shorten the 
season. I tell you the person that made that phone call that 
was basically told by the people in Tampa that they didn't care 
what they thought was me. And I mean what happens when American 
citizens are treated that way by your agencies they become 
reluctant to support you, even when you have the common goal of 
sustainable fisheries.
    And I guess my question is where do we find the balance 
between science, the economy, and the American citizen and what 
they need with regard to recreation and a safe environment?
    Mr. Schwaab. Thank you, sir, for that example because 
perhaps it also gives me an opportunity to clarify my use of 
overwhelming because fishery management decisions were the 
context in which I was particularly thinking in that regard 
where extensive social and economic evaluations of the 
implications of all the rules that we put forward are a 
significant part of that process.
    The other thing I would note for you is that particularly 
as it relates to seeking the balance in a fishery management 
context we work very closely with eight regional fishery 
management councils. Those councils are made up of recreational 
fishermen, commercial fishermen, state agency heads. And it is 
often those councils that make those decisions around, for 
example, season lengths and the trade-offs between----
    Mr. Austin Scott of Georgia. Mr. Schwaab, I apologize for 
interrupting. We are short on time and I going to say this and 
I am going to yield back.
    With all due respect, and I don't know you, but one is I 
would like to see the Director of the Office of Sustainable 
Fisheries at some point to discuss it with them. But there was 
little to no regard for the recreational fisherman in the 
rulemaking process with regard to snapper in the Gulf of 
Mexico. Thank you.
    Mr. Lucas. Would the gentleman yield to me before he yields 
back.
    Mr. Austin Scott of Georgia. Yes, sir.
    Mr. Lucas. I would just like to offer an observation that 
the Services assert they use the best available data, yet in 
acknowledging their models are fundamentally flawed they have 
asked NAS to help define best available data. Clearly, the 
Services aren't using the best available data as they have 
suggested today, considering the economic impact where their 
opinions could have on agriculture and forestry. I had hoped 
that we would first fix our models before we began discussing 
implementation of those opinions.
    The gentleman yields back. The Chair now recognizes the 
gentleman from Arizona for five minutes.
    Mr. Grijalva. Thank you, Mr. Chairman.
    I appreciate all the conversation. The issue of balance and 
where economic benefit becomes part of the balance process both 
in consultation and under FIFRA with EPA. But let me for the 
moment interject another species into the discussion.
    EPA estimates that between 10,000 to 20,000 farmer workers 
are poisoned to one degree or another by the use of pesticides, 
that the children have the highest risk of exposure to 
pesticides through drift around their schools, their parks, 
their backyards. And that Ranking Member Markey mentioned those 
three studies. One of them in particular talked about one of 
the pesticides being used and there was a study on farm worker 
women and their children and found that by the age of seven 
there was a determinable drop in IQ and developmental ability 
on the part of children under seven.
    I mention those because my question is, Dr. Bradbury, is it 
true that under FIFRA the EPA can register pesticides that pose 
a risk of concern to humans as long as it can be shown that the 
economic benefit outweighs the risk? Is that true?
    Dr. Bradbury. That is not true. If the pesticide is a food 
use pesticide, so it is used on crops that get into the human 
food supply then we operate under the Federal Food, Drug, and 
Cosmetic Act and that is a risk only statute so they have 
unreasonable adverse effects. Any reasonable certainty--no harm 
we don't register the product.
    Mr. Grijalva. So following that logic then the EPA when you 
measure adverse effect, does that chronic and long-term health 
effects on humans? Is that part of the study process?
    Dr. Bradbury. Among the hundred plus studies that we 
receive from the registrant, that includes chronic studies, 
cancer, bioacidities in rats and reproductive developmental 
studies. In addition, we look at the published literature, 
looking at epidemiology studies.
    In fact, in the last year or so we have met with our 
Science Advisory Panel to get advice on how to better interpret 
epidemiology studies and how to bring those studies into the 
overall risk assessment process.
    Mr. Grijalva. Back to that study, chlorpyrifos that is 
still listed as permissible use, yet studies seem to indicate 
that it has the kind of adverse effect on humans that I 
mentioned with the study of farm worker and the women and 
children. So how do you balance what you just said with that?
    Dr. Bradbury. So we are in the process of reevaluating 
chlorpyrifos. Right now we have a scientific advisory panel 
meeting scheduled for June, in a couple of months to take a 
look at the science associated with chlorpyrifos. These studies 
that just came out our scientists are reviewing them and will 
at least be bringing forward some of the concepts in these 
epidemiology studies to the Science Advisory Panel.
    The challenge in looking at epidemiology studies, which 
creates statistical associations between exposure and effects 
and we are working toward how to understand that kind of 
information and link it with information----
    Mr. Grijalva. With the perpetual debate around linkage, 
right?
    Dr. Bradbury. How to integrate that information with animal 
toxicology studies, which gives a better hand of dose response.
    Mr. Grijalva. So I am assuming with that process there are 
also the revisions to the worker protection standards is 
something that will be ongoing since that has been quite a 
while since that has been looked at.
    Dr. Bradbury. One of my program's highest priorities is to 
move forward on the work of protection.
    Mr. Grijalva. I appreciate that. I agree that there is a 
balance issue at hand here, but there is also a health and 
safety issue at hand. And the Endangered Species Act has 
afforded, up to this point, and it is very gratifying to hear 
your comments, sir, the best opportunity for that human health 
and safety issue to be incorporated in those consultations. So 
thank you very much. And I yield back, Mr. Chairman.
    Mr. Lucas. The gentleman's time has expired. The Chair 
would note that we have at this point three remaining Members 
for questions, Mr. Flores followed by Mr. Thomas followed by 
Mr. Bishop. And with that, the Chair recognizes the gentleman 
from Texas for five minutes.
    Mr. Flores. Thank you, Chairman Lucas and thank you 
Chairman Hastings for hosting this hearing today.
    I wanted to remind everybody about the title for this 
hearing is At Risk American Jobs, Agriculture, Health and 
Species--the Cost of Federal Regulatory Dysfunction. And we 
have talked a lot today on your side of the room about science. 
What you are hearing from this side of the room predominately 
is about economics and jobs. And so I am going to reiterate 
several comments that we have said today about economic 
analysis not being included in these studies.
    As I am sure each of you are aware, the ESA has a charge 
that economic analysis will be included, particularly as it 
affects folks in agriculture when you look at regulations 
moving forward. And also we have a new executive order, 13563, 
that requires that we look at the impact of new regulations 
while promoting economic growth, innovation, competitiveness, 
and job creation.
    So my question, and I would like about a 15-second answer 
from each of you, when are we going to get back to looking at 
economic analysis as with respect to agriculture and the ESA 
and also Executive Order 13563 as we go through this process? 
So I would start with Dr. Glauber.
    Dr. Glauber. The gentleman on my left will be able to 
respond a bit more to this. But my understanding of the ESA for 
a critical habitat designation, for example, there is cost-
benefit analysis put in there.
    As I mentioned, we have talked about many times during the 
consultation process development of prudent and reasonable 
alternatives. I think there is a very important place for 
economics as well.
    Dr. Bradbury. In the aspect of moving into an endangered 
species consultation when has to happen from EPA's perspective, 
the first step is making that registration decision. And 
through that process, the first step is getting the science 
right and ensuring that we have the best available science, 
using public participation to refine that science.
    If we need to make risk mitigation measures to again get 
public input to try to optimize any mitigation that needs to 
happen, that includes an economic analysis to try to minimize 
the economic burden in the context of the risks that we have to 
protect against.
    If we have to go into consultation, then there could be 
another iteration of that, and that is the edge of where we are 
now in trying to make that linkage.
    Mr. Flores. Dr. Gould?
    Dr. Gould. As was indicated by Dr. Glauber, the critical 
habitat stage of the Endangered Species Act does require us to 
do economic analysis. But in terms of the relations between 
FIFRA and the consultations on FIFRA, I agree that we should be 
considering the economic impacts along with the action agencies 
at the RPA stage.
    Mr. Schwaab. I would just make the same observations, sir.
    Mr. Flores. OK. I have one more question since I have some 
time. This has to do with a constituent in my district. This is 
for Director Gould. There is an electric transmission 
distribution provider in Texas, which began an application with 
Fish and Wildlife Service for a 30-year Endangered Species Act 
Sec. 10(a)(1)(B) permit in 2008.
    And it was my understanding that this constituent worked 
diligently with FWS to meet all Federal requirements and 
establish goal of completing the process by June of this year. 
However, due to delays in his permitting process they are 
concerned that this goal is no longer within reach.
    I wanted to highlight this issue as well as a letter that I 
sent to you and Secretary Salazar on April 15. I would ask 
unanimous consent that this letter be inserted in the record. 
Dr. Gould will you be able to update me on this process in a 
timely manner
    Dr. Gould. Yes, sir. I will.
    Mr. Flores. Thank you. I yield back.
    Mr. Lucas. The gentleman yields back. The Chair now 
recognizes the gentleman from Pennsylvania for five minutes.
    Mr. Thompson. I thank the Chairman and Ranking Members. 
Thank the panel for your testimony.
    Dr. Glauber, in your written testimony you talked about the 
mitigation efforts consultation programs, obviously an area of 
particular interest. And I thought you coined it well, a great 
metric for measuring wise investments in terms of taxpayer 
resources and the outcomes we are looking for. You talked about 
payments tied to estimated benefits.
    I wanted to just to get your thoughts on how effective have 
we been at tying the payments of these programs to actual 
benefits. What kind of outcomes are you seeing?
    Dr. Glauber. That is a challenge. And I think I mentioned 
in the testimony just problems, for example, in Washington 
where you do the per-acre costs, the opportunity cost for a 
farmer for irrigated land is pretty high. And so trying to 
encourage that sort of land to come in is, of course, very 
expensive. And you are talking about a conservation program 
that may not have a lot of dollars. So that is the challenge is 
how to do that most effectively.
    But obviously, there are a lot of potential benefits in 
those programs. I think if they are well targeted and are 
trying to get certain environmental benefits I think there is 
some real potential there. The problem is there are not a lot 
of dollars.
    Mr. Thompson. I look forward to certainly continuing our 
communications in the future as we prepare for the next farm 
bill and critically evaluating what works and what does not 
work, and look forward to your experience.
    My district is very rural. It is home to significant forest 
lands and makes up nearly a quarter of Pennsylvania. And we 
have dealt with the gypsy moth for many years and are always 
watching the Emerald Ash Borer.
    Dr. Glauber, what in your view are some of the unintended 
consequences of the Endangered Species Act on managing invasive 
species, such as specifically the Emerald Ash Borer, which is 
presenting a tremendous threat to our forests in Pennsylvania?
    Dr. Glauber. Let me just say obviously this a big effort to 
try to control invasive species. And to the degree that that 
comes in conflict with the Endangered Species Act 
determinations, I think they are, as we are working out through 
these consultations, this is exactly where the rubber hits the 
road I think in developing prudent and reasonable alternatives.
    Mr. Thompson. Dr. Bradbury, you mentioned in your written 
testimony three lawsuits that EPA is currently dealing with 
that have ``the potential to have significant impact on 
pesticide registration actions generally.''
    In my opinion, certainly some individuals of environmental 
organizations are purposely using the legal system to try and 
expand upon the basic congressional intent and jurisdiction of 
the current law. I also think they are using it as a very 
successful fund-raising programing as well since the Federal 
Government reimburses most of those costs for them.
    In other words, they sue the EPA, the Forest Service, 
whatever agency to force a court decision and hopefully get a 
sympathetic judge to rule in their favor. My question really is 
to all the panelists. I assuming this is something you are 
seeing that is impacting all of your agencies, the filing of 
these lawsuits that basically is interfering with really 
legislatively congressionally directed public policy.
    Dr. Gould. From the Fish and Wildlife Service's 
perspective, these suits have been particularly problematic 
because sometimes they are on process. There are very specific 
time lines under the ESA for our listing process and other 
responsibilities. And we are seeing some of these petitions of 
well over 200--300 species coming in at a time. We literally 
are swamped.
    Dr. Bradbury. I believe my written testimony gave you an 
estimate of 2010 and the investment we had to make to deal with 
litigation.
    I think what we are all trying to say today is that, 
looking forward, if we can develop the scientific process, the 
public participation process, the focus tools to make well-
informed decisions and ensure there is good public 
participation, we get the efficiency. So, hopefully, we can get 
past where we are and get to a system that is more efficient 
and more effective and not have to use litigation to get there.
    Mr. Thompson. Let me in the time remaining, just for a one 
statement and see if you agree or don't agree. Frankly, if what 
you are doing, and I have heard many times best science 
mentioned. I don't know how many times, but a lot. If best 
science really is being used in administering the laws that are 
passed in Congress are these lawsuits a costly distraction to 
best public policy delivered with congressional legislative 
authority, would you agree with that?
    Mr. Schwaab. I would just say this perhaps also related to 
the last question. While the lawsuits might drive us into 
review of particular circumstances, it is ultimately still the 
use of best available science that dictates the ultimate 
decision of the agency in any particular circumstance.
    Dr. Gould. We have through our budget processes looked for 
budgetary protection from some of these suits in that we have 
so much money to complete our listing processes. So there are 
legislative ways to resolve these issues. But ultimately, what 
we need to do is administratively increase our efficiency and 
effectiveness through multi-species consultations and that sort 
of thing to make us more efficient. Hopefully, by taking those 
actions we can resolve some of our problems meeting the 
specific time lines that are outlined in the Act.
    Mr. Thompson. My time has expired. My frustration is that I 
think there are frequent times that these lawsuits actually try 
to redefine science and that is very frustrating.
    Mr. Chairman, I appreciate your tolerance and I yield back.
    Mr. Lucas. The gentleman yields back. The Chair now 
recognizes the gentlelady from California for a key role of 
potentially concluding this round of questions for this panel.
    Mrs. Napolitano. Since I was skipped, can I have double 
time? Thank you, Mr. Chair. And as the Ranking Member of the 
Water and Power Subcommittee, I do strongly support our 
government's role to protecting our waters from harmful 
pesticides.
    According to the USGS, a report in 2006 pesticides 
frequently are present in streams and groundwater and have been 
found in some streams at levels that exceed the human health 
benchmark. And they occur in many streams at levels that may 
affect aquatic life or fish eating wildlife. And EPA has 
reported that 16,000 miles of rivers and streams, 1,368 miles 
of bays and estuaries, 370,000 acres of lakes in the United 
States are currently impaired or threatened by pesticides. And 
EPA suggest that these estimates may be low because some of the 
states do not monitor all the different pesticides that are 
currently being used.
    Mr. Chairman, I ask unanimous consent to place into the 
record again two EPA reports that show the use of pesticides as 
the number one cause of impairments to water quality in my 
State of California. I would like to ask for an update from EPA 
because this is a 2006 report, but it is still a good report. 
This means that all the waters in California that are found 
through testing and monitoring to be impaired or polluted under 
the Clean Water Act pesticides are the most significant cause 
of these problems.
    And I am very concerned about the effects that these 
pesticides have on our health of our rivers and streams 
drinking water supplies and thereby the health of our citizens.
    It is worrisome. The House has already passed a bill to 
permanently exempt pesticide applications from the Clean Water 
Act without substantive review. I support the work of Vector 
control agencies to maintain the public health of our 
communities. I am worried that the House has overreached in 
deregulating other pesticide applicators that pollute our 
waters. We must not create an exemption from water quality 
protection requirements without considering the impacts to 
waters that are already impaired by pesticides as in my State 
of California.
    And I can speak from the Superfund listed--in California 
that one of the main components of the huge contaminate 
underwater body was pesticides and it was several other things 
that came to mind and my mind is frozen. Fertilizers, plus 
other cold war manufacturing leftovers they were leached into 
the aquifer. To me those are some of the things we need to be 
able to ensure that we don't have.
    And Mr. Cardoza asked Dr. Bradbury about the farmers use 
less of some of these pesticides. However, is there any data 
that will show that this continued use is maybe leaching into 
the aquifers, thereby creating problems that we will not see 
for decades to come?
    Dr. Bradbury. In our risk assessments that we perform to 
evaluate the registration of a new pesticide or to look at 
existing pesticides some of the data that we get in those 
hundred plus studies include leaching studies, so we are taking 
a look at the potential of a chemical to move through the soil 
and to get into aquifers.
    In fact, some of our preregistration decisions, our last 
cycle of reevaluating compounds are a number of decisions we 
made to stop the use of certain pesticides because of their 
ability to leach into shallow aquifers it could a source of 
water for private wells.
    Mrs. Napolitano. And the waters do move into the aquifers.
    Dr. Bradbury. And that is part of the scientific analysis 
that we undertake.
    Mrs. Napolitano. And Mr. Southerland, my colleague on the 
other side talked about the cost of farmers and they pay for 
this. I think the general fund everybody pays for it and we 
have not had any estimates or guesstimates for that matter on 
the cost to the human health to the cities and the states that 
have to provide for those citizens to be able to take care of 
carcinogens that being found in children and many adults, the 
untreated wastewater and other factors that we know about.
    One of the other questions, Dr. Bradbury, is California has 
a robust program that tracks pesticide usage throughout the 
state. In what ways is California's program distinct from 
others?
    Dr. Bradbury. I am sorry. I couldn't hear the very end of 
your question.
    Mrs. Napolitano. In what way is California's program 
distinct?
    Dr. Bradbury. The California program provides county level 
information in terms of pesticide use, which is very valuable 
and we use that data extensively.
    Mrs. Napolitano. Do other states use it?
    Dr. Bradbury. I don't want to speak for other states to the 
extent that they use that information because there is some 
extrapolation that needs to happen from unique settings of 
California and how relevant that information may be for a 
specific state.
    Mrs. Napolitano. And Mr. Schwaab, if EPA and the states 
provide more robust data on actual pesticide usage to the 
Service, would the Service be able to develop more refine 
measures to protect the endangered species in the future?
    Mr. Schwaab. Yes. That is an area that we are looking at 
right now.
    Mrs. Napolitano. Would be able have information provided to 
this Committee so that we understand what your findings are?
    Mr. Schwaab. Yes. We are happy to provide some follow up 
information regarding the nature and the extent of those 
discussions to date.
    Mrs. Napolitano. Thank you. And Mr. Chair, I would love to 
continue, but I would like to ensure that give these handouts 
that I mentioned for the record. These are very valuable. Thank 
you, Mr. Chair.
    Mr. Lucas. No objection. The gentlelady's time has expired. 
All time has expired for this panel. The Chair yields back to 
Chairman Hastings.
    The Chairman. Thank you very much, Mr. Chairman, for 
conducting this hearing with this panel.
    I want to thank the panel for their very valuable 
testimony. And I want to thank the Members for their questions. 
Many times there are some follow up with questions to the 
panel, so if you would respond in a very quick time frame I 
would appreciate it very much if Members have additional 
questions.
    And I would also like to encourage this panel, although we 
can't compel you to, to stick around for the second panel. As 
you know, you are a panel made up of people that implement the 
law. Now the second panel who is designed for people that are 
affected by the law. And I hope it would be very, hopefully, 
instructive to you if you could hang around and hear what they 
have to say. There might be some synergism that we would want 
to follow up because we want to get the maximum amount of 
benefit we can out of this hearing.
    So once again, I want to thank you. Under Committee Rule 
4(h), the record will be open for ten business days for 
whatever responses need to be. And with that, I will dismiss 
this panel and I want to take about a four-minute recess and 
call the second panel. The gentleman from the Northern 
Marianas.
    Mr. Sablan. I just ask for unanimous consent request to 
submit a letter into the record from 65 nonprofit environmental 
groups who support the science-based solution.
    The Chairman. Without objection, so ordered.
    Mr. Sablan. Thank you very much, Mr. Chairman.
    The Chairman. Thank you.
    [Whereupon, a four-minute recess was taken.]
    The Chairman. The Committee will reconvene, and I want to 
warmly welcome our second panel of witnesses. We have with us 
Ms. Beehler, who is a district manager of the Benton County 
Mosquito Control District in my home state of Washington. As a 
matter of fact, in my district. Mr. Barry Bushue, the President 
of the Oregon Farm Bureau on behalf of the American Farm 
Bureau; Dr. Debra Edwards, Senior Managing Science, the 
Exponent Engineer and Scientific Consulting firm; Mr. West 
Mathison, President, Stemilt Growers, in Wenatchee, again in my 
district; Dan Newhouse, who is the Director of the Washington 
State Department of Agriculture, a sometime member of my 
district when he is not working in Olympia. And Mr. Zeke 
Grader, Executive Director of Pacific Coast Federation of 
Fishermen's Associations.
    We will go right to the panel and Ms. Beehler, you are 
recognized for five minutes. I would remind the panelists once 
again that the little device in front of you is a five-minute 
clock. Your full statement will appear in front of the record. 
As long as the green light is on, you have four minutes. When 
the yellow light goes on, it means you have 30 seconds. And I 
would ask you to try to wrap up your comments. And when the red 
light goes on, that means the five minutes have expired. But 
your full statement will appear in the record.
    So Ms. Beehler, you are recognized for five minutes.

 STATEMENT OF ANGELA BEEHLER, DISTRICT MANAGER, BENTON COUNTY 
                 MOSQUITO CONTROL, DISTRICT #1

    Ms. Beehler. Good afternoon, Mr. Chairman, members of the 
Committee.
    My name is Angela Beehler, and I am the Vice President of 
the Northwest Mosquito and Vector Control Association. I also 
manage the Mosquito Control District in Benton County, 
Washington.
    I am pleased to testify on the profound effects that 
regulatory dysfunction can exert on public health for I take my 
mandate to protect the health of my community seriously. For 
the purpose of this hearing, I will focus on the salmon and 
steelhead Endangered Species Act consultations between the EPA 
and National Marine Fisheries Service.
    Over 1 million people die worldwide each year from 
mosquito-transmitted diseases. While fatalities in the United 
States are relatively rare due to a long history of successful 
mosquito control programs, the cost associated with the 
treatment of mosquito-borne sickness runs into the millions of 
dollars each year. The human costs are far greater.
    Alarmingly, the future of public health mosquito control is 
in jeopardy due to the increasing cost needed to register our 
pesticides, burdensome regulations of Clean Water Act permits, 
if enacted, and some ill-advised Endangered Species Act 
protections. These cost divert scarce resources away from our 
primary mission of protecting public health and compromise both 
the quality and extent of the protections we can offer the 
public.
    All pesticides sold in the United States must be registered 
by the EPA in accordance with the Federal Insecticide, 
Fungicide, and Rodenticide Act. As a condition of registration, 
the applicant must demonstrate that the use of pesticide in 
accordance with its label will not present any unreasonable 
risks to man or the environment, taking into account both the 
costs and the benefits of the use of that pesticide. Thus, 
protection for listed wildlife is already built into the 
statute and practiced by mosquito control personnel.
    I am aware that provisions of the Endangered Species Act 
did not mandate that NMFS consider the public health benefits 
when evaluating the effects of Naled, a mosquito adulticide on 
Northwest salmon and steelhead.
    A recent biological opinion rendered by NMFS ultimately 
determined that the use of Naled could jeopardize salmon and 
they recommended that label changes be made. However, it was 
evident that proper care was not taken to obtain actual usage 
data from public health pesticide applicators. As a result, the 
biological opinion grossly over estimated the amount of 
Malathion used for mosquito control in the Northwest, while 
under estimating the public health importance of this product. 
Unfortunately, the faulty assumptions made during the 
consultation could eliminate adult mosquito control over much 
of Washington, Oregon, and California.
    When field surveys indicate that mosquito numbers are above 
the treatment threshold or when mosquitos in my district are 
found to be carrying disease, I initiate wide area spraying to 
reduce the numbers below a transmission threshold. It is 
important to note that these applications are not made directly 
to water, but to the air column above and the adjacent 
vegetation.
    These vegetated areas serve as a preferred resting place 
for adult mosquitos. Failure to control the mosquitos in these 
areas will result in an increased risk of mosquito-borne 
disease as they migrate outward to find hosts.
    I am entirely sympathetic with NMFS' fear that, without a 
buffer surrounding water bodies, pesticides could enter the 
water and kill sources of food for salmon and steelhead. 
However, aerial sprays applied perpendicular to the prevailing 
wind direction actually move pesticide away from the water 
body, significantly reducing the risk to aquatic and vertebras.
    Over the past two years, West Nile virus infested mosquitos 
were found in large numbers in Washington State. As much as 61 
percent of the State of Washington is critical habitat for 
salmon and steelhead populations. I have no doubt that spray 
buffers in forests at the time of these outbreaks would have 
cost human lives. Moreover, the quality of life for the victims 
that suffer long-term symptoms and their caretakers would be 
severely compromised.
    The Endangered Species Act must be modified to make 
considerations for public health uses. I do not believe it was 
the intent of the EPA or the Services to put people at risk, 
but this is the consequence of the statute in its present form. 
The case involving Northwest salmon sets a precedent for 
hundreds of pesticide active ingredients in endangered species 
and should proceed with the utmost caution. Lives and 
livelihoods are at stake.
    Furthermore, the consultation must be more clearly defined 
to reduce inconsistencies in the biological opinions. Ample 
time for public comment, peer reviewed scientific input, and 
stakeholder participation is essential if the Endangered 
Species Act is to full provide the benefit for which it was 
intended. Thank you.
    [The prepared statement of Ms. Beehler follows:]

 Statement of Angela Beehler, District Manager, Benton County Mosquito 
    Control District #1, West Richland, Washington; Vice President, 
   Northwest Mosquito and Vector Control Association, and Co-Chair, 
    Endangered Species Act Subcommittee, American Mosquito Control 
                              Association

    This testimony serves as an addition to original testimony 
submitted before the House Committees on Natural Resources and 
Agriculture on May 3, 2011 and is offered for inclusion into the 
Congressional Record.
The Effect of Regulatory Dysfunction on Public Health
    The future of public health mosquito control is in jeopardy due to 
increasing costs needed to register our pesticides, burdensome 
requirements of Clean Water Act permits if enacted, and some ill-
advised Endangered Species Act (ESA) protections. These costs divert 
scarce resources away from our primary mission of protecting public 
health and compromise both the quality and extent of protection we 
offer the public.
    The ESA is intended to protect species that are threatened with 
extinction and maintain their critical habitat. The current manner in 
which the ESA is being implemented can impede mosquito control programs 
in achieving their goals, namely protecting the public's health and 
welfare from nuisance causing and disease carrying mosquitoes. In 
addition, endangered species such as Whooping Cranes and Sandhill 
Cranes are affected by mosquito-borne disease. Any compromise to 
mosquito control activities is bound to affect them as well.
    EPA provides its analysis on potential environmental effects from a 
pesticide, including those on endangered or threatened species, to the 
Fish and Wildlife Service and National Marine Fisheries Service (NMFS) 
which are charged with administering the ESA. The Services develop and 
issue Biological Opinions (BiOps) reflecting their conclusions of 
potential impacts in addition to providing recommendations for 
mitigation.
    The provisions of the Endangered Species Act do not mandate that 
NMFS assess the human health benefits when evaluating effects of 
pesticides on salmon and steelhead. The third BiOp rendered by NMFS 
ultimately determined that naled, a mosquito control adulticide, could 
jeopardize salmonids and recommended label changes be made. However, it 
was evident that proper care had not been taken to obtain actual usage 
information from the public health pesticide applicators. As a result, 
the BiOp grossly overestimated the amount of naled used by mosquito 
control in the Northwest, while underestimating the public health 
importance of this product. The assumptions made during the 
consultation could eliminate adult mosquito control over much of 
Washington, Oregon, and California.
    This analysis forms the basis of Service-recommended Reasonable 
Prudent Alternatives and Reasonable Prudent Measures sent to the EPA 
for implementation. Even though the basis for the proposed mitigation 
measures may not be well founded, EPA is nonetheless left with 
implementing them. This can include significant label restrictions that 
preclude use of pesticide products to protect public health and 
welfare.
    Resource shortfalls in staffing and funds make it extremely 
difficult for the Services to render timely BiOps. Even when BiOps are 
completed and opened for public comment, stakeholders are not provided 
adequate time to review the documents and provide meaningful feedback.
    The determination of the potential impacts of public health 
pesticides on endangered and threatened species should be heavily 
dependent on the expert review performed by the EPA Office of Pesticide 
Programs as part of the registration review processes. The analysis and 
conclusions of the EPA in this regard should be strongly considered by 
the Services in the development of the BiOps. That analysis and 
conclusions should only be set aside where the Services have validated 
information which demonstrates that the EPA's analysis is faulty.
    The Endangered Species Act must be modified to make considerations 
for public health uses. I do not believe it is the intent of the EPA or 
the Services to put people at risk, but that is the consequence of the 
statute in its present form. The case involving NW salmon sets a 
precedent for hundreds of pesticide active ingredients and endangered 
species and should proceed with the utmost caution. Furthermore, the 
consultation process must be clearly defined to reduce inconsistencies 
in the Biological Opinions. Ample time for public comment, peer-
reviewed scientific input, and stakeholder participation is essential 
if the Endangered Species Act is to fully provide the benefits for 
which it was intended.
NMFS Overestimated Salmon Exposure to Mosquito Control Pesticides in 
        Models
    The EPA registration process fully addresses water quality impacts 
of adult mosquito control products. Ultra Low Volume (ULV) applications 
to control public health vectors at sites under conditions specifically 
prescribed by the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA) label should not be subject to further requirements under ESA. 
The droplet size, application timing and meteorological parameters for 
ULV operations are specified on the insecticide label per FIFRA. The 
minute size of the droplets minimizes deposition on non-targets, while 
facilitating both impingement on mosquitoes in flight and rapid 
breakdown to inert substances. Per label specification, ULV operations 
are subject to clearly defined meteorological parameters, i.e. wind 
speed (<10 MPH), high relative humidity, and temperature inversion. 
These help maintain the insecticide in the air column through the 
target area, while minimizing drift and deposition in non-target areas 
(Tucker et al. 1987, Tietz et al. 1994, Tietz et al. 1996).
    In the third BiOp, The Endangered Species Act section 7 
consultation: biological opinion on Environmental Protection Agency 
registration of pesticides containing Azinphos methyl, Bensulide, 
Dimethoate, Disulfoton, Ethoprop, Fenamiphos, Naled, Methamidophos, 
Methidathion, Methyl parathion, Phorate and Phosmet, NMFS states that 
``although labels specify not to apply naled directly to surface water, 
they do allow for drift applications to be made over a variety of 
salmonid habitats such as streams, rivers, lakes and tidal marshes.'' 
This statement is not accurate.
    The mosquito control label for Dibrom Concentrate (naled) reads, 
``Do not apply over bodies of water (e.g., lakes, swamps, rivers, 
permanent streams, natural ponds, commercial fish ponds, marshes or 
estuaries), except when necessary to target areas where adult 
mosquitoes are present, and weather conditions will facilitate movement 
of applied material away from the water in order to minimize incidental 
deposition into the water body.(EPA Reg. No. 5481-480).''
    The BiOp accurately describes mosquito control applications in the 
statement ``These applications typically occur at higher elevations 
(e.g. 200 feet) and smaller drop spectrums than those common to 
agricultural applications.'' However they based their conclusions for 
salmon survival on concentrations from a model that releases chemical 
at 50 ft; ``The simulations suggest mosquito application may result in 
aquatic concentrations that exceed 7 mg/L for the lower labeled rate, 
and 90 mg/L for the maximum labeled rate. NMFS. (2009).''
        ``We also expect concentrations of naled and phosmet to kill 
        juvenile and adult salmon in floodplain habitats and small 
        streams, based on NMFS modeling. We therefore evaluate the 
        effects to populations from exposure to naled based on reduced 
        survival.'' NMFS. (2009). An application at 200 ft based on 
        their model would result in a concentration of 3 mg/L, which is 
        well below the toxic dose for salmon and steelhead.
    A study was conducted to determine if mosquito adulticides applied 
along the Florida Keys cause adverse ecological effects in the Florida 
Keys National Marine Sanctuary (FKNMS). The study monitored the 
distribution and persistence of two mosquito adulticides, permethrin 
and dibrom (naled), during three separate routine applications by the 
Florida Keys Mosquito Control District. The approach was to determine 
if toxic concentrations of the pesticides entered the FKNMS by aerial 
drift or tidal transport. Naled was detected in one water column sample 
on the Atlantic side (0.19 mg/L), but its breakdown product dichlorvos 
was detected in ``50% of the water samples'' (range 0.08 -0.56 mg/L). 
At the 10-11 h post application sampling, dichlorvos was detected at 3 
of the 9 sampling sites (range 0.05--0.33 mg/L.) Following the second 
application, naled was not detected in water column samples. Dichlorvos 
was detected at 2 sites (range 0.7 -0.09 mg/L), but in lower 
concentrations than following the first application. (Pierce et al 
2005).
    In a report compiled by the MOTE Marine Laboratory for Collier 
Mosquito Control District in Naples, Florida assessed the amount of 
Dibrom (naled) residues in fresh and salt water environments during 
normal mosquito control adulticiding conditions. This report was not 
available to NMFS during consultations, but demonstrates the difference 
between NMFS model calculations and real-world data. The highest 
concentration of naled detected during that study was .66 mg/L. (NMFS 
model predicted 7-90 mg/L) MOTE. (2010)
    Water quality monitoring was conducted in Washington and California 
and no detections of naled were found in either study.
    We evaluated monitoring data available from the California 
Department of Pesticide Regulation, which maintains a public database 
of pesticide monitoring data for surface waters in California. naled 
was not detected in any of the samples. Dichlorvos was detected in 0.2% 
of samples with a maximum concentration of 0.542 mg/L. NMFS. (2009).
    Data from monitoring studies conducted in the state of Washington 
are included in Department of Ecology's Environmental Information 
Management (EIM) database (http://www.ecy.wa.gov/eim/). Naled was not 
detected in any of the samples. The naled degradate dichlorvos was not 
detected in these studies either. NMFS. (2009).
    NMFS attributes the lack of detections a low number of samples. In 
actuality, naled breaks down quickly in the environment to undetectable 
levels--which makes it a desirable product for locations with listed 
threatened or endangered species. The absence of naled in monitoring 
data indicates that current label protections are sufficient to protect 
listed species.
No Field Incidents Reported in EPA Incident Database
    NMFS reviewed reported incidents of fish deaths from field 
observations throughout the U.S. because this information reflects real 
world scenarios of pesticide applications and corresponding death of 
freshwater fish. Large numbers of incidents in the database were 
attributed to azinphos methyl, while any incidents associated with 
naled were considered unrelated or an unlikely cause of the event. 
NMFS. (2009).
NMFS Assumption of Pesticide Use Rates in the Northwest
    NMFS did not obtain actual use data from pesticide applicators or 
the pesticide registrants. Instead, they relied on the maximum use 
allowed by the pesticide label. ``Use estimates for states in the 
Pacific Northwest suggest much greater application of naled is 
possible, although actual use in Idaho, Oregon, and Washington is 
unknown.'' NMFS. (2009). ``Recent usage data for naled in the Pacific 
Northwest are not readily available and are therefore unreported. 
NMFS.'' (2009).
    In the summary of all authorized use sites and application 
restrictions for active naled products registered in California, Idaho, 
Oregon, and Washington, NMFS stated that applicators could apply 10.73 
lbs of naled/acre/year. In 2009, Benton County Mosquito Control 
District used naled applications to control West Nile virus and the 
combined applications amounted to .27 lb/acre. Most mosquito control 
districts in the Northwest do no aerial adulticiding, and the programs 
that do typically budget for 1-3 applications per year. In order to 
apply the 10.73 lbs of naled/acre/year as mentioned in the BiOp, 
mosquito control districts would have to make 104 applications per 
year.
EPA Evaluates Risks to Endangered Species during Registration
    Endangered species Levels of Concern (LOC) for naled are exceeded 
for birds as follows: acute risks to herbivorous birds from all uses 
except for mosquito control; acute risks to insectivorous birds from 
the applications on almonds, cole crops and citrus; chronic risks to 
herbivorous birds from the uses on almonds, cole crops, citrus and seed 
alfalfa; and chronic risks to insectivorous birds from the use on 
almonds. Endangered species LOCs for mammals are exceeded as follows: 
acute risks to herbivorous and insectivorous mammals from all uses, 
including mosquito control. In addition, seed-eating mammals are at 
risk from the almond use. Chronic risks are also a concern for 
herbivorous and insectivorous mammals from all uses except for mosquito 
control. The chronic risk exceedance for birds and mammals are based on 
maximum residues following one application and do not include 
degradation or dissipation of naled in the environment. In addition, 
endangered terrestrial invertebrates are expected to be at risk from 
all uses of naled.
    There are also risk concerns for endangered aquatic species. 
Endangered species acute and chronic LOCs are exceeded for freshwater 
invertebrates from all uses. Naled's use for mosquito control is only 
an acute risk to freshwater invertebrates. The acute LOC for endangered 
freshwater fish is only exceeded for the uses on cole crops, citrus, 
and almonds and to control hornflies. The acute LOC for endangered 
estuarine invertebrates is only exceeded for the use on cotton; 
however, there are currently no federally listed endangered/threatened 
species for this group of animals. EPA. (2004).
EPA Benefit Assessment for Naled
    Naled has been described by the CDC (Center for Disease Control) as 
one of the principal pesticides used for adult mosquito control in the 
U.S. The Environmental Protection Agency has concluded that the current 
uses of naled in controlling mosquitoes have a significant health 
benefit. EPA. (2006). It is effective against almost all species of 
Aedes, Anopheles, Coquillettidia, Culex, Culiseta, Mansonia, and 
Psorophora, which comprise the major nuisance and vector mosquito 
species in the U.S. and elsewhere in the world. In the U.S., naled is 
an essential pesticide for suppression of the mosquito born 
encephalitis viruses. It is also used in the U.S. and internationally 
for mosquito control in emergencies following hurricanes and floods, 
and in refugee camps for control of mosquito vectors of malaria and 
dengue and nuisance mosquitoes and flies.
West Nile Virus
    Over the past two years, West Nile virus infected mosquitoes were 
found in large numbers in Washington State. Through the use of area-
wide mosquito control we were able to prevent the virus from spreading 
from agricultural areas into residential neighborhoods. Inasmuch as 61% 
of the state of Washington is critical habitat for salmon and steelhead 
populations, I've no doubt that spray buffers enforced at the time of 
these outbreaks would have cost human lives. Moreover, the quality of 
life for victims suffering long-term symptoms and their caretakers 
would be severely compromised.
    Paradoxically, mosquito control activities have demonstrated 
considerable promise in protecting populations of endangered species 
otherwise at risk from mosquito-borne disease. For example, West Nile 
virus is known to be lethal to certain birds, most notably the yellow-
billed magpie found only in the central valley of California. Other 
endangered avians such as Sandhill Cranes and Whooping Cranes have been 
killed by outbreaks of other mosquito-borne encephalitides. Effective 
mosquito control measures may in fact lessen the incidence of these 
diseases help these threatened species maintain viable populations.
    The mosquito control community supports a robust Endangered Species 
Act that will provide optimal protection to all species, both human and 
non-human. This requires that provisions of the statute be more solidly 
based on peer-reviewed science than at present. To this end, we ask 
that the provisions of the ESA be revised to accurately reflect the 
observed costs/benefits of lawful mosquito control operations. Only 
thus can we assure the public that both the critical needs of their 
families and the environment are being met.
REFERENCES:
Aerial and Tidal Transport of Mosquito Control Pesticides into the 
        Florida Keys National Marine Sanctuary; R.H. Pierce, M.S. 
        Henry, T.C. Blum, E.M. Mueller; Rev. Biol. Trop. (Int. J. Trop. 
        Biol. ISSN-0034-7744) Vol. 53 (Suppl. 1): 117-125, May 2005
CDC. ``2010 West Nile Virus Human Infections in the United States.'' 
        Www.cdc.gov. 28 Dec. 2010. Web. 20 Apr. 2011.
EPA. (2004). Naled analysis of risks to endangered and threatened 
        salmon and steelhead. Washington D.C.: EPA, Office of Pesticide 
        Programs.
EPA. (2006). Registration Eligibility Decision (RED) for naled. 
        Washington D.C.: EPA, Office of Pesticide Programs.
Henry, Michael. Dibrom Residues in Fresh and Salt Water Environments. 
        Tech. no. 1495. Sarasota: MOTE Marine Laboratory, 2010. Print.
NMFS. (2009). Endangered Species Act section 7 consultation: biological 
        opinion on Environmental Protection Agency registration of 
        pesticides containing Azinphos methyl, Bensulide, Dimethoate, 
        Disulfoton, Ethoprop, Fenamiphos, Naled, Methamidophos, 
        Methidathion, Methyl parathion, Phorate and Phosmet. 
        (Biological Opinon). Silver Spring, Maryland: U.S. Department 
        of Commerce.
Tietze, N. S., P. G. Hester and K. R. Shaffer. 1994. Mass recovery of 
        malathion in simulated open field mosquito adulticide tests. 
        Arch. Environ. Contam. Toxicol. 26:473-477.
Tietze, N. S., P. G. Hester, K. R. Shaffer and F. T. Wakefield. 1996. 
        Peridomestic deposition of ultra-low volume malathion applied 
        as a mosquito adulticide. Bull. Environ. Contam. Toxicol. 
        56:210-218.
Tucker, J. W., Jr., C. Q. Thompson, T. C. Wang and R. A. Lenham. 1987. 
        Toxicity of organophosphorus insecticides to estuarine copepods 
        and young fish after field applications. J. Fla. Anti-Mosq. 
        Control Assoc. 58:1-6.
                                 ______
                                 

 Response to questions submitted for the record by Ms. Angela Beehler, 
       District Manager, Benton County Mosquito Control District

QUESTIONS FROM RANKING MEMBER EDWARD J. MARKEY:
1.  In your testimony, you state that the ``determination of the 
        potential impacts of public health pesticides on endangered and 
        threatened species should be heavily dependent on the expert 
        review performed by the EPA Office of Pesticide Programs.'' The 
        National Marine Fisheries Service does not engage in 
        consultations for pesticides unless the EPA first independently 
        determines that the registration of a pesticide may affect an 
        endangered species. If EPA concludes that a pesticide will have 
        no effect on an endangered species, consultations do not even 
        occur. Do you believe that the EPA's conclusion that the 
        pesticide Naled may affect 10 evolutionarily significant units 
        of endangered salmon was erroneous? If so, why?
    Ranking Member Markey, I do not believe that the EPA's conclusion 
that the pesticide Naled may affect 10 evolutionary significant units 
(``ESU'') of endangered salmonids was erroneous. ``May affect'' 
determinations were based on the amount of Naled used in agriculture in 
proximity to each ESU. The EPA's own Office of Pesticide Programs 
specifically addressed public health pesticides on Page 21 of the 
``Naled Analysis of Risks to Endangered and Threatened Pacific Salmon 
and Steelhead'' and concluded:
        Based on the information from the registrant and a local user, 
        it is our professional judgment that naled is not an important 
        agent in controlling adult mosquitoes in the PNW. It does not 
        seem likely that naled will reach salmon-bearing waters in 
        sufficient quantity to be of concern from this use. As verified 
        by the registrant, mosquitoes do not occur in flowing waters, 
        although they may occur in stagnant areas of streams and 
        rivers. In lakes the mosquitoes tend to be along the edges. If 
        any spray of naled should enter flowing waters, its rapid 
        breakdown and the quick transport in the water flow would 
        reduce any potential residues to levels that are not 
        significant. The lake habitats of the two sockeye ESUs are on 
        federal lands, and we presume they would not be sprayed with 
        this chemical. Based on this information we conclude that the 
        mosquito adulticide use of naled is not likely to adversely 
        affect any salmon or steelhead ESU through direct or indirect 
        effects.
    NMFS should have taken this into consideration and exempted public 
health uses of Naled from the Biological Opinion.
2.  In your testimony, you state ``it was evident that proper care had 
        not been taken to obtain actual usage information from the 
        public health pesticide applicators.'' Please provide to the 
        committee all data that NMFS did not consider during the period 
        between the completion of EPA's Biological Evaluation of Naled 
        and the NMFS's completion of its Biological Opinion for Naled 
        (BiOp 3).
    The consultation process for pesticide registration includes only 
the registrants and the agencies. NMFS did not consult with the 
registrant of Naled for mosquito control, AMVAC, until after the draft 
Biological Opinion was complete. The consultation history states ``On 
July 19, 2010, another registrant, AMVAC, whom EPA had not previously 
identified as an applicant, requested a meeting with NMFS and EPA 
regarding naled and phorate. The meeting was scheduled for July 27, 
2010.''
    Jeopardy determinations for Naled on 11 ESU's were made in part 
because the amount of product used in Idaho, Oregon, and Washington for 
mosquito control was unknown and likely assumed rates consistent with 
agricultural uses, and not public health uses. NMFS was concerned about 
indirect and direct effects on salmonids because mosquito control 
labels allow for use over water when necessary to target areas where 
mosquitoes are present.
    This paragraph is taken from page 648, Paragraph 3 of the 
Biological Opinion for Naled: Naled is unique in this group of a.i.s, 
because in addition to agricultural uses, it is also registered as a 
vector control. Based on overlap of EECs and assessment endpoints, we 
expect naled to cause direct sublethal and lethal effects to salmonids 
and to decrease salmon prey populations. Population models showed a 
significant decline in lambda due to both lethality and effects on 
growth. Agricultural uses appear likely to cause higher water 
concentrations than noncrop uses based on model estimates. However, 
some naled labels allow for mosquito adulticide applications at rates 
comparable to crop uses (e.g. 1.25 lbs a.i./A). Additionally, naled may 
be applied over vast areas of freshwater habitats occupied by listed 
salmonids and the frequency of reapplication for the vector control 
measures are an important concern as reapplications may prevent 
recovery of salmonid prey for extended durations. Overall, we believe 
naled poses a high risk to all ESUs/DPSs. (NMFS 2010)
    First, application rates for mosquito control never exceed 0.1 lbs 
a.i./A. Second, actual public health pesticide use was never verified 
by NMFS in order to determine frequency of reapplication. The frequency 
of use in California was readily available through the California 
Pesticide Use Information Portal (CalPIP). Use in Idaho, Washington and 
Oregon was listed as unknown. Rather than research the actual use by 
public health applicators in Idaho, Oregon, and Washington, NMFS 
assumed that the maximum allowed applications would be made (2 per 
week) at the maximum application rate (.1 lbs/acre). In reality, 
mosquito control programs in these states conduct 1-3 applications per 
year at \1/2\ to \3/4\ of the allowable label rate of 0.01 pounds of 
a.i. per air column acre per application. The annual application rate 
assumed in the BiOp was 10.73 lbs/acre. A realistic assumption based on 
usage data would be .05-.25 lbs/acre. Actual Naled use data for the 
Pacific NW is shown in Table 1 and the corresponding map. This 
information was collected using CalPIP and by contacting mosquito 
control applicators.
    Although this pesticide is used in greater quantities in 
California, only ESU's in Idaho, Oregon and Washington were listed as 
``in jeopardy.'' Table 2 clarifies which salmon populations EPA 
determined may be affected by Naled and those that NMFS found to be in 
jeopardy from use in the Pacific Northwest.
    EPA's summary of Naled usage can be found on page 14 of the 2004 
Risk Analysis: The IRED provided national usage data for 1987 to 1997 
indicating that approximately one million pounds of naled are used 
annually, with 70 percent for mosquito/black fly control, 28 percent 
for agricultural uses, and 2 percent for pet collars. The use 
information was updated in July 2003, after the issuance of the IRED, 
by OPP's Biological and Economics Analysis Division (BEAD). The updated 
information covers national usage from 1992 through 2001. The total 
U.S. poundage is unchanged and the major use is still for mosquito 
control (71 percent of the total use). (EPA 2004)
    Had NMFS consulted AMVAC prior to issuing the BiOp, they would have 
established that less than ten percent of the mosquito control Naled is 
used west of the Rocky Mountains. The OPP consulted AMVAC during the 
Biological Evaluation and concluded that ``Based on the confidential 
marketing information they gave me, and looking at the application 
rates on the labels, we estimate that the naled products treat from 
5,000 acres to 60,000 acres in Washington, Oregon and Idaho combined.'' 
(EPA 2004) Due to the small amount of product applied, the EPA 
determined that public health uses of Naled are not likely to adversely 
affect salmonids.
    Since the 2004 Risk Assessment, Naled use in the Northwest 
increased. West Nile virus, a mosquito transmitted illness, was 
epidemic in Washington, Oregon and Idaho from 2006-2010. During that 
time, these three states used an average of 12,100 lbs Naled per year. 
If each mosquito control program used the minimum label rate, over 
240,000 acres could have been treated. While the usage increased 
substantially due to the threat of disease, these states still account 
for less than 2% of the EPA's estimated national use. Data provided by 
AMVAC in Table 3 provides the amount of product sold in CA, ID, OR, and 
WA for public health uses from 2007-2010. Table 3 also shows the amount 
of acreage that was likely covered by the product based on the low 
label rate (.05 lbs a.i./acre) and mid-label rate (.075 lbs. a.i./
acre).
    The question remains, ``How much Naled is used within salmonid 
habitat in the Pacific Northwest?'' Table 4 lists the species that NMFS 
identifies as in jeopardy from the use of Naled and the Counties where 
applications could coincide with those populations. This information 
can be used to determine how much product was used near salmon spawning 
or migration. For example, in 2009, 44,439 lbs of Naled were used for 
mosquito control in the Northwest. Four Counties (Benton, Morrow, 
Umatilla and Union) used Naled within the ESU's at a total of 14,087 
lbs. These applications are carefully engineered so as to treat the air 
column above the acre and not the acre itself. The treatment areas are 
largely terrestrial and not salmonid habitat.
    In conclusion, of the 11 populations of salmon and steelhead that 
NMFS determined to be in jeopardy from the use of Naled, only 4 occur 
within Counties that use Naled to protect public health. The mosquito 
control programs that conduct these applications use Naled as part of 
an Integrated Pest Management plan, and conduct less than 5 
applications of Naled per year. I strongly urge NMFS to revisit the 
Biological Opinion for Naled and take the data I have provided into 
consideration. Naled is an important and effective tool for controlling 
mosquitoes. When used according to the current label specifications it 
is not a threat to listed species.
Works Cited
EPA. (2002). Interim Reregistration Eligibility Decision for Naled. 
        Washington D.C.:EPA, Office of Pesticide Programs.
EPA. (2004). Naled analysis of risks to endangered and threatened 
        salmon and steelhead. Washington D.C.: EPA, Office of Pesticide 
        Programs.
Johnson, Orlay W., Thomas A. Flagg, Desmond J. Maynard, George B. 
        Milner, and F. William Waknitz. Status Review for Lower 
        Columbia River Coho Salmon. Tech. no. NMFS F/NWC-202. Seattle: 
        National Marine Fisheries Service, 1991. Print.
NMFS. (2009). Endangered Species Act section 7 consultation: biological 
        opinion on Environmental Protection Agency registration of 
        pesticides containing Azinphos methyl, Bensulide, Dimethoate, 
        Disulfoton, Ethoprop, Fenamiphos, Naled, Methamidophos, 
        Methidathion, Methyl parathion, Phorate and Phosmet. 
        (Biological Opinion). Silver Spring, Maryland: U.S. Department 
        of Commerce.
``Salmon Listings.'' National Marine Fisheries Service Northwest 
        Regional Office. National Marine Fisheries Service Northwest 
        Regional Office, 1 July 2010. Web. 26 May 2011. 
        .
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                                 .eps__
                                 
    The Chairman. That is absolutely incredible timing. Thank 
you very much for that.
    Mr. Bushue, you are recognized for five minutes.

 STATEMENT OF MR. BARRY BUSHUE, PRESIDENT, OREGON FARM BUREAU 
  TESTIFYING ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION

    Mr. Bushue. Chairman Lucas, Chairman Hastings and members 
of the Committee I want to thank you for holding this important 
hearing today.
    My name is Barry Bushue. I am here as a farmer and I am 
privileged to represent Oregon Farm Bureau as its President and 
the American Farm Bureau Federation as its Vice President.
    My farm is located approximately 20 miles due east of 
Portland, Oregon. My wife and I started a diverse horticultural 
operation where we raise ornamental nursery stock, bedding 
plants, flowering baskets, vegetables, berries, and pumpkins 
that are destined for both retail and wholesale markets.
    Our markets are far from certain and are impacted by 
competition and the overall state of the economy, but nothing 
is more costly or devastating than a crop loss. There are times 
when the only way we can save or protect a crop is by using 
crop-protection products. The availability of these products is 
important, not only to my farm but to agriculture in general. 
The farm community relies on the judicious use of these 
products based on labeled rates as determined by FIFRA.
    The Farm Bureau has concerns with the BiOps resulting from 
the consultation between EPA and NMFS. I attended a meeting in 
Portland, Oregon, hosted by NOAA to discuss the BiOps and the 
methods used to make its determinations. After hearing from 
scientists who developed the BiOps, in the ensuing discussion 
it became clear that our concerns about the hypothetical and 
inaccurate data used in the BiOps were justified.
    I was frankly stunned by the reluctance and even refusal to 
utilize the actual use data available from the Department of 
Agriculture and other sources in the development of these 
BiOps. Scenarios using maximum rates for the maximum number of 
applications for all crops listed on the label clearly do not 
reflect real world conditions or an accurate picture of use 
data for a study area.
    Assumptions were incorporated for crops not raised in the 
Northwest. Some assumptions were apparently made based on 
superceded labels that weren't even accurate at the time of the 
studies. Perhaps even more egregious was the use of a static 
pond model for drift and exposure data. A 6-inch deep static 
pond is a far cry from the moving streams that salmonid 
inhabit. These extremely conservative, worst-case scenario 
assumptions and flawed modeling do nothing to help agriculture 
or salmon.
    The results of the BiOps are buffers that far exceed those 
incorporated on the labels by EPA. The existing buffers on 
labels were developed by a competent and experienced team of 
EPA scientists. The buffers on the label for chlorpyrifos are 
25 feet for ground and 150 feet for aerial. In contrast, NMFS 
has indicated that the buffer for this insecticide should be 
500 feet for ground and 1000 feet for aerial.
    To put this into perspective, my home farm is approximately 
980 feet long. It borders an intermittent stream that is part 
of a basin system that supports salmonid. Five hundred feet is 
seven-and-a-half acres, or more than half of my retail 
production. If an aerial application is required, the BiOp 
would block the use of critical crop protections on my entire 
retail farm.
    Economics has to be part of any sustainable farm. To put 
any farm at risk due to the use of flawed and inaccurate data 
is unforgivable. And scenes like those occurring in Oregon and 
the Pacific Northwest have the potential to be played out 
throughout the United States. In fact, the Center for 
Biological Diversity has filed a lawsuit in the Federal 
District Court alleging that EPA violated ESA Section 7 by 
failing to consult with either the Fish and Wildlife Service 
and NOAA Fisheries on 381 products for their possible effects 
on 214 species listed under ESA that will impact every single 
state, except Alaska.
    The duplication of the risk assessment requirements for 
crop protection registration by EPA and for Section 7 
consultation by the Services is a prime example of the 
duplication and waste that exist in our Federal Government. 
Because both FIFRA and the ESA specifically require EPA and the 
Services, respectively to perform risk assessment procedures, 
we submit that legislation is needed to reconcile the roles of 
these respective agencies and to mesh two risk assessment 
requirements into one.
    A starting point for discussion might be counterpart 
regulations that were promulgated in 2004. The process is 
hopelessly broken. It cannot and has not worked in an effective 
way for anyone--growers, regulators, or endangered species. 
Congress must intervene. Implementation of the existing or any 
future BiOp should be stopped until another effective solution 
is found. No individuals are more important for the protection 
and preservation of salmon habitat than those of us who manage 
the land. By imposing blunt instrument restrictions that are so 
unrealistic and unnecessarily conservative you alienate the 
very people that are the most critical for salmon protection, 
generally.
    The Farm Bureau stands ready to assist you in finding a 
workable solution to this problem.
    [The prepared statement of Mr. Bushue follows:]

  Statement of Barry Bushue, President, Oregon Farm Bureau, and Vice 
 President, American Farm Bureau Federation, on behalf of the American 
                         Farm Bureau Federation

    Chairman Lucas, Chairman Hastings, Ranking Member Peterson and 
Ranking Member Markey, thank you for holding this important hearing 
today.
    My name is Barry Bushue. I am here as a farmer, and am privileged 
to represent Oregon Farm Bureau as President and American Farm Bureau 
as Vice President.
    My farm is located approximately 20 miles East of Portland, Oregon. 
I am the third in my family's history to own and operate the farm. My 
wife and I started a diverse horticultural operation where we raise 
ornamental nursery stock, bedding plants, flowering baskets, vegetable 
starts, strawberries, raspberries, tomatoes, various vegetables and 
pumpkins that are destined for both retail and wholesale markets. We 
farm less than 70 acres and our primary retail operation, including an 
on-farm market, is on the ``home farm'' that is comprised of fewer than 
14 acres. We are also involved in our local Farmers Market.
    Our retail operation has been successful because of our commitment 
to our local community and the environment, our attention to detail, 
and most importantly, a consistently high quality product.
    Quality does not come easily. Nutrients, water and other inputs 
must be monitored regularly. The environment in the greenhouses must be 
monitored and regulated. Managing for pests is constant and critical.
    We use a variety of pest management tools on our farm, including 
mechanical, biological and chemical methods, and our strategies for 
different commodities vary depending on their needs and market. Crop 
rotations, watering schedules, cover crops and cultivation methods are 
all important. In addition, recycling of water in our nursery container 
yard and grass strips for water control are all integral to our farm, 
and, as a member of the Local Advisory Committee, I participated in the 
development of the Agricultural Water Quality Management Plan for the 
Clackamas River Basin for the Oregon Department of Agriculture. My 
experience is typical of many farms in Oregon and the Northwest.
    We have a tremendous capital investment in plants, greenhouses, 
equipment, personnel, irrigation systems, land and buildings. We have 
clearly made a commitment to sustainability and to the future of our 
farm for generations to come. There is nothing more sustainable than a 
productive farm that supports generation after generation.
    Our markets are far from certain and are impacted by competition 
and the overall state of the economy, but nothing is more costly or 
devastating than a crop loss.
    There are times when the only way we can save or protect a crop is 
by using crop protection products. The availability of these products 
is important not only to my farm but to agriculture in general. The 
farm community relies on the judicious use of these products based on 
labeled rates as determined under the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA), which is administered by the Environmental 
Protection Agency (EPA). The label is the law.
    It is incumbent on the pesticide registrant to provide data 
sufficient for the EPA to make the scientific evaluation that the 
product may used for its intended purpose (according to the label) 
without presenting any unreasonable adverse effect on humans, the 
environment or non-target species, including species listed under the 
Endangered Species Act (ESA).
    Tremendous amounts of money and time have gone into the development 
of these products and the scientific data utilized to register these 
products. This includes not only toxicological studies on vertebrates 
and invertebrates but also environmental risk assessments.
    Farm Bureau has concerns with the Biological Opinions (BiOps) 
resulting from the consultation between EPA and the National Marine 
Fisheries Service (NMFS), which is part of the National Oceanic and 
Atmospheric Administration (NOAA Fisheries of the U.S. Department of 
Commerce). The BiOps were prepared as a result of litigation brought by 
activist groups against EPA, alleging that EPA's registrations of 
pesticides under FIFRA violated the ESA, because the pesticides had 
allegedly adversely affected 26 ``evolutionarily significant units'' of 
salmon in the Pacific Northwest, including in Oregon, where our farm is 
located. I attended a meeting in Portland, Oregon hosted by NOAA to 
discuss the BiOps and the methods used to make its determinations. 
There were representatives from Oregon, Washington, California and 
Idaho, including Departments of Agriculture, individual farmers and 
commodity groups.
    After a lengthy presentation from the NOAA scientists who developed 
the BiOps and the ensuing discussion with them and the larger group, it 
became clear that our concerns about the hypothetical and inaccurate 
data used in the BiOps were justified. I was stunned by the reluctance 
and even refusal to utilize the actual use data available from 
Departments of Agriculture and other sources in the development of the 
BiOps. Scenarios using maximum rates for the maximum number of 
applications for all crops listed on the label clearly do not reflect 
real-world conditions or an accurate picture of use data for a study 
area. Assumptions were incorporated for crops not raised in the 
Northwest. Some assumptions were made based on superseded labels that 
weren't even accurate at the time of the studies. Perhaps even more 
egregious was the use of a static pond model for drift and exposure 
data. A six-inch deep static pond is a far cry from the moving streams 
that salmonids inhabit. These extremely conservative worst-case 
scenario assumptions and flawed modeling do nothing to help agriculture 
or salmon.
    In a follow up meeting with James Lecky, Director, Office of 
Protected Resources in NOAA, my concerns were not abated by his 
assertion that NOAA needed to use the most conservative assumptions and 
modeling in order to forecast all possible use scenarios 15 years out. 
Forecasting based on flawed assumptions instead of actual use and real 
life data puts my farm, and our entire industry, at risk. They are 
certainly not compatible with farm sustainability.
    Additionally, the modeling did not appear to incorporate any 
appreciation or consideration for the huge investment from farmers, 
departments of agriculture, soil and water conservation districts and 
USDA, through NRCS and FAS, in on-the-ground conservation work and 
riparian area work already done to improve water quality and conditions 
on the land that impact it.
    The Oregon Department of Agriculture has active water quality 
programs to address pesticide issues, and, in conjunction with the 
Oregon Department of Environmental Quality, coordinates successful 
Pesticide Stewardship Partnerships with growers.
    The results of the BiOps are buffers that far exceed those 
incorporated on the labels by EPA. The existing buffers on labels were 
developed by a competent and experienced team of EPA scientists. The 
buffers on the label for Lorsban Advanced (chlorpyrifos) are 25 feet 
for a ground boom and 150 feet for aerial. In contrast NMFS has 
indicated that the buffer for this insecticide should be 500 feet for 
ground and 1000 feet for aerial. Similar scenarios run by the 
Pesticides Division of the Oregon Department of Agriculture show 
similar overzealous buffers for Diazinon at 575 feet and Malathion at 
175 feet, both for ground application. Aerial applications are at 1000 
feet.
    To put this into perspective, my home farm is approximately 980 ft 
long. It borders an intermittent stream that is part of a basin system 
that supports salmonids. Every 67 feet is the equivalent of an acre. An 
acre represents approximately five tons of strawberries, two tons of 
raspberries, up to 7,500 trees, tons of tomatoes, beans, pumpkins and 
untold other crops. 500 feet is 7.5 acres or more than half of my 
retail production. If an aerial application is required, the BiOp would 
block the use of critical crop protectants on my entire farm. Economics 
has to be part of any sustainable farm. To put any farm at risk due to 
the use of flawed and inaccurate data is unforgivable.
    No individual is more important to the protection and preservation 
of salmon habitat than the grower who manages the land. By imposing 
blunt-instrument restrictions that are so obviously flawed, unrealistic 
and unnecessarily conservative, you alienate the very people that are 
the most critical for salmon protection.
    The BiOps stemming from this one lawsuit will eventually deal with 
37 pesticides. To a minor crop producer in a state that raises more 
than 220 commodities, every tool is important. Rotation and resistance 
management are critical key to any successful operation.
    Scenes like those occurring in Oregon and the Pacific Northwest 
have the potential to be played out throughout the United States.
    The stark reality is that, although EPA has determined that each 
pesticide it registers will not cause unreasonable adverse effects on 
the environment, it has consulted with NMFS or the U.S. Fish and 
Wildlife Service (FWS) on only a very few crop protection registrations 
so far. EPA's alleged failure to comply with procedures under the ESA 
leaves the registrations exposed to legal challenge by groups bent on 
curtailing pesticide use.
    In fact, the Center for Biological Diversity (CBD) has filed 
several lawsuits seeking to halt pesticide use due to EPA's alleged 
failure to comply with the procedural requirements of the ESA when it 
registers pesticides. Most recently, CBD filed suit in the Federal 
District Court for the Northern District of California alleging that 
EPA violated ESA Sec. 7(a)(2) by failing to consult with either the FWS 
or NOAA Fisheries (collectively, the Services) on registrations of at 
least 381 pesticide products used throughout the country for their 
possible effects on 214 species listed under the ESA. Neither EPA nor 
the Services have the money or the staff to conduct consultations for 
every registered crop protection product.
    Many of the problems that have spawned this current regulatory 
quagmire stem from the fact that both FIFRA and the ESA require EPA and 
the Services, respectively but duplicatively, to conduct these reviews.
    FIFRA \1\ requires prospective pesticide registrants to provide 
voluminous data to the EPA before a product may be registered. Some of 
the data required by EPA are studies on the impacts of prospective 
products on species that are listed under the ESA \2\. EPA conducts 
risk assessments on the possible impacts of proposed products on plant 
and animal species, including listed species, as one factor in its 
consideration whether and under what conditions to register a pesticide 
product. Once a product is registered, FIFRA provides for re-
registration in order to assure the continued safety of the product.
---------------------------------------------------------------------------
    \1\ 7 U.S.C. 136 et seq.)
    \2\ 16 U.S.C. 1531 et seq.
---------------------------------------------------------------------------
    Similarly, the ESA also contains a process by which a federal 
agency (such as EPA) consults with FWS or NMFS to ensure that any 
action the agency authorizes, funds or carries out is not likely to 
adversely affect wildlife species protected by the ESA. In the course 
of this consultation process, FWS and NMFS are supposed to conduct 
evaluations of the proposed agency action, very similar to the risk 
assessments already undertaken by EPA in the registration or re-
registration of crop protection products.
    Under any circumstances, risk assessments are expensive, time-
consuming and data-intensive exercises. Current procedures are 
duplicative. They require that EPA and the Services both conduct 
essentially the same risk assessments for the same products on the same 
species. All three agencies conduct thorough and comprehensive 
assessments on listed species. All three agencies have the scientific 
expertise to perform their respective assessments. All three agencies 
have developed information and data that would be useful to the others, 
but which are not shared. EPA and the Services effectively duplicate 
each other's work. Having two or possibly three agencies repeating the 
same work is redundant, inefficient and a waste of taxpayer money. It 
also leads to the regulatory gridlock confronting farmers and ranchers 
as a result of the failure of these agencies to reconcile their 
procedures.
    President Obama's Executive Order 13563, ``Improving Regulation and 
Regulatory Review,'' requires federal agencies to identify outdated, 
overlapping and redundant regulations and regulatory processes as a 
means to streamline government and make it work more efficiently. In 
times of fiscal constraint and tighter agency budgets, eliminating 
agency duplication and waste is even more important.
    The duplication of the risk assessment requirements for crop 
protection registration by EPA and for section 7 consultation by the 
Services is a prime example of the duplication and waste that exists in 
our federal agencies. Both EPA and the Services have legitimate roles 
to play by virtue of the responsibilities that Congress has given them 
in the FIFRA registration process and in the ESA section 7 consultation 
process. Good government demands that EPA and the Services get together 
to determine how best to work with one another to satisfy the missions 
of both FIFRA and ESA through one, joint process.
    Let us be clear. We are not proposing to strip away any protections 
from either FIFRA or the ESA. We are simply proposing that two 
redundant procedures be meshed into one. It is not a FIFRA issue or an 
ESA issue. It is a good government issue.
    Because both FIFRA and the ESA specifically require EPA and the 
Services, respectively, to perform risk assessment procedures, we 
submit that legislation is needed to reconcile the roles of these 
respective agencies, and to mesh two risk assessment requirements into 
one. A starting point for discussion might be counterpart regulations 
that were promulgated in 2004 between the EPA and the Services that 
were partially set aside in another lawsuit brought by activist groups, 
because of their perceived inconsistency with the existing statutes.
    Farm Bureau stands ready to assist you in finding a workable 
solution to this problem.
                                 ______
                                 

  Response to questions submitted for the record by Mr. Barry Bushue, 
                     President, Oregon Farm Bureau

FROM RANKING MEMBER EDWARD J. MARKEY:
Question 1
    In your testimony, you state that you were ``stunned by the 
reluctance and even refusal to utilize the actual use data available 
from Departments of Agriculture and other sources in the development of 
the BiOps.'' Please provide copies to the Committee of all data and 
other sources of information that you believe that the National Marine 
Fisheries Service (NMFS) ignored during the development of the 
biological opinions (BiOps) between 2004 and 2009. For data not in your 
possession, please provide accurate citations to the data and other 
information that NMFS ignored during this time period.
Response:
    a) Data for USDA NRCS contributions are listed in the response to 
Question 2 below.
    b) Water monitoring data were provided to NMFS from WA, CA and OR 
(data from Oregon appears to have been provided later in the BiOp 
process). State agency staff were told at meetings that state generated 
data would be ``considered'', although it is entirely unclear how it 
was ``considered'' (a vague term) and what impact it made on the 
analysis. State Agency staff were also told at meetings that the data 
could not be used because it was not clear to NMFS which data, if any, 
were collected from ``off-channel habitats'' and floodplains. According 
to NMFS, this is critical habitat for young salmonids. Please note when 
water samples are collected, they are typically collected from 
``representative areas.'' ``Representative areas'' are commonly thought 
of as areas with flowing water, rather than water from possibly 
stagnant or pooled water areas from off-channel habitats/flood plains. 
The URL for the Oregon Department of Environmental Quality Oregon 
Laboratory Analytical Storage and Retrieval (LASAR) database is http://
deq12.deq.state.or.us/lasar2/).
    Point 2: Pesticide Use Data was provided by both Washington and 
California. Washington also provided land cover data. I do not have 
URLS for these data sets.
Question 2
    In your testimony, you also state that efforts were made in Oregon 
by USDA through the NRCS and FAS ``to improve water quality and 
conditions on the land that impact it.'' Please provide to the 
Committee all data that demonstrate where and how water quality 
conditions have improved within the State as a result of these efforts, 
and explain how the NMFS should have considered this information.
Response:
    An account of activities made in Oregon to improve water quality 
and conditions that impact it through NRCS and its partners (generally 
Soil and Water Conservation Districts) for 2010 is listed below. This 
information came from http://ias.sc.egov.usda.gov. This table below is 
an example of one year's worth of records from the website. If needed 
NMFS could work with the NRCS to provide a summary of multiple years of 
data to help NMFS characterize activities being implemented to improve 
water quality and conditions on the land. The numbers in the table are 
not additive, as many times, two or three practices will be installed 
on the same acres to achieve the full effect (example, cover crop and 
conservation crop rotation or irrigation system and irrigation water 
management). This provides a summary of efforts by landowners through 
the help of NRCS and FSA to do activities to improve water quality and 
conditions on the land that impact it. This table does not take into 
account activities completed by landowners through their own funds and 
efforts or other programs not linked to the NRCS (for example, the 
Oregon Watershed Enhancement Board Grant program, and EPA 319 grant 
program).
    NRCS and FSA are not funded to collect data that demonstrate where 
and how water quality conditions have improved within the state as a 
result of these efforts. Measurements of water quality conditions in 
Oregon are primarily collected by the Oregon Department of Water 
Quality (DEQ) and can be found at http://www.deq.state.or.us/lab/wqm/
wqimain.htm. Data collected by DEQ is not suitable for establishing the 
impact of efforts by programs such as the NRCS and FSA but rather looks 
at the cumulative impacts of all uses and programs.
    NMFS should consider these efforts as they indicate a huge effort 
by landowners to address water pollution by controlling sediment, 
creating buffers to filter water, and developing riparian zones. All of 
these contribute to addressing transport of material to streams that 
may be toxic to fish.
[GRAPHIC] [TIFF OMITTED] T6204.030

                                 .eps__
                                 
    The Chairman. Thank you very much Mr. Bushue. Dr. Edwards, 
you are recognized for five minutes.

    STATEMENT OF DR. DEBRA EDWARDS, Ph.D., SENIOR MANAGING 
     SCIENTIST, EXPONENT ENGINEER AND SCIENTIFIC CONSULTING

    Dr. Edwards. Thank you and good morning. I appreciate the 
opportunity to testify today.
    My name is Debra Edwards and I am the former Director of 
EPA's Office Pesticide Programs. I am currently employed by 
Exponent, a scientific consulting firm. I am also engaged with 
Texas A&M University as an independent contractor.
    In 2001, a coalition of environmental organizations filed a 
lawsuit against EPA for failure to consult with the National 
Marine Fisheries Service on the effects of 54 pesticides on 
endangered and threatened salmon species in the Pacific 
Northwest.
    In 2002, the Court ordered EPA to initiate consultation 
with the Fisheries Service on the pesticides named in the 
lawsuit by December of 2004. EPA fully complied with that court 
order. In 2007, another lawsuit was filed. This time against 
the Fisheries Service for unreasonable delay in completing the 
consultations that were requested by EPA.
    On July 31, 2008, the Fisheries Service provided EPA with 
its first 482-page draft biological opinion, which included 
broad species jeopardy findings for the three organophosphate 
insecticides. After some negotiation, the Fisheries Service 
ultimately agreed to allow only 46 calendar days for EPA review 
of the draft opinion.
    On September 15, 2008, I signed EPA's formal comment letter 
to the Fisheries Service regarding their July 31 draft opinion. 
In that letter I expressed a number of concerns related to data 
selection and the lack of transparency regarding the scientific 
methodology used to develop the opinion. Specifically, the 
opinion provided no target levels of exposure that would not 
result in jeopardy. It didn't address current pesticide use 
patterns.
    It assumed routine, unlawful misuse. It included 
unrealistic assumptions regarding concurrent use of multiple 
insecticides at the same time in the same location. It didn't 
take into account data that were provided regarding actual 
product usage in California and Washington. It relied upon 
outdated water quality monitoring data. It made incorrect 
assumptions regarding the manner in which pesticides are 
aerially applied for mosquito adulticide control.
    And finally, it lacked transparency in the methods, the 
underlying data, the assumptions, and the calculations 
associated with the population model, such that neither EPA nor 
the public were able to reproduce the model outputs.
    In November of 2008, the Fisheries Service issued its final 
biological opinion for the three pesticides. The final opinion 
continued to include broad jeopardy findings and also specified 
if reasonable and prudent alternatives to avoid jeopardy, 
including large spray drift buffers. Two and a half years 
later, despite more litigation and numerous interagency 
meetings and communications this biological opinion has not 
been implemented.
    The National Academy of Sciences review that has been 
discussed here today is likely to require at least 18 months, 
as you have been told. But that does not include the time it 
will take the Services and EPA to begin to implement its 
recommendations.
    In the meantime, if EPA is mandated to proceed to 
cancellation of a pesticide for which a biological opinion 
already exists that cancellation process will also likely take 
at least 18 months and constitute a significant resource 
commitment for EPA's pesticide program.
    Further, I believe there is a reasonable likelihood that 
such a cancellation proceeding would be unsuccessful due to the 
many scientific uncertainties and the lack of transparency 
associated with existing biological opinions, plus nearly a 
decade after the 2001 lawsuit was filed against EPA no 
meaningful resolution appears likely for at least several more 
years.
    In addition to my concerns regarding the scientific 
transparency of the existing biological opinions, I am 
concerned for the future sustainability of the pesticide ESA 
consultation process in general. There are more than 900 
pesticide active ingredients and nearly 20,000 pesticide 
products registered for use in the United States. Under the 
current consultation paradigm each use pattern for each product 
must be reevaluated every 15 years, taking into consideration 
each geographic use area and each of the approximately 1,200 
listed endangered or threatened species or their critical 
habitat within each use area.
    This complex, multi-faceted pesticide use situation will 
require literally hundreds of thousands of analyses and 
decision points and in my opinion constitutes a significant 
resource challenge for the departments and the agency involved.
    I hope my remarks today have helped to illustrate the 
degree to which the ESA consultation process for pesticides 
needs attention, both from a scientific and a process 
prospective. Thank you.
    [The prepared statement of Dr. Edwards follows:]

     Statement of Debra Edwards, Ph.D., Senior Managing Scientist, 
              Exponent Engineer and Scientific Consulting

    Good morning Chairman Doc Hastings, Chairman Frank Lucas, Ranking 
Members Markey and Peterson, and members of the committees.
    Thank you for the opportunity to testify on this important topic 
today. I hope that my participation will help to focus Congressional 
attention on the need for an improved Endangered Species Act (ESA) 
consultation process for pesticides.
    My name is Debra Edwards and I am the former director of EPA's 
Office of Pesticide Programs. I joined EPA's Pesticide Program in 1985 
as an Environmental Scientist and retired from the position of Program 
Director in 2010. In 2009, I was honored to receive the Presidential 
Rank Award for Meritorious Service as a Senior Executive. In my career 
with the Agency, I held several other leadership positions within the 
Pesticide Program in both scientific and regulatory areas, including 
Director of the Special Review and Reregistration Division, Director of 
the Registration Division, Associate Director of the Antimicrobial 
Division, Associate Director of the Health Effects Division, and Chief 
of both the Risk Characterization and Analysis and Chemistry/Tolerance 
Support Branches within the Health Effects Division. From 1997 to 1999, 
the Agency granted me ``leave without pay'' status so that I could 
volunteer for service in the United States Peace Corps. I served in 
Guatemala as an Agricultural Extension Specialist and taught courses in 
pesticide safety, U.S. pesticide regulation, and sustainable 
agriculture. Prior to joining EPA, I earned a Ph.D. in Plant Pathology 
from The Ohio State University and completed a post-doctoral 
appointment at USDA's Pesticide Degradation Laboratory.
    I am currently employed as a Senior Managing Scientist within the 
Chemical Regulation and Food Safety Center of Exponent, an engineering 
and scientific consulting firm with headquarters in Menlo Park, 
California. I am also engaged with Texas A&M University's Norman E. 
Borlaug Institute for International Agriculture as an independent 
contractor, working on sanitary and phytosanitary capacity building 
activities related to pesticide registration and use in developing 
countries.
    I'd like to begin by explaining what the Environmental Protection 
Agency does, routinely, as part of its pesticide registration and 
periodic re-evaluation activities to assess and manage identified risks 
to non-target organisms, including birds, mammals, plants, fish and 
other terrestrial and aquatic wildlife. Within the Pesticide Program 
headquarters office in Arlington, Virginia, there are approximately 75 
toxicologists, biologists, chemists and environmental modelers working 
within the Environmental Fate and Effects Division. These scientists 
use publicly available, peer reviewed scientific data and methods to 
assess potential risks associated with the use of pesticide products. 
In 2008, EPA's Pesticide Program completed re-registration decisions 
for nearly 400 pesticide chemical cases and through this process many 
pesticide uses were further restricted in their use or eliminated 
entirely to protect wildlife. Under the current FIFRA-mandated 
registration review program, each active ingredient will be re-assessed 
at least every 15 years, to ensure registrations remain in compliance 
with the FIFRA risk/benefit standard. Further, prior to registration of 
any new pesticide use, a full environmental effects assessment is 
completed to determine whether the pesticide use should be registered 
at all or, if registered, how ecological risks can be managed to 
mitigate any identified risks of concern. All of these actions and 
decisions are managed through a robust, deliberative public 
participation process that includes public dockets and detailed Agency 
responses to public comment.
    In November of 2001, a coalition of environmental organizations and 
fishing groups filed a lawsuit, Washington Toxics Coalition (WTC) v 
EPA, against EPA for failure to consult with the National Marine 
Fisheries Service (NMFS) on the effects of 54 pesticides on endangered 
and threatened salmon species in the Pacific Northwest. In July of 
2002, the Court ordered EPA to initiate consultation with NMFS on the 
pesticides named in the lawsuit by December 2004. EPA fully complied 
with that Court order.
    In November of 2007, another law suit was filed by several 
environmental organizations, this time against NMFS for unreasonable 
delay in completing consultations requested by EPA. In July 2008, NMFS 
reached an agreement with the plaintiffs, committing to complete the 
EPA consultations within four years. On July 31, 2008, NMFS provided 
EPA with its first 482-page draft Biological Opinion, which included 
broad species jeopardy findings for three organophosphate insecticides. 
After some negotiation, NMFS ultimately agreed to allow only 46 
calendar days for EPA review of the draft Opinion. EPA posted the draft 
Opinion on its web site on August 14 to allow public viewing and a 
limited comment period on the document.
    On September 15, 2008, I signed EPA's formal comment letter to 
NMFS' regarding their July 31 draft Biological Opinion. In that letter 
I expressed a number of concerns related to NMFS' jeopardy findings. In 
addition to concerns related to the limited time granted for review and 
comment, the letter summarized a number of significant concerns related 
to data selection and the lack of transparency regarding the scientific 
methodology used to develop the Opinion. Specifically, the Opinion: (i) 
provided no target levels of exposure that would not result in 
jeopardy, (ii) didn't address current pesticide use patterns which had 
been significantly altered through EPA's re-registration process, (iii) 
assumed routine unlawful product misuse, (iv) included unrealistic 
assumptions regarding concurrent use of multiple insecticides at the 
same time, in the same location, at maximum use rates, (v) didn't take 
into account data that were provided regarding actual product usage in 
CA and WA, including time and location of use, (vi) relied upon 
outdated and inappropriate water quality monitoring data, (vii) made 
incorrect assumptions regarding the manner in which pesticides are 
aerially applied for mosquito adulticide control, and (viii) lacked 
transparency in the methods, underlying data, assumptions, and 
calculations associated with the population model, such that neither 
EPA nor the public were able to reproduce the model outputs.
    In November of 2008, NMFS issued its final Biological Opinion for 
the three pesticides. The final Opinion continued to include broad 
jeopardy findings and also specified ``reasonable and prudent 
alternatives'' (RPAs) to avoid jeopardy, including 500-1000 foot spray 
drift buffers, among other restrictions. Two and a half years later, 
despite more litigation and numerous inter-Agency meetings and 
communications, this Biological Opinion has not been implemented. 
Within the past year, there have been unsuccessful attempts by EPA to 
seek voluntary compliance; a lawsuit brought by the pesticide 
manufacturers against NMFS, claiming violation of the Administrative 
Procedures Act; a lawsuit brought by environmental organizations 
against EPA for failure to implement the Opinion; and formal petitions 
to EPA from the pesticide industry as well as from grower groups asking 
for rulemaking to establish transparent procedures.
    In March of this year, EPA Administrator Jackson, on behalf of EPA 
and the departments of Agriculture, Interior and Commerce, wrote to 
Ralph Cicerone, Chairman of the National Research Council, requesting 
that the NRC convene a committee of independent experts to review 
scientific and technical issues related to FIFRA consultations under 
the ESA. The NRC expert panel is likely to require at least 18 months 
to conclude its deliberations, not including the time it will take the 
Services and EPA to begin to implement the panel recommendations. In 
the meantime, if EPA is legally or otherwise mandated to proceed to 
cancellation of a pesticide for which a Biological Opinion already 
exists, that cancellation process will likely take at least 18 months 
and constitute a significant resource commitment on the part of EPA's 
Pesticide Program. Further, I believe there is a reasonable likelihood 
that such a cancellation proceeding would be unsuccessful, due to the 
many scientific uncertainties and the lack of transparency associated 
with existing Biological Opinions. Thus, nearly a decade after the 2001 
lawsuit was filed, no meaningful resolution appears likely for at least 
several more years. Clearly, this is a frustrating and expensive 
situation for stakeholders on all sides of the issue.
    In addition to my concerns regarding the scientific transparency of 
conclusions reached in existing Biological Opinions, I am concerned for 
the future sustainability of the pesticide ESA consultation process in 
general. There are more than 900 pesticide active ingredients and 
nearly 20,000 pesticide products registered for use in the United 
States. Under the current consultation paradigm, each use pattern for 
each product must be re-evaluated at least every 15 years, taking into 
consideration each geographic use area and each of the approximately 
1,200 listed endangered or threatened species or critical habitat 
within each use area. This complex, multi-faceted pesticide use 
situation will require literally hundreds of thousands of analyses and 
decision points and, in my opinion, constitutes a significant resource 
challenge for the departments and the agency involved.
    I hope my remarks today have helped to illustrate the degree to 
which the ESA consultation process for pesticides needs attention, both 
from a scientific and a process perspective. Thank you.
                                 ______
                                 

 Response to questions submitted for the record by Dr. Debra Edwards, 
 Senior Managing Scientist, Exponent Engineer and Scientific Consulting

FROM RANKING MEMBER EDWARD J. MARKEY:
1.  As you are probably aware, the National Marine Fisheries Service 
        (NMFS) does not engage in consultations unless the 
        Environmental Protection Agency (EPA) first independently 
        determines that the registration of a pesticide may affect an 
        endangered species. If the EPA had determined that the use of 
        these pesticides had no effect on endangered salmon, 
        consultations would not have occurred. Therefore, which of the 
        following EPA conclusions from its Biological Evaluations do 
        you believe were erroneous and why:
          EPA's determination that the use of pesticide 
        products containing chlorpyrifos, diazon, and malathion may 
        affect multiple evolutionary significant units (ESUs) of 
        endangered salmon
          EPA's determination that the use of pesticide 
        products containing carbaryl, carbofuran, and methomyl may 
        affect multiple ESUs of endangered salmon
          EPA's determination that the use of pesticide 
        products containing bensulide, dimethoate, ethoprop, 
        methidathion, naled, phorate, and phosmet may affect multiple 
        ESUs of endangered salmon.
Response:
    None of the above statements are erroneous. However, a ``may 
affect'' finding under the ESA clearly does not constitute a finding 
that use of these pesticides is likely to jeopardize the continued 
existence of any endangered or threatened species or result in 
destruction or adverse modification of critical habitat. The purpose of 
biological assessment consultations is to determine if such jeopardy 
exists and to develop ``reasonable and prudent alternatives'' to 
minimize potential impacts. As I stated on page 2 of my September 15, 
2008 letter to NMFS regarding their July 31, 2008 Biological Opinion 
for chlorpyrifos, diazinon and malathion, ``it is difficult to see how 
a conclusion could be reached that use of these pesticides jeopardizes 
the continued existence of all 28 ESUs or DPSs of Pacific Salmon and 
Steelhead.'' I do not believe any empirical evidence exists that use of 
these pesticides is appreciably reducing the likelihood of survival or 
recovery of these ESUs or DPSs of Pacific Salmon.
2.  You mention in your testimony that you wrote a letter to NMFS 
        expressing concerns about the data and assumptions made in the 
        biological opinions, but you do not mention earlier requests 
        for information from NMFS to EPA before completing the 
        Biological Opinion in order to resolve these uncertainties. 
        These requests are listed in the Consultation History section 
        of the Biological Opinion, including a request for simple 
        toxicity data on these three pesticides. Are you aware of those 
        requests from NMFS?
Response:
    In my capacity as Pesticide Program Office Director, I was aware of 
the occurrence of information requests and exchanges between EPA and 
NMFS staff prior to the completion of the 2008 Biological Opinion. 
Though I believe EPA did provide all of the information requested by 
NMFS in a timely manner, I do not currently have access to the 
documentation of such exchanges. I recommend that the Pesticide Program 
be queried directly on this matter if such documentation is needed.
3.  Do you believe that the ESA consultation process is entirely 
        duplicative of the Federal Insecticide, Fungicide, and 
        Rodenticide Act (FIFRA) registration process? Is there anything 
        that the NMFS or FWS considers in the ESA consultation process 
        that is not considered by the Office of Pesticide Programs 
        during the registration and re-registration process?
Response:
    EPA does not currently have full access to all of the species 
biology and location data housed within the Services. I believe if EPA 
did have access to such information, it would be able to run an 
efficient and effective regulatory process such that pesticide 
registrations are not only in compliance with FIFRA, FFDCA and PRIA, 
but also with the ESA. At minimum, I believe the public would be better 
served in terms of scientific resource utilization if EPA is given the 
authority, perhaps through a new counter-part regulation, to fully 
manage ESA considerations for pesticide uses for which EPA makes a 
``may affect, but not likely to adversely affect'' finding.
    In August of 2008, in an effort to gain access to critical species 
biology and location data, EPA prepared a draft ``Request for 
Proposals'' (RFP) for the development of an information system to house 
and to analyze biological, habitat and behavioral (species profile) 
information as well as spatially explicit location information relative 
to federally listed threatened and endangered species and their 
critical habitat. This information was to be ``best available'' from 
all credible sources, including Federal Agencies, universities, public 
interest organizations, and States and Tribes. Standards for defining 
what is ``best available'' were to be developed by the federal 
government through a facilitated process. Our reason for preparing this 
RFP was based in our belief that the development of such a data base 
would promote efficiency and transparency in the endangered species 
consultation process. Further, we believed the availability of such a 
data base would be useful not only for EPA's pesticide consultations 
but essentially for all Federal Action Agencies, including the 
Environmental Protection Agency, the Department of Interior, the 
Department of Commerce, the Department of Agriculture, the Department 
of Homeland Security, the Department of Transportation and the Federal 
Energy Regulatory Commission. The system also could be made accessible 
to state agencies, academia, and the general public.
    To date, I do not believe the Services or EPA have issued an RFP 
for the development of this species information data base. However, I 
continue to believe that such a data base could be invaluable in 
improving quality, consistency and efficiency in the identification of 
potential impacts on endangered and threatened species and in the 
development of reasonable and prudent alternatives and measures to 
preclude such impacts.
4.  FIFRA guards against ``unreasonable adverse effects'' on the 
        environment. But FIFRA defines this term to require the EPA to 
        consider the overall economic benefits to agriculture as part 
        of this unreasonableness inquiry. If the economic benefits of 
        the registration of a pesticide slightly outweigh the estimated 
        environmental damage would EPA be authorized under FIFRA to 
        cancel the pesticide? For example, if registration creates $10 
        million dollars in economic benefits, and simultaneously causes 
        $9 million in environmental damage (e.g. from higher water 
        treatment costs) would EPA be authorized under FIFRA to cancel 
        the pesticide? Under this scenario, would EPA be authorized 
        under FIFRA to require a new condition of use (labeling, etc) 
        for the pesticide? If the response is yes to either question, 
        has EPA ever exercised such authority and if so, please 
        describe the circumstances?
Response:
    Actually, to my knowledge, FIFRA's definition of ``unreasonable 
adverse effects on the environment'' makes no mention of agriculture 
and certainly is not confined to economic benefits. Rather, the 
definition, at FIFRA Section 2(bb), is as follows:
    ``The term `unreasonable adverse effects on the environment' means 
(1) any unreasonable risk to man or the environment, taking into 
account the economic, social, and environmental costs and benefits of 
the use of any pesticide, or (2) a human dietary risk from residues 
that result from a use of a pesticide in or on any food inconsistent 
with the standard under section 408 of the Federal Food, Drug, and 
Cosmetic Act (21 U.S.D. 346a).''
    I am personally unaware of any situation in which the EPA 
considered cancellation or retention of a pesticide use based solely on 
a strict mathematical weighing of dollar trade-offs, as described 
above. As to whether EPA would be ``authorized'' under FIFRA to cancel 
a pesticide in the circumstances described above, I would defer to the 
Agency's attorneys.
    EPA has an excellent record of success in requiring new conditions 
of use for pesticide products as a means of risk management through its 
routine registration and re-evaluation programs under FIFRA. It is not 
uncommon, during registration and re-evaluation activities, for the 
Agency to identify a risk of concern for human or non-target organism 
exposures. In these circumstances, the Agency contacts the pesticide 
registrant to request voluntary changes in the existing or proposed 
registration (e.g., labeling) to mitigate the identified risks. Non-
target organism risk management tools commonly used to achieve risk 
mitigation include: reduction in application rate, reduced number of 
permissible applications per season, changes in method of application 
(e.g., application equipment) and spray drift buffers. Registration 
applications may be voluntarily withdrawn or existing registrations 
voluntarily cancelled when no practical risk mitigation can be 
identified that would sustain product utility. I believe the 
demonstrated success of EPA in achieving voluntary compliance with 
requested risk mitigation and labeling changes can be directly 
attributed to the fact that EPA runs a transparent, open public 
participation process in its re-evaluation program and, more recently, 
in its registration program. On many occasions, I have heard non-
government environmental advocacy organizations, e.g., representatives 
of the NRDC and the American Bird Conservancy, state that the public 
participation process run by EPA's Pesticide Program is a model for 
good government.
    I believe that the reason the industry has not voluntarily complied 
with the ``reasonable and prudent alternatives'' (i.e., recommended 
product use changes) recommended by NMFS in conjunction with its recent 
Biological Opinions is that they were not developed through such an 
open, deliberative process.
5.  In Washington Toxics Coalition v. U.S. Dept. of Interior, 457 F. 
        Supp. 2d 1158, 1184 (D. Wash 2006), the Court stated that 
        ``EPA's risk assessment process is not only less protective 
        than Service determinations, there is overwhelming evidence on 
        the record that without a Service check, EPA risk assessments 
        (leading to pesticide registrations) would actually result in 
        harm to listed species.'' Do you believe that the Court's 
        conclusion that EPA-OPP's risk assessment procedures is less 
        protective was erroneous, and if so, why?
Response:
    It is difficult to say whether Service determinations are or will 
be more ``protective'' than those of EPA because so very few of them 
have been produced and the ones that do exist are generally lacking in 
transparency as to how the conclusions were reached. I believe the 
principle concerns voiced by the Court were related to many of the 
topics the National Research Council has recently been asked to address 
by EPA, the Services, and USDA, i.e., ``identification of best 
available scientific data and information; consideration of sub-lethal, 
indirect and cumulative effects; the effects of chemical mixtures and 
inert ingredients; the use of models to assist in analyzing the effects 
of pesticide use; incorporating uncertainties into the evaluations 
effectively; and the use of geospatial information and datasets that 
can be employed by the departments and agencies in the course of these 
assessments.''
    The EPA's Pesticide Program, as I noted in my written testimony, 
has on staff a large number of highly qualified toxicologists, 
biologists, chemists and environmental modelers who are experienced in 
the evaluation of potential non-target organism effects related to 
pesticide use. In fact, in many of the consultation documents EPA 
scientists have delivered to the Services, current pesticide uses that 
``may affect'' (directly) endangered and threatened species have been 
identified. Nevertheless, instead of providing well-referenced and 
documented Biological Opinions in response to such requests for 
consultation, the Services' reaction has typically been: (i) no 
response at all, (ii) rejection of the EPA consultation package as 
``incomplete'' or (iii) when faced with a lawsuit for failure to 
respond, a Biological Opinion that cannot be implemented due to failure 
to document the scientific rationale for onerous ``reasonable and 
prudent alternatives'' recommendations. At minimum, it is unclear to me 
how refusal of the Services to provide any Opinion or advice to EPA on 
how best to address a documented, direct ``may affect'' finding for a 
pesticide use can be deemed by anyone as ``protective.''
6.  Given that many of the pesticides considered in the Biological 
        Opinions are regularly found in water bodies throughout the 
        country, do you believe that the regional offices of NMFS on 
        the West Coast, the experts on salmon conservation, should have 
        a role in evaluating the impacts of these pesticides on salmon? 
        Please explain what role you believe that NMFS should play in 
        protecting endangered salmon from pesticides.
Response:
    As I have noted above in response to question #3, EPA does not 
currently have full access to all of the species biology and location 
data housed within the Services. For salmon species, those data are 
likely housed within the NMFS Regional Offices on the West Coast. 
Further, under existing laws and regulations, I believe NMFS has a 
legal obligation under the ESA to provide timely Biological Opinions to 
Federal Departments and Agencies that ``consult'' regarding actions for 
which ``may affect'' findings have been made with respect to endangered 
or threatened species or their critical habitat. Historically, for EPA 
pesticide consultations, NMFS has not met its obligations in this 
regard and only recently (as a result of legal action against NMFS) has 
begun to provide EPA with Biological Opinions. Some of these Biological 
Opinions are in response to consultation requests submitted more than 5 
years prior by EPA.
    In my opinion, the pesticide-related Biological Opinions issued by 
NMFS are not in compliance with President Obama's Directives regarding 
(1) Transparency and Open Government (January 2009) or (2) Scientific 
Integrity (March 2009). Below are some pertinent quotes from these 
Directives:
    ``My Administration will take appropriate action, consistent with 
law and policy, to disclose information rapidly in forms that the 
public can readily find and use.''
    ``To the extent permitted by law, there should be transparency in 
the preparation, identification, and use of scientific and 
technological information in policymaking.''
    Further, John P. Holdren, Director of Science and Technology 
Policy, in his December 2010 Scientific Integrity Memorandum to the 
Heads of Executive Departments and Agencies stated:
    ``...agencies should expand and promote access to scientific and 
technological information by making it available online in open 
formats. Where appropriate, this should include data and models 
underlying regulatory proposals and policy decisions.''
    ``Agencies should communicate scientific and technological findings 
by including a clear explication of underlying assumptions; accurate 
contextualization of uncertainties; and a description of the 
probabilities associated with both optimistic and pessimistic 
projections, including best-case and worst-case scenarios where 
appropriate.''
    In summary, if the Services ``should'' continue to play a role in 
pesticide matters related to the Endangered Species Act, I believe they 
should be required to provide timely response to consulting agencies 
and to produce Biological Opinions that are in compliance with this 
Administration's stated commitments to transparency and scientific 
integrity.
                                 ______
                                 
    The Chairman. You didn't even need that seven seconds that 
you required. Thank you.
    Mr. Mathison, you are recognized for five minutes.

 STATEMENT OF WEST MATHISON, PRESIDENT, STEMILT GROWERS, LLC, 
  BOARD PRESIDENT, WASHINGTON STATE HORTICULTURAL ASSOCIATION

    Mr. Mathison. Thank you Chairman Hastings and distinguished 
members of both Committees.
    My name is West Mathison. I am the President of Stemilt 
Growers in Wenatchee, Washington. I am also the Board President 
of the Washington State Horticultural Association. I am a five 
generation farmer and I grew up living on a fruit orchard. The 
Town of Wenatchee is a farming community that has a passion for 
recreation and conservation.
    Our family and our company developed a program called 
Responsible Choice and our mantra is to enrich the soils where 
we live, work, and play. This culture has led us in partnership 
with our independent growers to being the largest grower of 
organic tree fruit in the U.S.
    Humbly speaking, I feel our many awards around food safety 
and environmental stewardship speak for themselves. Washington 
State may be well known for Boeing, Starbucks, and Microsoft, 
but perhaps less well known is its diverse agricultural 
products, such as apples, pears, cherries, wheat, grapes, hay, 
milk, potatoes, forest products, hops berries, and more, to 
name a few.
    In Washington, agriculture production is valued at $9.5 
billion, trading 82,000 permanent jobs with $1.5 billion in 
wages, $2.2 billion in proprietor income and $16 billion in 
total economic impact annually. The tree fruit industry alone 
exceeds 25 percent of this number. Seasonal workers add another 
100,000 jobs for pears, apples, and cherries. With only 2 
percent of the apples we grow being consumed in Washington, it 
is not surprising that we depend on both domestic and export 
markets insomuch that we export 30 percent of our apples and 
cherries.
    I want to affirm the motivation to have reasonable 
regulation. I strongly urge your support to remedy the 
dysfunctional process underway between the Services and the EPA 
regarding ESA consultation and the development of BiOps for 
protection of salmon.
    With the first series of BiOps, we face losing our ability 
to manage large sections of our farms in Washington. If not 
remedied, this precedent will endanger the future use of all 
pesticides which EPA believes may affect endangered or 
threatened species, both for conventional and organic farming 
practices. I am deeply concerned that this will put my business 
and others in agriculture into great jeopardy, if implemented.
    Moreover, these ideas of mitigation would destroy jobs and 
hurt many rural communities around the nation. And how is this? 
The proposed mitigation includes 100, 500, and 1000-foot no 
spray buffers around all conveyances of water, including 
ditches of any size and seasonal streams. This would have a 
devastating impact on existing farms.
    A map, which is an exhibit that is shown here, is from the 
Washington State Department of Agriculture for two counties in 
the state and shows that mitigation measures would prevent the 
use of some pesticides on up to 75 to 85 percent of farmland. 
For a quick horticultural lesson, the two most pervasive pests 
for pears and apple growers are psylla and codling moth. Both 
are prolific flyers and can travel large distance in spreading 
the next generation as they go. To leave as little as 10 
percent of an orchard untreated is to leave a nursery for these 
pests to continue their devastation of our crops.
    Buffers may sound reasonable from a horticultural 
perspective, but they may and could and would stimulate the 
need for more pesticides because of the infestation of pests 
that harbor in these buffers. I like many other growers would 
rather not spray or spray as little as possible. Simply 
speaking, these enhanced buffers can make this issue worse. And 
why is managing the orchard important? Damaged fruit cannot be 
sold in the fresh market. Growers cannot stay in business 
producing anything but the most marketable fruit per acre.
    Clearly, the Services failed to assess the economic effects 
of their mitigation measures. The jobs of thousands of rural 
people and the livelihood of many American farmers should be 
considered. As growers, we consider this a national crisis 
affecting 50 states.
    In March, the EPA and the U.S. Departments of the Interior, 
Commerce, and Agriculture sent a letter to the National Academy 
of Sciences stating that the process is flawed. Based on this, 
we would recommend to suspend the implementation of the three 
BiOps and any further work until NAS completes its work and a 
process is established based on the peer-reviewed science.
    I am proud to grow apples, pears, and cherries--all healthy 
fruits which the new dietary guidelines in the medical 
community say that we should eat more to fight obesity and 
improve health and IQ. It is ironic that today this issue 
threatens to disrupt the production of the very same crops. If 
our production declines, American consumers will simply enjoy 
more imported products by foreign competitors with less 
stringent food safety requirements.
    As farmers, we want to be a part of crafting the solution 
that protects the listed species, while enabling them to 
produce safe and affordable food.
    [The prepared statement of Mr. Mathison follows:]

Statement of West Mathison, President, Stemilt Growers, LLC, and Board 
   President, Washington State Horticultural Association, Wenatchee, 
                               Washington

    Good morning Chairman Hastings, Ranking Member Markey, Chairman 
Lucas, Ranking Member Peterson and distinguished members of both 
Committees.
    My name is West Mathison and I am President of Stemilt Growers, in 
Wenatchee, Washington. I am also Board President of the Washington 
State Horticultural Association. In partnership with our independent 
growers, Stemilt is the nation's largest supplier of sweet cherries and 
organic tree fruits, as well as a key supplier of Washington-grown 
apples, pears and stone fruit.
    The Stemilt company roots trace back to 1893, when my great-great 
grandfather Thomas Cyle Mathison, homesteaded 160 acres on Stemilt Hill 
overlooking the Columbia River and the town of Wenatchee. I represent 
the fifth generation of our family owned and operated business. My 
family has long understood the strong connection between the success of 
our business and stewardship of the land and respect for our 
environment.
    In 1989, my grandfather, Tom Mathison launched the Responsible 
Choice program, stating that ``the truth of the matter is we are just 
caretakers of the land for a very short time. It's important that we 
leave it as good as we possibly can, or better if we can.'' Through 
this program we became an early adopter of sustainable agriculture, 
reducing chemical use as well as utilizing integrated pest management 
programs and beneficial predators such as falcons to ward-off fruit 
damaging birds. (See attachment 1: ``Responsible Choice'').
    I strongly believe that our commitment to the environment will play 
an integral role in ensuring the success of our business for 
generations to come. That being said, our future also depends on 
continued access to critical crop protection tools needed for pest and 
disease control.
Agriculture in the State of Washington
    Washington State may be well known for Boeing and Microsoft but 
perhaps less well known is its diverse agricultural output of apples, 
pears, cherries, wheat, grapes, hay, milk, potatoes, forest products, 
hops, berries and more. We provide nearly 2/3 of the fresh apples 
consumed in the US and export nearly a third of our crop. Overall 
agricultural production is valued at $9.5 billion creating 82,000 
permanent jobs with $1.5 billion in wages, $2.2 billion in proprietor 
income, $219 million in taxes and $16 billion in total economic impact. 
. ..annually. Tree fruits alone exceed \1/4\ of this total. Seasonal 
workers add another 100,000 jobs for pears, apples and cherries alone. 
With only 2% of the apples we grow being consumed in Washington State 
it is not surprising that we depend on both domestic and export 
markets. Fruit and vegetable products account for 51% of the traffic 
moving to export markets through the Ports of Seattle and Tacoma.
Endangered Species Act and Pesticides
    Thank you for the opportunity to speak today about the impact of 
federal regulatory activities on the Endangered Species Act (ESA) and 
pesticide use. Under current pesticide law, EPA must evaluate the risk 
of harm to human health and the environment (including fish, wildlife 
and ``non-target'' plants) before approving a pesticide.
    Under the ESA, EPA is required to consult with the Interior 
Department's U.S. Fish and Wildlife Service and the Commerce 
Department's National Marine Fisheries Service (the ``Services'') when 
EPA determines its actions may affect a listed species under ESA.
    Over the last decade, EPA has been repeatedly sued to require 
consultations with the Services for hundreds of pesticides across the 
nation and has agreed to do so. In the Pacific Northwest, which is 
affected by the first series of biological opinions (BiOps), we face 
losing our ability to manage large sections of our orchards, farms and 
ranches due to questionable use restrictions proposed by the Services 
for certain key crop protection tools. These products have already met 
EPA safety standards as required under federal law. If not remedied, 
this precedent will endanger the future use of all pesticides which EPA 
believes may affect endangered or threatened species, both for 
conventional and organic agricultural production.
    I want to affirm the motivation to have reasonable regulations. 
But, I strongly urge your support to remedy the dysfunctional process 
underway between the Services and EPA regarding ESA consultation and 
development of BiOps for protection of listed salmon. The approach is 
seriously flawed. I am deeply concerned that it will put my business 
and others in agriculture--in Washington State and beyond--into great 
jeopardy if implemented.
    Both the Services and EPA claim they use appropriate science to 
conduct pesticide evaluations and develop mitigation measures. However, 
the lack of collaboration between the Services and EPA has resulted in 
contradictory risk assessments for the pesticides subject to completed 
BiOps. For example, the Services failed to consider pertinent data and 
instead relied on outdated and irrelevant studies. EPA did not consider 
the Services' recommendations sound enough to require their adoption by 
pesticide registrants. This has led to yet another lawsuit to force EPA 
to implement unnecessary pesticide restrictions.
Washington Stream Sampling Results Ignored
    Serious questions remain about the approach used by the Services in 
the development of these three BiOps that suggest they are fatally 
flawed.
    One is particularly close to home. Six years worth of in-stream 
testing conducted by Washington State Department of Agriculture and 
Department of Energy showed no readings above the minimum EPA 
established level which presents a risk to salmon. On the contrary, the 
salmon population is actually increasing and last August the Oregonian 
newspaper reported that that the Columbia River experienced a sockeye 
salmon run that was ``the highest since the Bonneville Dam started 
operating in 1938.'' Yet, the BiOps use modeling data from Mid-West 
studies dealing with standing bodies of water, not the swift moving 
rivers in the Pacific Northwest.
    Pesticide applicators are already careful to follow the EPA label, 
as shown by the in-stream testing. The BiOps assume all pesticides 
within the group under review will be present and/or used at the same 
time and at their maximum label rate. Neither is accurate. It would be 
like assuming that when I have a headache I take the maximum dosage of 
Tylenol, Advil and Aspirin. This exaggeration of risk by the Services 
led to their conclusion that there is substantial risk which requires 
mitigation while real-world scientific data that indicates otherwise.
    The proposed mitigation includes 100, 500 and 1,000 foot no-spray 
buffers around all conveyances of water, including ditches of any size 
and seasonal streams. This would have a devastating impact on existing 
farms and orchards in Washington. Studies by the Washington State 
Department of Agriculture of existing farms and orchards show upwards 
of 10 percent would be within the 100 foot buffer, 50 percent would be 
within the 500 foot zone and nearly 80 percent would be within 1,000 
feet. A map developed by the Washington State Department of Agriculture 
for two counties in the state shows that the NMFS mitigation measures 
would prevent the use of affected pesticides on up to 75 to 85 percent 
of the farmland (See illustration below).
[GRAPHIC] [TIFF OMITTED] T6204.021


    .epsFor a quick horticultural lesson; the two most pervasive pests 
for pear and apple growers are psylla and codling moth. Both are 
prolific flyers and can travel large distance spreading the next 
generation as they go. If we are to achieve our goal of fewer pesticide 
applications--remember, pesticides are expensive to use and apply--then 
maximum efficacy must be obtained from every application. To leave 10% 
or more of your orchard untreated is to leave a nursery for these pests 
to continue their devastation of our crops. Buffers may sound 
reasonable but from a horticultural perspective they would stimulate 
the need for more pesticides because of infestations of pest that would 
harbor in these buffers. Simply speaking, buffers make the problem 
worse.
    Damaged fruit cannot be sold into the fresh markets; neither do 
processors want pest riddled fruit. Growers cannot stay in business 
producing anything but the most marketable fruit per acre. Warehouses 
that package and market the grower's fruit can only sell high quality, 
pest free fruits. In short, the entire system depends upon highly 
effective means of pest control whether that fruit is grown 
organically--which does not mean pesticide free--or conventionally.
    Despite the impact these mitigation measures could have on farm 
practices, the Services failed to assess their economic effects. This 
should be considered as decisions are made.
    Congress recognized the serious impacts that ESA could have upon 
the nation's agricultural community. As a result, the ESA Amendments of 
1988 were passed which included Section 1010 mandating that ESA 
compliance for EPA's pesticide program be designed to minimize the 
impact on agricultural producers and other affected pesticide users and 
applicators. This provision should be adhered to.
    Growers need to know that pesticides will be available to protect 
their crops, whether apples, pears and cherries in Washington or other 
crops across the country. The Services now face a lengthy backlog of 
litigation-driven BiOps. If this continues, additional pesticides will 
face this dysfunctional consultation process between EPA and the 
Services. Consequently, the use of more products will be thrown into 
jeopardy if pesticides scheduled to go through reregistration are also 
subject to this process.
    While some may say that alternative products are available to 
replace those in the completed BiOps, these too could face the same 
future unless the failed process is fixed. Growers need clarity and 
confidence about the crop protection tools we need and use.
Growers Seek Involvement in Process
    Now I want to affirm the EPA. They have been effectively monitoring 
the plant protection materials used by farmers, ranchers and 
orchardists. The EPA has achieved this by having a level playing field 
where all can be heard. As key stakeholders, growers seek an 
opportunity to provide input into the BiOps and mitigation measures 
identified by the Services. This is the process that has worked so well 
at the EPA for registering pesticides. In this process, the EPA sets a 
level of acceptable risk and growers participate in determining 
permissible usage and application rates to remain within these risk 
parameters.
    But in the consultation between the Agencies and EPA we have been 
largely left out. The court-managed process has resulted in growers, 
who have a very legitimate interest in the outcome, being bound to a 
single recommended practice into which they had no input. There is no 
``comment period'' as is required by law when EPA makes its pesticide 
decisions. For example, growers provide information to EPA about 
production practices, recommendations on the impacts of various 
mitigation options, and other issues. Our future will be affected by 
the BiOps, yet we do not have a bona fide seat at the table.
    The National Marine Fisheries Services (NMFS) has started talking 
informally with producer representatives, after encouragement by 
Congress. However, this is at the agency's discretion and does not 
address the flawed process that has already been concluded with the 
first three completed BiOps. With additional lawsuits filed, NMFS is 
unlikely to have the staff capacity to go back and fix the earlier 
BiOps. This informal consultation may be discontinued if the agency 
faces court-ordered consultation on hundreds of additional products 
across the country.
    A clear and open official process is needed to involve 
stakeholders. It could be patterned after the deliberative process 
adopted after passage of the 1996 Food Quality Protection Act that 
enabled EPA to develop its science policies and practices to implement 
the new law. In that case, USDA and EPA worked closely with 
stakeholders and their advisory committees to solicit recommendations, 
gather real-world data and explain decisions.
A National Crisis
    With the recent filing of a nationwide lawsuit against EPA, this 
ESA pesticide issue is now a national crisis affecting growers and 
imperiling their crops across the country. The suit involves more than 
380 pesticides and 214 threatened or endangered species.
    In March, EPA and the U.S. Departments of the Interior, Commerce 
and Agriculture acknowledged that this consultative/BiOp process is 
broken when they sent a joint letter to the National Academy of 
Sciences (NAS) requesting an independent review of key science issues. 
It is critical that the conflict be resolved between the Service and 
EPA on scientific risk assessment and evaluation for pesticides subject 
to ESA consultation.
    Since the government itself recognizes that the process is flawed, 
implementation of the three BiOps and further work should be suspended 
until the NAS completes its work and a process is established based on 
the best available peer-reviewed science.
    I am proud to grow apples, pears, and cherries--all healthy fruits 
which the new Dietary Guidelines, the medical community and health 
officials say we should eat more of to fight obesity and improve 
health. It is ironic that at the same time the dysfunctional BioOp 
process threatens to disrupt production of these very same specialty 
crops. If our production declines, American consumers will simply 
increase enjoy more imported fruit produced by foreign competitors.
    Farmers want to be part of crafting a solution that protects listed 
species while still enabling them to produce safe and affordable food. 
I urge you to encourage the Administration to achieve this goal for the 
benefit of America's consumers and American agriculture.
    [NOTE: Attachments have been retained in the Committee's official 
files.]
                                 ______
                                 

 Response to questions submitted for the record by Mr. West Mathison, 
                    President, Stemlit Growers, LLC

FROM RANKING MEMBER EDWARD J. MARKEY:
1.  In your testimony, you state ``the Services failed to consider 
        pertinent data and instead relied on outdated and irrelevant 
        studies.'' Please provide copies to the Committee of all data 
        and other sources of information that you believe that NMFS 
        ignored during the development of the BiOps between 2004 and 
        2009. For data not in your possession, please provide accurate 
        citations to the data and other information that NMFS ignored 
        during this time period.
West Mathison Response
    It is my understanding that the services dismissed available 
surface water monitoring data collected by the state of Washington as 
not being representative of likely salmonid exposure to the 
agricultural chemicals. Since this data was gathered in a way designed 
specifically to estimate risk to salmonids of pesticides in water it 
should have been a bigger part of the risk assessment. The data is 
available at: http://agr.wa.gov/PestFert/natresources/SWM/.
2.  In your testimony, you state that the ``BiOps use modeling data 
        from Mid-West studies dealing with standing bodies of water, 
        not the swift moving rivers in the Pacific Northwest.'' Please 
        provide specific citations to the BiOps where such assumptions 
        are made.
West Mathison Response
    NMFS uses a very conservative modification of the EPA's ``farm 
pond'' model to estimate worst case scenarios for pesticide 
contamination in shallow water habitats that I do not believe 
represents the majority of surface waters where salmonid habitat exists 
in rivers of the inland Pacific Northwest. Since this shallow water 
risk scenario is a prominent feature of the biological opinions it 
should be easy to reference upon review of any of the opinions.
                                 ______
                                 
    The Chairman. I thank you. And Mr. Mathison thank you very 
much for describing the agricultural mix in my district because 
everything that you listed is grown in my district, so I 
appreciate that very much.
    Secretary Newhouse, you are recognized for five minutes.

   STATEMENT OF MR. DAN NEWHOUSE, DIRECTOR, WASHINGTON STATE 
                   DEPARTMENT OF AGRICULTURE

    Mr. Newhouse. Thank you Chairman Hastings, Chairman Lucas, 
members of the Committee. I do thank you for convening this 
hearing today on the Federal Endangered Species Act, the ESA, 
the consultation process for pesticides.
    My name is Dan Newhouse. I am the Director of Agriculture 
for the State of Washington. And just as importantly, I am a 
farmer from the small town of Sunnyside, Washington, where I 
raise hops, grapes, apples, and other kinds of fruit as well as 
some row crops.
    I am also testifying on behalf of the National Association 
of State Departments of Agriculture, NASDA, which represents 
the commissioners, secretaries, and directors of the State 
Departments of Agriculture in all 50 states and 4 territories. 
We as Ag Departments are responsible for a wide range of 
programs, including food safety and the spread of plant and 
animal pests and diseases as well as fostering the economic 
vitality of our rural communities.
    In 43 states, including my own, we have the delegated 
authority from EPA to enforce the Federal Insecticide, 
Fungicide, and Rodenticide Act, known as FIFRA. We regulate 
pesticide labeling, distribution and use.
    First, let me say that we do support the goals of the 
Endangered Species Act. We want prudent, effective protections 
for threatened and endangered species of fish and animal 
populations. But we also want an environment where farmers can 
also be successful. We do not believe that these two things are 
mutually exclusive.
    That being said, we remain concerned about the current 
pesticide registration regulatory process. Over the past ten 
years, we in the Pacific Northwest have watched this process on 
the impacts of pesticides on endangered salmon play out between 
EPA and NMFS, the National Marine Fisheries Service.
    Under court-ordered consultations, NMFS has already issued 
biological opinions on 24 pesticides. The mitigation measures 
identified by NMFS to protect salmon include expanded buffers, 
preventing pesticide use ranging from, as you have heard from 
100 to 1000 feet around all water bodies. And we can't 
underscore this enough. That means all streams, whether, in 
fact, they are natural or man-made, all drainage, ditches, 
canals, even intermittent stream beds.
    The impact these expanded buffers will have on Ag 
production across my state is significant. For example, as you 
have just seen in the map in the Skagit Delta, some of the most 
productive farmland in the country, a 500-foot buffer impacts 
almost half the Ag land. A 1000-foot buffer, three quarters of 
the Ag land. This will effectively prohibit the use of certain 
pesticides critical to the protection of some very high-valued 
crops.
    Now you must ask the question will these expanded buffers 
improve water quality in salmon-bearing streams? My own agency, 
along with our own State Department of Ecology has been 
conducting surface water monitoring since 2003. And our data 
shows that today's agricultural practices in water sheds across 
the state result in pesticide concentrations that are already 
consistently below the levels of concern set by NMFS and EPA in 
these biological opinions. But rather than incorporating our 
real world data, NMFS defers to conservative modeling in their 
identified potential problems.
    The one-year implementation time line is also a concern. 
Our growers may not have a viable alternative pesticide already 
registered for use. Without these appropriate substitutes plant 
pests and disease will impact the viability of Ag production as 
well as our ability to meet the expert requirements of our 
trading partners.
    I am encouraged about the recent changes to the 
consultation process. NMFS has adopted quantifiable targets to 
determine what constitutes jeopardy to endangered salmon. Now 
we do have a better understanding of what is needed to protect 
the listed species. Furthermore, NMFS Regional Administrator 
Will Stelle has organized several meetings to facilitate 
communications between NMFS, EPA, USDA, states and other 
stakeholders. Ongoing discussions with EPA's Larry Elworth and 
others have resulted in open communication channels that have 
truly been very helpful. But it is our impression that NMFS and 
EPA are not communicating well with each other through this 
process.
    Correspondence between them shows that there is little 
agreement on data and methods used in these assessments. We do 
think that the National Academy of Sciences outside review will 
go a long way to resolving disagreements, but we are concerned 
the time-ordered time line is going to be too long to improve 
the consultation process. We must see a review of the initial 
biological opinions. Any new process must include opportunities 
for state and Ag producers to make additional comments on these 
opinions.
    What we have seen in the Northwest has now become a 
national issue. This recent lawsuit now takes into effect 300 
pesticides and 214 species and it could impact pesticide 
registrations in virtually every major Ag region in the 
country. I know that many of your states have a greater number 
of threatened and endangered species than I do in my own state. 
Given these logistical challenges and time lines, I fear that 
the consultation between the two agencies on an even larger 
scale will be unsustainable and due to the lack of Federal 
resources will be unsustainable.
    In my state, due to unresolved challenges to the recent 
biological opinions, growers continue to operate in an 
uncertain environment. I now hear from my colleagues and I know 
that each one of them at some point in the future would like to 
be here in this chair to express to you their concerns to the 
industry in your states.
    So thank you very much for attention to this issue. I look 
forward to working with you in the future.
    [The prepared statement of Mr. Newhouse follows:]

  Statement of Dan Newhouse, Director, Washington State Department of 
Agriculture, on behalf of the National Association of State Departments 
                             of Agriculture

    Chairman Hastings, Chairman Lucas, Ranking Member Markey and 
Ranking Member Peterson, thank you for convening this hearing today on 
the Federal Endangered Species Act (ESA) consultation process for 
pesticides. I appreciate the opportunity to testify today and share a 
state agency perspective on this important topic.
    I am testifying today on behalf of the Washington State Department 
of Agriculture as well as the National Association of State Departments 
of Agriculture (NASDA). 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 the 
Environmental Protection Agency (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 
use pesticides in their administration of invasive-species control 
programs such as the control of apple maggot in Washington State.
    I am here today because the pesticide registration process faces 
serious challenges from litigation to compel compliance with ESA. While 
we all seek to protect threatened and endangered species, a litigation-
driven process that fails to adequately incorporate the expertise of 
state agencies and other stakeholders and does not recognize the 
impacts on end users of pesticides, is not acceptable.
    Over the past ten years, we in the Pacific Northwest have seen up 
close the implications of an ESA consultation process that is badly 
broken. In 2002, the U.S. Environmental Protection Agency (EPA) was 
sued by a coalition of environmental groups for failure to consult 
under the ESA on 54 pesticides used for crop protection in the Pacific 
Northwest that could potentially affect threatened or endangered 
salmon.
    Later that year, the U.S. District Court for the Western District 
of Washington found that EPA failed to consult with the National Marine 
Fisheries Service (NMFS) on the effects to salmon from 54 pesticides. 
The court ordered EPA to make ``effects determinations'' for all 
pesticides in question by August 1, 2003.
    EPA's initial assessment determined 37 of the 54 pesticides ``may 
affect'' listed salmonid species. These 37 pesticides were submitted to 
NMFS for formal consultation. However, NMFS failed to initiate 
consultation after receiving EPA's effect determinations. As a result, 
in November 2007 the Northwest Coalition for Alternatives to Pesticides 
et. al. sued NMFS for failure to complete the consultation on the 37 
pesticides. On August 1, 2008, NMFS and plaintiffs negotiated a 
stipulated agreement that requires them to complete the biological 
opinions by February 2012, which is nearly 10 years after the original 
court ruling against EPA.
    In compliance with the 2008 court order, NMFS has authored the 
first four biological opinions that include sweeping new requirements 
for pesticide use. To reduce the chance for jeopardy to threatened and 
endangered salmon species occurring as a result of application of the 
pesticides of concern, NMFS specified mitigation measures known as 
Reasonable and Prudent Alternatives (RPAs) to protect listed salmon. 
These measures are expected to affect an extensive amount of 
agricultural land in California, Oregon, Idaho and Washington.
    The RPAs outlined in the biological opinions for protecting salmon 
include drift and runoff buffers, application limitations when wind 
speed exceeds 10 mph, application prohibitions when soil moisture is at 
field capacity or a storm event is likely in 48 hours following the 
application, reporting of all incidents of fish mortality, and 
effectiveness monitoring. Of these requirements, three specific 
elements of the RPAs have generated substantial concern:
1. The definition of water bodies to which the RPAs apply
    According to NMFS, ``salmonid habitats are defined as freshwaters, 
estuarine habitats, and nearshore marine habitats including bays within 
the evolutionary significant unit ranges including migratory corridors. 
The freshwater habitats include intermittent streams and other 
temporally connected habitats to salmonid-bearing waters. Freshwater 
habitats also include all known types of off-channel habitats as well 
as drainages, ditches, and other manmade conveyances to salmonid 
habitats that lack salmonid exclusion devices.''
    The definition presented by NMFS is overly broad and includes water 
bodies that are not salmon bearing. Washington State fish and wildlife 
experts have explicitly defined the extent of salmon habitat in 
Washington; using state specific data would allow NMFS to provide a RPA 
that focuses more on where the fish are and less on general 
assumptions.
2. The size of the buffers specified
    The initial biological opinions rely heavily on buffers ranging 
from 100 to 1000 feet around waterbodies identified as salmon habitat. 
The impact these buffers will have on agricultural production across 
the state is significant. For example, in the Skagit Delta in Western 
Washington a 500-foot buffer would affect an estimated 48 percent of 
agricultural lands, while a 1000-foot buffer would affect an estimated 
75 percent of agricultural lands. Notably, buffers were not calculated 
for all ditches and intermittent streams because their locations are 
not known with specificity. The actual agricultural acres affected are 
likely greater than estimated due to the presence of ditches and 
intermittent streams and because farmers typically do not partially 
treat a field and to do so is not generally an effective treatment for 
a pest. Similar statistics were calculated for the Wenatchee Valley in 
eastern Washington.
    Buffers this size applied to salmon habitat, as defined in the 
initial biological opinions, will effectively result in a prohibition 
of use for those pesticides within the Skagit Delta, Wenatchee Valley 
and similar areas.
3. One-year implementation timeline for the RPAs
    The one-year timeline specified in the biological opinion may allow 
EPA time to implement the specified RPAs. However, one year is not 
adequate to allow for exploration of alternative pest control 
strategies for farmers. Minor crops may not have a viable replacement 
pesticide registered for use or an alternative pesticide may not work 
well with integrative pest management (IPM) programs that balance pest 
control with beneficial insect populations and use of specific 
pesticides. Another concern for minor crops is whether a Maximum 
Residue Level (MRL) has been established for replacement pesticides in 
export markets. If a MRL is not established for a replacement 
pesticide, international trading opportunities are severely limited.
    Correspondence between NMFS and EPA indicates there is little 
agreement on the data and the underlying assumptions used to assess 
effects of pesticides on salmon in the consultation process. Due to 
conflicting statutory requirements and litigation-driven consultation, 
the working relationship between EPA and the Services can be described 
as fractured at best and, at its worst, openly antagonistic. As a 
result, there is little give and take between EPA and the Services as 
envisioned within the ESA consultation handbook for conducting ESA 
section 7 activities.
    One area that needs to be resolved is the use of water quality 
monitoring data versus modeled exposure values. Washington has 
conducted targeted water monitoring which shows concentrations are 
below levels of concern for salmon. However, NMFS defers to modeled 
exposures for pesticides in salmon-bearing streams that show 
concentrations of concern. Assessment of the effects of listed species 
to pesticides must balance real-world exposure with conservative 
modeled values.
    I am encouraged that EPA and the Services requested the National 
Research Council to convene a committee to review the scientific and 
technical issues that have arisen through the consultation process. 
However, I am concerned the review will take a minimum of 18 months and 
NMFS is still required by the courts to complete their biological 
opinions for salmon next year. Further, it is critical that as EPA and 
the Services resolve their differences on the technical issues and 
procedures, the biological opinions completed to date should be 
reassessed using the agreed upon procedures.
    Transparency and accessibility is another area that has been 
lacking in the consultation process. Consultation for ESA compliance 
takes place between two federal agencies and, unlike the pesticide 
registration and review process, state agencies and other stakeholders 
have limited opportunity to participate in meaningful ways. Typically, 
the only opportunity to comment is when EPA makes a draft biological 
opinion available during a 30-day comment period. The biological 
opinions are highly complex technical documents that can be more than 
1000 pages. This short review time is a function of the consultation 
schedule NMFS must follow that was negotiated through the courts.
    The ESA requires the Services to implement RPAs that are 
economically and technologically feasible. Unfortunately, this 
requirement is applied to the action agency which in this case is EPA, 
not the end user. Therefore, no consideration has been given to the 
economic consequences for the RPAs to the farmer. This is especially of 
concern to states where minor crops are grown and the availability of 
alternative pesticides may be limited.
    Progress is being made. In the most recent biological opinions, 
NMFS has incorporated quantifiable targets to define what constitutes 
jeopardy. This allows states and stakeholders to clearly understand 
what level of protection is needed to protect listed species. Also, 
NMFS Regional Administrator Will Stelle has organized several meetings 
to facilitate communication between NMFS, EPA, United States Department 
of Agriculture, states and stakeholders. Unfortunately, litigation on 
pesticide consultation for ESA continues. The Center for Biological 
Diversity filed suit against EPA for failure to consult on more than 
300 pesticides and 214 species in January of this year. This lawsuit 
will affect pesticide registrations in all states except Alaska. Court-
directed consultation between EPA, United States Fish and Wildlife 
Service and NMFS on such a scale is unsustainable given existing 
federal resources and processes. Moreover, specific court decisions to 
date have delivered unmanageable workloads for agencies and untenable 
timelines, but no workable solution to the problem of ESA consultation.
    The current pesticide registration/consultation process limits the 
ESA's effectiveness at protecting listed species by delaying 
development and implementation of rational, effective measures for 
pesticide use. Because of numerous procedural barriers and minimal 
opportunity for states and stakeholders to engage decision-makers, the 
process also fails to provide reasonable registration of pesticides. 
Solutions to these challenges are available. For example, mediation of 
the strained relationship between the Services and EPA can establish a 
collaborative and transparent consultation process for pesticide 
registration. In addition, past and future biological opinions will 
benefit from incorporation of both current available data and 
assessment of the economic feasibility of proposed RPAs and Reasonable 
and Prudent Measures (RPMs). Similar benefits can be achieved through 
clear integration of consultation into EPA's registration process. 
Integration can prevent future litigation based on the ``failure to 
consult'' premise and improve opportunity for public participation.
    The facts are clear: the consultation process is poised to collapse 
under the weight of proposed litigation limiting effective species 
protection, and adversely impacting the nation's agricultural 
community. Ultimately, resolution will be achieved only when states, 
policy makers and interested parties join the call to improve the 
pesticide consultation process.
                                 ______
                                 
    The Chairman. Thank you very much, Mr. Secretary.
    And our last witness on this panel is Mr. Grader. Mr. 
Grader, you are recognized for five minutes.

      STATEMENT OF W.F. GRADER, JR., EXECUTIVE DIRECTOR, 
      PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS

    Mr. Grader. Thank you very much Chairman Hastings and I 
guess Chairman Lucas has gone.
    My name, for the record, is Zeke Grader. I am the Executive 
Director for the Pacific Coast Federation of Fishermen's 
Associations. We represent working men and women in the West 
Coast commercial fishing fleet. Our federation basically 
consists of thousands of small, family fishing operations. 
These are all small businesses. And I want to reiterate here 
that it tends to get forgotten is that our members are food 
producers.
    One of the interest we look out for to ensure there are 
ample fish for our members to harvest is that looking to 
eliminate the various threats to fish. We work, for example, to 
ensure fishing regulations promote sustainable fisheries and to 
prevent over fishing. We also work to ensure that our fish 
stocks are protected from non-fishing activities.
    Since earliest days of our organization in the mid-1970s, 
we have been concerned with water quality among those threats 
to our fisheries, particularly in regard to salmon that spend--
they are spawn of course in fresh water streams, spend their 
early days there in the case of coho salmon, a year there 
before going to sea and then coming back to these same streams 
to spawn again and die. And this is an area where they tend to 
be particularly vulnerable.
    We have been involved with efforts, looking the application 
of pesticides and herbicides since the 1970s. I think some of 
our earliest actions were involving in the north coast of 
California the spraying of the phenoxy herbicides over forested 
water sheds. These herbicides containing dioxygen we knew from 
science that directly affected fish populations, either from 
direct fish kills or more likely from more subtle effects, 
affecting either behavior or immunity to disease.
    As we mention in our written report that has been submitted 
to you, in 1999, we actually prepared a report looking at 
pesticides on the effects of salmon. That report called 
Diminishing Returns: Salmon Declines and Pesticides the impacts 
we found on fish are not simply direct and observable fish 
kills as I mentioned, but effects on immune systems making them 
more vulnerable to disease or predation or changes in behavior 
that can also affect their survival. And of course, it also can 
affect the feed, the small insects and other things that they 
feed on.
    On top of that is that these fish can pick up contaminates, 
which then raise into question their healthiness as far as to 
be a nutritious food choice. Now it is mentioned here the 
nutritional aspects of pears and apples, and that is certainly 
true. However, I think people also have to realize that salmon 
is constantly regarded, wild salmon, in just about everything 
you look at. I think most recently from the USDA is probably 
among the top ten foods that people can eat. They are very rich 
in Omega 3 fatty acids and everything from helping with 
depression to heart disease to improving intelligence.
    What we found in preparing our report is that at the time, 
in the 1999s, is that there were some 54 known pesticides that 
were being found in various salmon-bearing streams and rivers 
at levels that were well above those considered safe. The U.S. 
Geological Survey, for example, detected measurable 
concentrations of pesticides within many sampled areas in West 
Coast streams. Some pesticides were detected at levels of up to 
1000 times the maximum concentrations allowed by EPA's own 
aquatic protection standards.
    To me, that clearly indicated we had a dysfunctional 
system. We also found that EPA was not consulting under the 
FIFRA process under the ESA as required. As a result, we did go 
to court in 2001. That was mentioned here. We saw innumerable 
delays, but we do now have, in fact, a process that appears to 
start looking like it may, in fact, work, although it has gone 
in fits and starts over the past decade. But we would certainly 
urge that you give that an opportunity to work, work closely 
with the agencies, make sure they are communicating and that 
every effort is made to streamline the process without it any 
way weakening protections for the animals. But we would 
certainly urge you to, like I say, work closely, not hold 
everything up until NAS study comes out. But basically would 
look at the NAS for further guidance, but now to try to move 
ahead with implementation. Thank you.
    [The prepared statement of Mr. Grader follows:]

      Statement of W.F. ``Zeke'' Grader, Jr., Executive Director, 
          Pacific Coast Federation of Fishermen's Associations

    Good morning, Chairmen and members of the Natural Resources and 
Agriculture Committees. My name is Zeke Grader. I am the Executive 
Director of the Pacific Coast Federation of Fishermen's Associations 
(PCFFA), a major U.S. fishing industry trade association centered on 
the U.S. west coast. PCFFA is in turn made up of 14 different member 
fishing and local port associations, collectively representing working 
men and women in the West Coast commercial fishing fleet. Our members 
harvest and provide healthy and nutritious seafood for America's table, 
and are the drivers of a billion-dollar west coast commercial fishing 
industry employing thousands of U.S. workers.
    We wish to thank the two Committees for the opportunity to provide 
comments today on behalf of the West Coast fishing industry on the 
importance of crafting stronger pesticide controls to keep these highly 
toxic chemicals out of America's rivers, and in particular out of fish 
such as salmon which are an important part of the human food chain.
    The current EPA pesticide protection rules have obviously failed. 
EPA-regulated pesticides are now found nearly everywhere in west coast 
rivers and are killing salmon, destroying salmon jobs, and endangering 
public health.
    As you know, salmon are ``anadromous,'' which means they begin 
their lives in inland fresh water streams, then move to the sea for 
several years, and they then return (typically three to five years 
later) from the ocean as adult spawners to lay their eggs in inland 
freshwater streams all along the U.S. west coast and Canada. There the 
young salmon must remain, some for months--in the case of coho salmon, 
one year--until they grow large enough to migrate to the ocean where 
they'll spend their adult lives. During all this time in fresh water, 
young salmon are very vulnerable to the dozens of agricultural 
chemicals (mostly pesticides) that can pollute West Coast rivers.
    The great Pacific salmon runs have always been the work horse of 
commercial fishing on the West Coast. Now, however, many of these 
salmon stocks are overwhelmed by multiple stressors in our coastal 
rivers that 17 once-major salmon runs are so imperiled they are 
protected under the federal Endangered Species Act (ESA) as threatened 
or in danger of extinction. Another 11 stocks of closely related 
anadromous steelhead are also ESA-listed in these same river systems, 
and for the same reasons. For a current list of the west coast salmon 
and steelhead ESA listings and listing decisions see: www.nwr.noaa.gov/
ESA-Salmon-Listings/upload/snapshot-7-09.pdf.
    Steelhead, which is closely related to salmon, while not a 
commercially fished (ecepting tribal fishing) species supports a 
vibrant inland recreational fishing industry that in turn supports 
thousands of additional sportfishing jobs and hundreds sportfishing 
businesses, large and small. This, too, is a billion dollar industry 
bringing jobs and dollars to many rural communities. Salmon and 
steelhead are collectively referred to as ``salmonids.''
    When salmon or steelhead stocks are ESA-listed, they cannot be 
harvested, and fishermen must make every effort to avoid them, which 
has included closing whole fisheries. This has been done all over the 
West Coast to protect these weakest stocks--yet still these ESA-listed 
stocks remain at very low numbers, some still heading toward 
extinction. Increased mortality from in-river pesticides, scientists 
now tell us, is one of the reasons these stocks are not recovering.
    PCFFA identified the growing threat that water-borne pesticides 
present to west coast salmon runs in 1999, with the publication of 
Diminishing Returns: Salmon Declines and Pesticides (Feb. 1999), 
published by the Oregon Pesticide Education Network. That report is 
available on a PCFFA web site at: www.pcffa.org/salpest.htm. That 
report is, however, merely an overview of a representative sample of 
literally hundreds of peer-reviewed scientific reports and studies at 
the time (there are many more now) that clearly show how even extremely 
low but persistent concentrations of pesticides in rivers can greatly 
increase salmon mortality.
    When that report came out, we were also shocked to find out that 
the US Environmental Protection Agency (EPA), unlike any other federal 
agency, had never consulted on the impacts of these EPA-registered 
pesticides on ESA-listed salmonids under ESA Sec. 7 as federal agencies 
are required by law to do for federal actions. The EPA had simply 
refused to do so for more than 25 years, since the ESA was first 
adopted into law in 1976.
    As a result, in 2001 PCFFA joined as co-Plaintiff in the lawsuit, 
Washington Toxics Coalition, et al. v. Dept. of Interior (457 F. Supp. 
2d 1158) (W.D. Wash. 2006) that subsequently required EPA to consult 
under Sec. 7 of the ESA, for the first time ever, on the impacts of 54 
different commonly used but highly toxic pesticides on ESA-listed 
salmon and steelhead. PCFFA brought this suit to protect West Coast 
fishing industry jobs--and seafood consumers--from these chemicals in 
the river harming the nation's valuable salmon runs. The end result of 
that suit, after yet more litigation (see ATTACHMENT B), was the 
current set of Pesticide Biological Opinions (Pesticide BiOps) that are 
now coming out of NMFS on a Court-ordered schedule.
    This initial list target list of 54 pesticides and herbicides was 
not chosen at random. All of these 54 chemicals have been found at 
levels higher than maximum health standards in rivers on the west 
coast, they are among the most broad-spectrum and toxic of all 
pesticides, and therefore the ones most likely to impact salmon and 
steelhead generally, and so these were selected for first analysis. 
Some have been eliminated from the list in the analysis, which now 
consists of 37 chemicals. These are the worst of the worst for salmon. 
These are the chemicals now going through ESA Sec. 7 Consultation.
    So far these Pesticide BiOps have concluded that, on the basis of 
the best available science, current EPA-endorsed pesticide practices 
for those chemicals analyzed will likely drive these already ESA-
protected salmon runs towards extinction. This also means that these 
chemicals negatively impact other, far more abundant, salmon runs in 
these same rivers. And since these very same chemicals are also serious 
human health hazards, the fact that all these chemicals are being found 
in West Coast rivers that supply water to millions of people is also a 
serious--but as yet unaddressed--human health hazard.
    It should be noted as well that PCFFA obtained an Injunction in 
that case against the further EPA-authorized uses of these 54 target 
pesticides within buffer zones comparable to those later required in 
the Biological Opinions, at least until that Sec. 7 Consultation could 
be completed. That Injunction, and those required buffer zones, have 
now been in effect since January 22, 2004.
GETTING BACK TO FUNDAMENTALS
    In all the technical details of ESA Sec. 7 consultations and 
discussions (driven by chemical industry concerns about regulation), 
including some of the past discussions on this issue before these two 
Committees, many have lost track of some basic facts, including the 
following:
    These Chemicals Are Poisons. It is often forgotten that 
agricultural pesticides and herbicides are poisons for both fish and 
humans. They are designed to be poisons and, while they may be useful 
in agriculture when applied at the correct time, place and dosage, once 
these chemicals escape into the nation's rivers, they are nothing more 
than broad-spectrum, highly toxic poisons to both fish and humans.
    These Chemicals Are Already In Our Rivers and Current EPA 
Protections Have Failed to Prevent It: Again, the original list of 54 
different pesticides and herbicides we chose to sue on in Washington 
Toxics Coalition, et al. were not chosen at random. Not only are these 
chemicals all highly toxic to fish, each has been found by US 
Geological Service (USGS), many in multiple locations, in West Coast 
rivers at levels that far exceed National Academy of Sciences (NAS) 
recommended aquatic protection standards.
    Among the many findings of these various USGS monitoring studies is 
that the highly toxic pesticides carbaryl, carbofuran, diazinon, 
chlorpyrifos and malathion were all found at levels well above NAS's 
Aquatic Life Criteria (ALC) standards, often multiple times and in 
multiple basins. For instance, diazinon was found at 400 times the 
ALC's maximums in the San Joaquin-Tulare river systems. Malathion was 
found at levels 45 times higher than ALC again in the San-Joaquin-
Tulare systems. Malathion was also found at 30 times higher than ALC in 
the Willamette River in Oregon.
    According to these USGS studies, these chemicals were also found 
frequently (dependent on basin): carbaryl up to 67% of the time; 
carbofuran up to 29% of the time; chlorpyrifos up to 52%; diazinon up 
to 100%; and malathion up to 33% of the widely scattered samples taken 
in several basins.
    Among the many USGS government monitoring studies that have found 
these pesticides to be pervasive in river systems throughout the west 
coast are the following:
USGS Circular 1216 (Puget Sound, 1996-98) http://wa.water.usgs.gov/
        pubs/misc/summary.rpt.html
USGS Circular 1161 (Willamette, 1991-95) http://pubs.usgs.gov/circ/
        circ1161
USGS Circular 1160 (Upper Snake, 1992-95) http://pubs.usgs.gov/circ/
        circ1160
USGS Circular 1159 (San Joaquin-Tulare, 1992-95)
  http://pubs.usgs.gov/circ/circ1159
USGS Circular 1144 (Columbia 1992-95) http://pubs.usgs.gov/circ/
        circ1144
    In short, these nasty toxic pesticides are found in major salmon-
bearing river systems nearly everywhere on the west coast. What all 
this means, bluntly, is that whatever protective rules the EPA now has 
in place are simply not working to keep these chemicals out of the 
nation's waterways. The committees were right to describe this as 
federal regulatory dysfunction.
    If these commonly used chemicals are already in salmon-bearing 
rivers they are also in urban public water systems supplied from those 
same rivers. This represents a serious and growing--but largely 
unaddressed--public health hazard. All are highly toxic to humans, many 
are bioaccumulative in human tissue, several are human endocrine 
disrupters, and most are virulent carcinogens or mutagens or both. Few 
of them can be effectively filtered out from these public water systems 
by any currently available water filtering systems, most are very hard 
to detect and few are currently even tested for.
    If, under EPA labeling controls now in effect, these 54 and many 
other agricultural pesticides and herbicides are getting into the 
nation's rivers, it is clear and convincing proof that current EPA 
restrictions against use of these chemicals in and around waterways is 
insufficient to keep them out. This simple fact is ignored in this 
debate by the chemical industry. If EPA rules under FIFRA are, as they 
claim, ``already strong enough,'' then where did these chemicals in our 
rivers come from?
    These Chemicals Kill ESA-Listed and Non-listed Salmonids Alike: The 
54 commonly used pesticides and herbicides originally chosen as our 
target list for ESA Sec. 7 consultations in Washington Toxics 
Coalition, et al. case are all well known in the scientific literature 
as highly toxic, broad spectrum chemicals which can be fatal to fish. 
The studies cited for salmon mortalities in Diminishing Returns: Salmon 
Declines and Pesticides (Feb. 1999), represent only the tip of the 
iceberg of the massive number of studies in the scientific literature 
that indicate these chemicals are toxic to salmonids. Once these 
pesticides and other agricultural chemicals are in our nation's rivers, 
they not only kill ESA-listed salmon runs, but all other salmon runs as 
well.
    Most of these 54 target chemicals have been in use for many years, 
some since shortly after World War II. Most are very broad spectrum 
toxins which kill both target pests and many beneficial species. Some 
(in particular carbofuran and azinphosmethyl) are now being phased out 
by EPA because of increasing pest resistance and widespread ecological 
toxic side effects. Most of these 54 chemicals are being replaced by 
second and third generation pesticides that are far less toxic and far 
more selective.
    Once These Chemicals Are In Our Rivers, Society As a Whole Pays a 
High Price: When these poisons are allowed to enter the nation's 
waterways and kill salmon this depletes the salmon resource that 
supports thousands of salmon related jobs along the Pacific Coast, and 
deprives our nation's consumers of one of America's healthiest foods 
sources. Moreover, it instigates further ESA listings as otherwise 
healthy salmon stocks (and other fish and wildlife species) are in 
their turn damaged to the point where they also need federal 
protection.
    In short, allowing these agricultural poisons to continue to enter 
the nation's rivers COSTS JOBS, jeopardizes human health and DAMAGES 
THE NATIONAL ECONOMY. These economic losses are now clearly 
overwhelming any economic benefits these chemicals might provide from 
their selective use in agriculture.
    These chemical pollutants are an increasing public health hazard, 
including some which are known as human ``endocrine disputers'' which 
can affect human growth and development, especially in infants and 
children, even at extremely low concentrations. According to EPA, the 
insecticide cararyl likely causes cancer in humans. Three of the 
pesticides under analysis (chlorpyrifos, malathion and diazinon) have 
been linked with attention deficit hyperactivity disorder in children. 
Many other studies show the dangers of other chemicals on this list to 
human health.
    There Are Simple and Cost Effective Ways To Keep Most of These 
Chemicals Out of Our Rivers To Begin With. It is far more expense to 
society as a whole to put poisons in rivers and then have to deal with 
the consequences to human health and fisheries, plus the added costs of 
filtering such poisons out of public water supplies (when that can be 
done at all), than to keep them out of our rivers in the first place. 
Fortunately, there are very simple ways to keep these chemicals away 
from rivers--the use of river bank ``buffer zones'' and substitution 
with less toxic alternatives, as discussed below.
CHEMICAL INDUSTRY COMPLAINTS ON THE CONSULTATION PROCESS ARE UNFOUNDED
    The chemical industry and pesticide manufacturer's group CropLife 
has been particularly vocal about what it characterizes as the 
``serious flaws'' in the Sec. 7 consultation process between NMFS and 
EPA. On January 26, 2011, eighteen members of the U.S. House of 
Representatives even asked the Council on Environmental Quality (CEQ) 
to halt or delay further federal evaluations of the effects of toxic 
pesticides on threatened and endangered west coast salmon and steelhead 
on the basis of these unverified--and largely false--CropLife 
complaints. A copy of our 28 March 2011 responses to CEQ debunking 
these claims is enclosed as ATTACHMENT A to this testimony.
    Briefly, the major misstatements (and sometimes outright scare-
tactic fabrications) CropLife and other agricultural interests have 
made to this Congress include the following:
          Claim: Riparian buffer zones required under the RPA's 
        in the NMFS Biological Opinions will eliminate farming over 
        large portions of current agricultural lands.
    Response: This is nonsense. The buffer zones required in the 
Pesticide BiOps only restrict the use of a very few of some of the 
oldest, most toxic and increasingly obsolete pesticides right near 
rivers and streams. In nearly every instance when one of these highly 
toxic pesticides would otherwise be used for pest control, there are 
less toxic, and far more specific pest control alternatives. More are 
being developed. Agriculture can continue as usual using other newer 
and far more specific pesticides more wisely. And within these buffer 
zone, hand applications (as opposed to aerial spays which drift 
considerably and thus require much larger buffers) are nearly always an 
option.
    To give but one example of many of the alternatives available, in 
California, Oregon and Washington codling moth causes significant 
economic loses to apple growers. Four of the pesticides with Pesticide 
BiOps (carbaryl, chlorpyrifos, diazinon and malathion) are registered 
for use on this pest. However, most experts in the field now recommend 
more targeted and less toxic products and practices. The University of 
California-Davis Integrated Pest Management Guidelines include 
biological, cultural and options such as spinosad, vegetable oil 
sprays, kaolin clay products, and pheromones to disrupt codling moth 
mating. Replacing these older pesticides with better cultivation 
practices and less toxic alternatives is now common in the agricultural 
industry.
    It should also be noted that the ongoing Injunction in the 
Washington Toxics Coalition case, which mandated no-spray buffer zones 
for all the 54 chemicals subject to the Pesticide BiOp consultation 
until consultation is completed, has been in effect since January 22, 
2004--nearly seven years! Farmers have almost always been able both to 
find less toxic and more targeted chemical substitutes and to adapt in 
various ways. Very little productive acreage has been ``eliminated'' as 
originally foretold.
    Buffer zones are common practice. EPA already requires various 
types of waterway ``buffer zone'' restrictions for many of these 
registered pesticides, as part of its FIFRA label restrictions. The 
common use of such ``buffer zones'' was noted by the Court in the 
Washington Toxics Coalition case, as follows:
        ``The evidence submitted. . ... demonstrates that pesticide-
        application buffer zones are a common, simple, and effective 
        strategy to avoid jeopardy to threatened and endangered 
        salmonids.. . .Neither EPA or CropLife dispute those basic 
        principles. . .. [C]urrent EPA effects determinations and 
        expert recommendations hinge on the employment of buffer zones, 
        such as those outlined by California county bulletins, to 
        prevent jeopardy to threatened and endangered salmonids. . .. 
        Likewise, CropLife acknowledges the efficacy of buffer zones 
        imposed by the most recent Reregistration Eligibility Decisions 
        for several pesticides. . ... Finally, the Court notes that the 
        20-yard and 100-yard buffer zones requested by plaintiffs are 
        generally consistent with those recommended by EPA.'' 
        (Washington Toxics Coalition, Order 8 August 2003, pgs. 16-18, 
        emphasis added)
    The restricted pesticides evaluated so far in the Pesticide BiOps 
are generally outdated, broad-spectrum killers. Many are being phased 
out because they kill both pest species as well as beneficial species, 
thus often undercutting their effectiveness. Many of these EPA-approved 
pesticides are also linked to cancer, endocrine disruption and other 
serious health effects in humans, particularly children, the elderly, 
farm families and farmworkers. Those that are endocrine disruptors 
interfere with both fish and human hormones, causing developmental, 
neurological, reproductive and immune system problems in wildlife and 
humans alike.
          Claim: The current ESA process is completely 
        duplicative of EPA's FIFRA analysis, under which EPA already 
        considers the effects of pesticides on fish and wildlife.
    Response: The ESA consultation process as currently conducted in no 
way duplicates EPA's current FIFRA pesticide evaluation processes 
because the ESA analysis asks very different questions. To the 
contrary, because EPA's ecological risk assessment process fails (in 
all the ways discussed below) to adequately consider and protect the 
nation's most threatened and endangered wildlife, the ESA Sec. 7 
consultation process is an indispensible check on EPA's inadequate 
species risk assessments. Moreover, EPA's own internal ESA effects 
determinations also show that its FIFRA process to register pesticides 
is flawed because the EPA's own ``effects determinations'' have nearly 
all concluded that pesticides that EPA has already approved under FIFRA 
are nonetheless likely to adversely affect listed species--see for 
instance www.epa.gov/espp/litstatus/effects/redleg-frog/index.html.
    Furthermore, both NMFS (and for non-salmonids, US Fish & Wildlife 
Service) have considerably more experience with evaluating impacts on 
fish and wildlife than does EPA. That is, in fact, part of the 
Services' statutory job description.
    In its Pesticide BiOps, NMFS scientists have concluded that much of 
the methodology used by EPA is simply not sufficient to ascertain the 
impacts of these chemicals on ESA-listed salmonids. In its own 
toxicology studies, the EPA does not account for several effects on 
fish that occur in the real world in our streams, including: (a) 
impacts from chronic but low-concentration exposures that are not 
immediately lethal but which add to stress on the fish in various ways 
that can lead to increased mortality; (b) long-term behavioral impacts 
that may adversely affect how the fish survives in the long run, or 
make the fish more vulnerable to other sources of mortality such as 
predators or disease; (c) synergistic effects from the exposure to 
multiple pesticides simultaneously, even at low concentrations, as we 
would see in any typical river. NMFS does take these important, but 
much more subtle, real world impacts into account. The EPA does not.
    Further,, EPA does not conduct most of its own research, but relies 
almost completely on data and studies provided to it by the chemical 
industry it regulates, few of which are ever peer-reviewed. Fewer still 
of these industry studies on these pesticides actually studied impacts 
on salmonids. Unlike EPA, however, NMFS has the facilities to conduct 
its own research and has done so specifically with regard to impacts of 
these chemicals on salmonids as part of the scientific background 
information needed for these pesticide BiOps.
    As the courts have found, EPA's ecological risk assessment process 
under FIFRA simply fails to address the impacts of these chemicals on 
species:
        Washington Toxics Coalition v. Dep't of Interior, 457 F. Supp. 
        2d 1158, 1184 (W.D. Wash. 2006) (concluding that ``EPA's risk 
        assessment process is not only less protective than Service 
        determinations, there is overwhelming evidence on the record 
        that . . . EPA risk assessments . . . would actually result in 
        harm to listed species.''); id. at 1193 (holding EPA's risk 
        assessment process contains ``substantial flaws . . . [and is] 
        highly likely (if not certain) to result in an overall under-
        protection of listed species.'')
    More bluntly, the pesticide industry disputes the science only 
because it is science they cannot control, and that they do not want to 
hear. But these scientific decisions, many of which affect industries 
such as ours, as well as the health and welfare of millions of 
Americans, must be based on the ``best available science,'' not on the 
``most convenient (or profitable) conclusions.'' Ignoring the 
increasingly large body of science showing the serious collateral 
impacts of certain highly toxic and broad-spectrum pesticides in the 
ecosystem is not a sound policy basis for curtailing this impacts 
analysis under Sec. 7 of the Endangered Species Act (ESA). Nor is it a 
sound basis for any kind of deregulation in this important public 
health arena.
    While there are clearly scientific disputes between EPA and the 
Services over methodology that need to be ironed out, these scientific 
disputes have already been referred by EPA to the National Academy of 
Sciences' National Research Council for a thorough analysis and 
resolution. Congress should let this process naturally unfold. 
Resolving scientific disputes is something that scientists should do, 
not politicians. Scientific disputes of this nature are not uncommon, 
and effective steps are being made now to resolve them. Nothing in the 
process to date justifies more delay--especially since the burden of 
delay could jeopardize industry jobs and the public's health.
          Claim: The ESA Sec. 7 consultation process allows no 
        input from the chemical industry or affected users, and does 
        not consider the real-life circumstances in which these 
        chemicals are used.
    Response: This is an easy one to dispose of. Far from being a 
``closed process,'' since the draft of the first biological opinion 
(``BiOp'') evaluating the effects of the organophosphates chlorpyrifos, 
diazinon, and malathion was released in 2008, EPA has released each 
draft BiOp specifically to solicit and consider input from pesticide 
manufacturers, local, state, and tribal governments, and the general 
public. It has published guidance outlining the procedures for input 
and established a docket number (EPA-HQ-OPP-2008-0654) for this 
specific purpose, available on the Internet.
    To date, EPA has received over 300 written comments on the first 
three BiOps alone, including from each of the manufacturers, many 
pesticide users, various state agencies, and concerned members of the 
public. In addition, for each BiOp prepared, EPA and NMFS have held 
extensive meetings with pesticide manufacturers, and have received 
large amounts of information and material from those registrants. NMFS 
has documented this input and detailed how it considered the 
information it received in each of the BiOps issued thus far. For more 
details see the Letter to CEQ dated 28 March, 2011, enclosed as 
ATTACHMENT A.
    As to considering ``real world conditions,'' this is exactly what 
NMFS does when it considers not only long-term behavioral impacts but 
also synergistic impacts of multiple pesticides working together, as 
they certainly do in real world streams. EPA only considers effects of 
one pesticide at a time in isolation, and then only for the so-called 
``active'' ingredient, excluding the impacts of so-called ``inert 
ingredients'' in pesticide formations, some of which are actually more 
toxic to fish than the registered ingredient. Thus it is EPA, not NMFS, 
which is not considering the ``real world impacts'' of these chemicals 
in the natural environment. This is one reason EPA's FIFRA toxic risk 
analysis method has been criticized by both scientists and the courts.
          Claim: If these chemicals cannot be used for mosquito 
        control, there will be outbreaks of west Nile virus and other 
        serious diseases which will jeopardize human life.
    Response: First off, none of the most common chemicals used for 
mosquito abatement are currently under ESA scrutiny.
    Secondly, urgent public health or land management matters such as 
mosquito control or control of invasive species are not likely to be 
affected by these Pesticide BiOps. Special exemptions (such as ESA 
incidental take permits) can and have been carved out for these rare, 
and usually one-time, hazard abatement techniques. Use of integrated 
pest management techniques is also increasingly replacing the heavy-
handed use of these kinds of highly toxic chemicals, and additionally 
many modern alternatives to these chemicals that are far most specific 
to mosquitos are being developed or already available.
    Third, in our January 22, 2004, Injunction in the Washington Toxics 
Coalition case, which enjoined the use of many of these same chemicals 
within certain buffer zones, contained the following specific 
exclusions:
        ``Based on EPA's effects determinations, the stipulation of 
        plaintiffs, or the evidence in the record. . .. the Court 
        determines that EPA's authorization of the following Pesticide 
        uses specified below is not vacated:
        1.  Public Health Vector Control Programs: Use of Pesticides 
        for public health vector control as administered by public 
        health entities.
        2.  Noxious Weed Programs: Use of the Pesticides for control of 
        state-designated noxious weeks as administered by public 
        entities, when such control program implements the following 
        safeguards that NMFS routinely requires for such programs. . .. 
        . .'' (Washington Toxics Coalition, Order of Jan. 22, 2005)
IT IS FAILURE TO PROTECT ESA-LISTED SPECIES FROM PESTICIDES THAT 
        PROMOTES GOVERNMENT WASTE AND INCREASES PRIVATE SECTOR ESA 
        RESTRICTIONS
    In light of the theme of this Hearing, which is on job costs from 
``Federal regulatory dysfunction'' it should be obvious that it is past 
EPA failure to prevent harmful pesticides from getting into salmon-
bearing rivers, harming ESA-listed and non-listed salmonids, and 
threatening public health that wastes government money and jeopardize 
jobs, including:
        (A)  Further restricting the west coast commercial and 
        recreational salmon fishing industries, jeopardizing the very 
        resources upon with they both depend, and destabilizing tens of 
        thousands of family wage jobs in coastal and inland salmon-
        dependent communities;
        (B)  Making it that much hard to recover, and thus to 
        eventually de-list, those species that are already ESA 
        protected, essentially helping to keep them on the ESA list 
        forever.
        (C)  Driving currently abundant salmonid species into a 
        downward population spiral, creating more ESA listings in the 
        future.
        (D)  Many hundreds of millions of dollars in combined federal, 
        state and local landowner funds have now gone toward protecting 
        endangered salmonids. Poisoning these species with federally-
        allowed pesticide practices that pollute rivers works at 
        complete cross purposes with all existing salmon recovery 
        efforts.
        (E)  As more ESA-listed fish decline from pesticides, this just 
        increases in severity the restrictions necessary on local 
        landowners. Many Central Valley farmers, for instance, have 
        pointed to ``water pollution'' as a main cause of depletion of 
        San Francisco Delta salmon stocks (not to mention Delta smelt). 
        But the more these fish stocks are depleted by pesticide 
        pollution, the more irrigation water will be necessary to take 
        from agriculture to help offset that other damage, e.g., 
        diluting the pollution. It is thus just as much in the Central 
        Valley farmers best interests to make sure these pesticides do 
        not jeopardize ESA-listed fish in the San Francisco Bay-Delta 
        Estuary as it is for fishermen. This is also true elsewhere in 
        rivers throughout the West Coast, in most of which pesticides 
        are serious problems for ESA-listed fish.
        (F)  Causing serious public health concerns as toxic pesticides 
        are increasingly found in drinking water and begin 
        significantly entering the human food chain.
IN SUMMARY
    In short, it makes no economic sense to be poisoning the nation's 
rivers and salmon runs which support tens of thousands of jobs, simply 
to keep using certain highly toxic pesticides, most of which could be 
easily replaced with much less toxic alternatives.
    The current Sec. 7 ESA consultations and their resulting Pesticide 
BiOps help us craft ways to keep these chemicals out of our nation's 
rivers and away from urban water supplies in the first place. It is 
always far more cost effective to prevent a problem in the first place 
than to have to clean it up later--if it can be cleaned up at all.
    And while conducting these decades-overdue ESA Sec. 7 consultations 
may burden the resources of EPA and the Services temporarily, the long-
term solution is to provide the agencies the additional resources they 
need to speed up the process. The solution is not to deny the science, 
ignore polluted rivers, devastate the nation's valuable salmon runs, 
turn a blind eye to serious human health problems, overturn the law--
and then just hope for the best!
    Mr. Chairmen, we do indeed have a dysfunctional federal regulatory 
system when it comes to regulating pesticide usage in order to protect 
food fish, jobs and human health. That was why PCFFA sued. PCFFA looks 
forward to working with you, the committees and members of Congress to 
ensure that the regulation of pesticides will, in fact, effectively 
consider and protect our nation's valuable food fish, fishing-industry 
jobs--along with protection for farm workers, and human health. Thank 
you and I'll be happy to answer any questions.

                                 #####

PCFFA APPENDIX A--Joint Letter to CEQ
 DEFENDERS OF WILDLIFE  EARTHJUSTICE  NORTHWEST 
        CENTER FOR ALTERNATIVES TO PESTICIDES  PACIFIC COAST 
        FEDERATION OF FISHERMEN'S ASSOCIATIONS  INSTITUTE FOR 
        FISHERIES RESOURCES

March 28, 2011

Nancy Sutley, Chair
Council on Environmental Quality
722 Jackson Place, N.W.
Washington, D.C. 20503

    On January 26, 2011, eighteen members of the U.S. House of 
Representatives asked the Council on Environmental Quality to halt or 
further delay federal evaluation of the effects of toxic pesticides on 
threatened and endangered West Coast salmon and steelhead. That 
request, however, is based on a misunderstanding of the science 
underlying the required protections and on an inaccurate picture of the 
process that the National Marine Fisheries Service and the 
Environmental Protection agency have followed. We write to urge CEQ to 
instead use its resources and authorities to ensure that these agencies 
can effectively complete and immediately implement the long-overdue 
measures necessary to protect West Coast salmon and steelhead from the 
harm caused by these pesticides.
    Specifically, the letter asks CEQ to intervene in the on-going 
Endangered Species Act (ESA) consultation process based on allegations 
that biological opinions have been prepared without an adequate 
opportunity for input from pesticide manufacturers and users and 
without considering the best available science on the levels of these 
chemicals found in salmon waters. Both of these contentions are 
incorrect.
    First, the letter is based on a misunderstanding of the 
consultation process as it has unfolded for the eighteen pesticides 
that have been evaluated so far. Since the draft of the first 
biological opinion (``BiOp'') evaluating the effects of the 
organophosphates chlorpyrifos, diazinon, and malathion was released in 
2008, EPA has released draft BiOps specifically to solicit and consider 
input from pesticide manufacturers, local, state, and tribal 
governments, and the general public.\1\ It has published guidance 
outlining the procedures for input and established a docket number 
(EPA-HQ-OPP-2008-0654) for this specific purpose at 
www.regulations.gov. http://www.regulations.gov/
#!docketDetail;dct=PS;rpp=10;so=ASC;sb=postedDate;po=60;D=EPA-HQ-OPP-
2008-0654.
---------------------------------------------------------------------------
    \1\ While this Organophosphate biological opinion (``OP BiOp'') 
does not represent the first consultation evaluating the effects of a 
pesticide on a listed species, it is the first of many such 
consultations since the Court confirmed EPA's obligation to consult on 
its pesticide registrations and reregistrations more than eight years 
ago. Washington Toxics Coalition v . EPA, 413 F.3d 1024 (9th Cir. 
2005). This and other recent biological opinions are the result of a 
process that began before 2002, when EPA first requested consultation 
for diazinon and bensulide. EPA's effects determinations for these and 
other pesticides required by Washington Toxics Coalition were made by 
December, 2004.
---------------------------------------------------------------------------
    To date, EPA has received over 300 comments on the first three 
BiOps alone, including from each of the manufacturers, many pesticide 
users, various state agencies, and concerned members of the public. In 
addition, for each BiOp prepared, EPA and NMFS have held extensive 
meetings with pesticide manufacturers, and have received large amounts 
of information and material from those registrants. NMFS has described 
this input and detailed how it considered the information it received 
in each of the BiOps issued thus far.\2\ The categorical statement in 
the House members' letter that EPA has not adequately consulted with 
the pesticide industry and grower interest groups cannot be squared 
with the agencies' actions, EPA's notice and request for comments on 
each of these draft BiOps, and the extensive input received. We 
continue to support EPA's effort to solicit input from all interested 
groups and individuals as it completes other consultations and believe 
that the agencies have used their existing authorities to conduct this 
process in a transparent manner that allows for input from all affected 
parties and that will quickly achieve compliance with the law.
---------------------------------------------------------------------------
    \2\ See, e.g., OP BiOp at 16-21 (detailing meetings with 
registrants and nine file boxes of information provided to EPA by 
registrants alone); Biological Opinion re: Environmental Protection 
Agency Registration of Pesticides Containing Carbaryl, Carbofuran, and 
Methomy (``Carbamate BiOp'') (Apr. 20, 2009) at 6-16; Biological 
Opinion Environmental Protection Agency Registration of Pesticides 
Containing Azinphos methyl, Bensulide, Dimethoate, Disulfoton, 
Ethoprop, Fenamiphos, Naled, Methamidophos, Methidathion, Methyl 
parathion, Phorate and Phosmet (Aug. 31, 2010) at 6-23 (discussing 
extensive meetings, comments, and information exchanges between the 
agencies and the manufacturers, and public comments).
---------------------------------------------------------------------------
    Second, as the amount of input into the process demonstrates, NMFS 
did not ``ignore'' the best available monitoring data and science 
relevant to the presence of these chemicals in salmon waters. To the 
contrary, each BiOp explicitly discusses the data relied upon, 
discloses gaps in that information, and details how NMFS dealt with any 
uncertainty. NMFS requested and analyzed the most current information 
that manufacturers, state agencies, and users were willing to provide--
including voluntary measures and growers' best practices. For example, 
NMFS relied on extensive monitoring conducted by the United States 
Geological Survey, as well as data from state agencies like the 
California Department of Pesticide Regulation.\3\ In some West Coast 
watersheds, this monitoring revealed levels of these pesticides well 
above standards set to protect aquatic life--sometimes at 
concentrations 1000 times higher than accepted levels, presenting a 
risk not only to the fish and those people who may consume them, but 
also to human populations which also use these same rivers as a source 
for urban water supplies. Moreover, because use patterns and practices 
change and because high levels of these pesticides are routinely found 
in actual water samples, NMFS also properly focused on the legal uses 
allowed by the current pesticide labels.
---------------------------------------------------------------------------
    \3\ See, e.g., OP BiOp at 242-52 (discussing water quality and 
water monitoring studies); id. at 173-75 (citing USGS National Water-
Quality Assessment Program data).
---------------------------------------------------------------------------
    NMFS comprehensively reviewed this data and all other information 
regarding the impacts of pesticides on salmon and ultimately concluded 
that current uses of these insecticides jeopardize the existence of 
these imperiled fish. It then required proven and time-tested 
protections that would help keep harmful levels of these chemicals out 
of salmon waters in the first place. Measures such as no-spray buffers, 
vegetative strips to catch run-off from fields, and limits on pesticide 
application rates during adverse weather conditions have been employed 
for years by state and federal regulators and effectively reduce the 
amount of pesticides that enter our waters.
    The highly toxic pesticides that NMFS has so far examined in 
biological opinions, and which were the subject of the Washington 
Toxics Coalition lawsuit leading to this analysis, were not chosen at 
random. These organophosphate and carbamate pesticides are some of the 
most widely used and broadest-spectrum--as well as most dangerous--
neurotoxic chemicals still used in both agricultural and/or urban 
insect control. Numerous cost-effective and less toxic alternatives to 
these pesticides already exist to meet the demand from farmers who 
often avoid the use of such heavy-handed broad-spectrum chemicals 
because they kill beneficial insects and can lead to greater pest 
problems over time.
    Rather than further delaying this already long-overdue evaluation 
of the impacts of pesticides on threatened and endangered species, we 
urge CEQ instead to help the agencies focus their efforts and resources 
to implement the long-overdue measures required to protect salmon from 
the impacts of these lethal chemicals. While there have been some 
differences of opinion between EPA and the Services over 
interpretations of some of the science, the agencies themselves can and 
should resolve these differences. It should be scientists who make such 
scientific judgments, not politicians.

Sincerely,

Patti Goldman
Vice President for Litigation
Earthjustice

Zeke Grader
Executive Director
Pacific Coast Federation of Fishermen's Associations and the
  Institute for Fisheries Resources

Kim Leval
Executive Director
Northwest Center for Alternatives to Pesticides

Jamie Rappaport Clark
Executive Vice President
Defenders of Wildlife

                                 #####

PCFFA APPENDIX B--Pesticide ESA Sec. 7 Litigation Chronology

          Pesticides and West Coast Salmon Litigation Timeline

    EPA's failure to fulfill its obligation under the Endangered 
Species Act (ESA) to protect threatened and endangered West Coast 
salmon and steelhead from toxic pesticides has unfortunately been the 
subject of extensive litigation. Fishermen, public health advocates, 
and conservation groups have been forced to repeatedly turn to the 
Courts to enforce the law, and EPA has fought them--and lost--every 
step of the way.
    By 2000, a decade after the first runs of salmon were first 
protected under the ESA, EPA had not initiated consultation with NMFS 
over the effects on salmon of its registration or registration of 
hundreds of pesticides under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA).
    Fishermen and public health and environmental advocates formally 
notified EPA in July of 2000 that they intended to sue if EPA did not 
take steps to clear this backlog. After EPA took no action, these 
groups in 2001 filed litigation in the U.S. District Court of the 
Western District of Washington. Washington Toxics Coalition v. EPA, No. 
C01-132 (W.D. Wash.).
    In 2002, the Court held that EPA violated its duty to consult under 
ESA section 7(a)(2) for at least 54 specifically identified pesticides. 
Washington Toxics Coalition v. EPA, No. C01-132C, 2002 WL 34213031 at 
*8-9 (W.D. Wash. July 2, 2002) The Court found that ``[d]espite 
competent scientific evidence addressing the effects of pesticides on 
salmonids and their habitat, EPA has failed to initiate section 7(a)(2) 
consultation with respect to its pesticide registrations.. . ..Such 
consultation is mandatory and not subject to unbridled agency 
discretion.'' The Court then ordered EPA to make effects determinations 
and initiate consultations with NMFS regarding the 54 pesticides not 
later than December, 2004. Id. at *10.
    To protect salmon during the consultation process, the Court in 
2003 enjoined EPA from authorizing uses of the pesticides within 
prescribed distances of salmon-bearing streams, and required point-of-
sale notifications regarding the dangers posed to salmon for domestic 
uses. In requiring these interim no-spray buffers around salmon-bearing 
waters, the Court found that:
        The evidence submitted--including the declarations of all 
        parties' experts, reregistration eligibility decisions, EPA 
        risk assessments, prior EPA consultations with the Fish and 
        Wildlife Service, EPA's reliance on California's county 
        bulletin buffer zones, and an EPA expert's current section 
        7(a)(2) recommendations--demonstrates that pesticide-
        application buffer zones are a common, simple, and effective 
        strategy to avoid jeopardy to threatened and endangered 
        salmonids. Plaintiffs' experts sufficiently articulate the 
        general efficacy of buffer zones in preventing the migration of 
        pesticides, via spray drift, surface runoff, or erosion, into 
        salmonid-bearing waters. Neither EPA nor Crop life dispute 
        these basic principles.
Washington Toxics Coalition v. EPA, No. C01-132C, Order (Aug. 8, 2003) 
at 16.
    After hearing from again from all parties, the Court set the 
specific buffers for specific pesticides and specific applications in a 
detailed order in January 2004. In addition to the interim buffers, the 
Court--upon agreement of the parties--carved out exceptions allowing 
these chemicals to be used where necessary for public health (such as 
mosquito control programs) and in fighting noxious weeds or invasive 
species. Washington Toxics Coalition v. EPA, No. C01-132C, Order (Jan. 
22, 2004) at 9-10.
    EPA, CropLife, and others appealed both the Court's legal ruling 
that EPA must consult and the injunction to the Ninth Circuit Court of 
Appeals. The Court affirmed all aspects of the district court's orders, 
including the injunction. Washington Toxics Coalition v. EPA, 413 F.3d 
1024, 1029 (9th Cir. 2005).
    By 2004, EPA had made effects determinations for all of the 54 
pesticides at issue in Washington Toxics and had initiated 
consultations with NMFS on 37 of those pesticides that it deemed ``may 
affect'' listed salmon species. As of 2006, NMFS had not completed any 
of the required consultations for the 37 ``may affect'' pesticides, due 
to critical flaws in EPA's risk assessment methodologies.
    In another attempt to avoid its legal obligations under the ESA, 
the government adopted a set of ``counterpart regulations'' that would 
specifically govern the ESA consultation process for pesticides. These 
regulations allowed EPA to make its own ESA determinations based on its 
flawed risk assessment process without involving the expert biologists 
at NMFS or FWS. To ensure that the consultations were based on the best 
available science and not on EPA's flawed risk assessments, fishermen, 
public health advocates and conservationists again returned to Court to 
challenge the counterpart regulations. Washington Toxics Coalition v. 
Dep't of Interior, 457 F. Supp. 2d 1158, 1193 (W.D. Wash. 2006)
    The Court reviewed the extensive record documenting flaws in EPA's 
risk assessment process--including its failure to account for sublethal 
effects, synergistic impacts, and effects of ``inert'' ingredients in 
pesticide mixtures. Id. at 1182-93. The Court agreed that ``EPA's risk 
assessment process is not only less protective than Service 
determinations, there is overwhelming evidence on the record that . . . 
EPA risk assessments . . . would actually result in harm to listed 
species.'' Id. at 1184. The Court emphasized that the Services 
therefore provided an essential check on EPA's assessments and set 
aside the challenged regulations because EPA's risk assessment process 
alone contained ``substantial flaws . . . [and was] highly likely (if 
not certain) to result in an overall under-protection of listed 
species.'' Id. at 1193. EPA did not appeal this ruling.
    In 2007, EPA and NMFS still had not completed consultation for a 
single one of the 37 pesticides covered by Washington Toxics Coalition. 
Fishermen and public health advocates therefore returned to court yet 
again to compel NMFS to complete the 37 consultations. NW Coalition for 
Alternatives to Pesticides v. NMFS, Civ. No. 07-01791 (W.D. Wash. Nov. 
5, 2007). On July 30, 2008, NMFS and the plaintiffs in that action 
entered into a settlement agreement establishing a schedule for NMFS's 
completion of consultation on all 37 pesticides by late 2012. See id., 
Stipulated Settlement Order (Dkt.# 21) (Aug. 1, 2008). That schedule 
has since been extended several times to accommodate longer comment 
periods agency workloads.
    After EPA published drafts and solicited comment and input from 
pesticide users, state agencies, and the general public- and after NMFS 
met extensively with the pesticide industry and others during the 
consultation process--NMFS issued the first two biological opinions 
covering six pesticides in November 2008 and April 2009. These two 
biological opinions found that the broad-spectrum organophosphate 
pesticides diazinon, chlorpyrifos, and malathion, and carbamate 
pesticides, carbaryl, carbofuran, and methomyl, jeopardized nearly all 
species of West Coast salmon and steelhead and destroyed or adversely 
modified their critical habitat. In the biological opinions, NMFS 
required mitigation measures that would avoid these impacts, including 
no-spray aerial and ground buffers and application restrictions during 
adverse weather. Both biological opinions required EPA to implement 
these protections within one year. As of April 2011, EPA has yet to 
implement a single one of these--or any other protective measure to 
avoid the devastating impacts of these and other toxic pesticides to 
West Coast salmon runs.
    Fishermen, public health advocates, and conservationists have been 
forced to turn to the Courts yet again in an effort to get EPA to 
fulfill its legal obligations and protect these fish. In November 2010, 
these groups challenged EPA's failure to implement salmon protections 
in these two biological opinions in U.S. District Court for the Western 
District of Washington. NCAP v. EPA, 2:10-CV-0199-TSZ (W.D. Wash.). 
Briefing in this case should begin in the summer of 2011.
                                 ______
                                 
    The Chairman. Thank you very much. And I want to thank the 
panel for their testimony.
    We are going to have some votes imminently and maybe if we 
proceed, we may be able to get through the questioning before 
the votes come. So at this time I would recognize the 
distinguished Chairman of the Agriculture Committee, Mr. Lucas, 
for five minutes.
    Mr. Lucas. Thank you, Mr. Chairman.
    Dr. Edwards, you wrote significant concerns when you served 
at EPA regarding NOAA's biological opinions for pesticides. Are 
you aware of any changes NOAA Fisheries made to the first 
biological opinion in response to any feedback that it may have 
received from the pesticide users or pesticide registrants?
    Dr. Edwards. There may have been some very minor changes, 
but there was nothing of consequence in terms of the outcome.
    Mr. Lucas. So it is fair to say then I guess I naturally 
would want to ask, and I think you confirmed that, did NOAA 
ever provide responses to public comments that you are aware 
of?
    Dr. Edwards. Not to my knowledge. No.
    Mr. Lucas. Dr. Edwards, are you aware of any and have you 
reviewed any peer-reviewed articles from scientific journals 
that have documented a causal link between currently registered 
pesticides and the decline in listed species populations and/or 
the rate of recovery?
    Dr. Edwards. No, sir.
    Mr. Lucas. Mr. Newhouse, are you comfortable that all data 
and information from California, Idaho, Oregon, and Washington 
agricultural agencies, growers groups, manufacturers of 
pesticides were factored in by NOAA prior to their finalizing 
any of these biological opinions?
    Mr. Newhouse. Mr. Chairman, that was exactly one of our 
concerns. In my letter last November to Secretary Locke I 
explained some of the concerns we have of our data that we 
have, real live data as far as our monitoring of streams in the 
State of Washington that were not taken into account. So my 
answer would have to be no I am not comfortable with that. I 
can't speak specifically to those things in other states.
    Mr. Lucas. To your knowledge, did NOAA ever consider 
reopening the biological opinion or issuing a supplemental 
opinion that factored in any new additional information or 
data?
    Mr. Newhouse. I do not have any knowledge of that. I do 
know that they did respond to my letter, saying that they did 
take our data into account, but found other data that had more 
precedence.
    Mr. Lucas. Dr. Edwards, ESA requires Federal agencies to 
use the best scientific data available as the basis for 
decisions. Knowing that the available information related to 
listed species will rarely, if ever be definitive, isn't the 
real problem between the EPA and the Services about how 
available information is used and how each office addresses 
uncertainty in its assessments? In other words, is the problem 
that the Office of Pesticide Programs assesses risks using a 
more traditional scientific method-based approach while the 
Services prefer to rely on more precautionary principle 
approach?
    Dr. Edwards. I would say that that is true, at least in my 
opinion. And part of the reason I say that is in certain cases 
the Services have actually used what we call grey literature, 
which are unpublished studies that have not been peer reviewed 
in their biological opinions and EPA would not do that.
    Mr. Lucas. Repeat that description again of what they 
occasionally use, grey literature, if you would?
    Dr. Edwards. Grey literature is literature that is not 
published nor has it been peer reviewed. It might be a poster 
presentation at a national meeting or something like that, but 
it hasn't actually gotten into a scientific journal.
    Mr. Lucas. That is fascinating, Mr. Chairman. I think my 
questions have been answered. I yield back the balance of my 
time.
    The Chairman. The gentleman yields back his time. Mr. 
Sablan is recognized for five minutes.
    Mr. Sablan. Thank you very much, Mr. Chairman. Good 
afternoon everyone.
    Mr. Grader, I have heard of the predictions for many runs 
of salmon to the Columbia River this year are less than half of 
what they were in just nine years ago. Is it true that even 
within the last two years many salmon runs have continued to 
decline or shown no improvement?
    Mr. Grader. It depends where you are looking. The Columbia 
River, for example, saw some very good runs last year. Run 
predictions are going to be less for this year. The Sacramento 
system, which I am the most familiar with, we are looking at 
some slight increases I think mostly I think because of a 
biological opinion having to do with water flows there and that 
we have those protections in place in 2008 and I think we are 
starting to see some benefits from that, although we have a 
long way to go.
    Salmon populations do fluctuate and what we have to do, 
looking is what factors are affecting the productivity. Now we 
have often been criticized, and I think Chairman Hastings knows 
this, when we have water hearings about only focusing on water 
issues. But, in fact, we look both at the quantity of water 
that is available for those fish. Fish gotta swim, as they say. 
But also the quality of that water. And so in this case we look 
at is there ample flow in stream to make sure that you protect 
the fish life, but then also what about the quality of that 
water.
    And many farmers, particularly in the Central Valley 
complain, rightfully so, that they are being asked to provide 
much flows that might otherwise be necessary to dilute 
pollution. We look carefully at what some of the sources of 
pollution are and not all of it, but much of it is from 
pesticides. We have looked at scientific data that indicate 
that these pesticides are harmful to the fish.
    Now they may not result in a direct fish kill where you go 
out and look and see a bunch of fish floating on top of the 
water. But if they are affecting your behavior, their ability 
to survive at sea it certainly has an effect on how much fish 
then are available for our harvest.
    Mr. Sablan. I come from a Pacific Island, so we don't have 
salmon. But people talk about West Coast salmon and steelheads. 
Steelhead runs are stable, but isn't it also true that these 
runs fluctuate from year to year due to various human 
activities in fresh water and in other stressors?
    Mr. Grader. All fish populations vary from year to year, as 
you know, from being from the western Pacific. We know that 
agriculture production varies from year to year, depending on 
weather conditions. Now we can't always do something about 
ocean conditions. We can't always do something about the 
weather, as much as we would like to. But we certainly can have 
some effect over the things that we do, so that all we can hope 
for as far as weather and ocean conditions are have a good 
relationship with the Almighty, I think as far as the human 
factors we can do something about those and I think it is our 
obligation to do something about those.
    Mr. Sablan. So is it also true that up to 70 percent or 
more of the returns of salmon runs are made up of fish produced 
in hatcheries rather than wild fish?
    Mr. Grader. That is absolutely correct. In some cases it is 
even higher. The reason for that is these hatcheries were 
brought in, as Chairman Hastings knows, they were brought in 
primarily to mitigate for the impacts of dams and the lost 
habitat behind those dams and those hatcheries are there to 
mitigate.
    I should say that whether they are hatchery fish or wild 
spawning fish, it really doesn't matter. When it comes to water 
quality, both of those fish are vulnerable. So if it is a 
hatchery fish, it is affected every bit as much by, say, 
pesticide applications or other water quality impairments as 
wild fish are.
    Mr. Sablan. Thank you, Mr. Grader. And Chairman, I yield 
back.
    The Chairman. I thank the gentleman for yielding back. I 
just want to point out, and I recognize myself for five 
minutes.
    In my State of Washington, we have been keeping records of 
salmon runs returning to the Columbia River. Admittedly, they 
are different stocks, but in the last several years the salmon 
runs coming back to the Columbia River have exceeded what they 
have been since we started keeping records in 1938. And there 
is an article here in the San Jose Mercury News headlined 
``Pacific Salmon Fishermen Gear Up For Strong Season.'' The 
point is, there is a lot that goes into this as the testimony 
has suggested.
    Dr. Edwards, you mentioned in your testimony when you were 
at EPA you had correspondence with NMFS. You were less than 
satisfied, my words, not your words with some of the responses. 
And you alluded to the fact that part of the reason you were 
less than enthused was because of what was excluded in the 
information in drawing conclusions.
    Could you elaborate on what was--maybe a few examples of 
what was excluded that may or may not contradict other 
information that caused you some concerns when you were with 
EPA?
    Dr. Edwards. The biological opinions did not utilize the 
most recently approved product labeling that actually included 
significant risk mitigation that had been achieved through 
EPA's reevaluation program, didn't include as we have noted 
here actual usage information from California and Washington 
State. And it also didn't include information we had provided 
on timing and location of use.
    The Chairman. I want to ask Mr. Bushue and Mr. Mathison and 
Mr. Newhouse I think you are the only three active farmers on 
the panel and you obviously use these farm chemicals for 
whatever reasons that you have. Is it fair to say because of 
the cost of these farm chemicals that as a general rule most 
farmers who obviously get their living from the land and 
therefore have a very strong interest in making sure that land 
is continuing to be productive that you use these farm 
chemicals in the most prudent way that you possible can and for 
no other reason because of the economic impact that it may or 
may not have on your operation. Mr. Bushue, I would start with 
you.
    Mr. Bushue. I think the clear answer is yes. Most of us use 
pesticides as part of an integrated pest management process. We 
do a lot of scouting, a lot of monitoring. We use them if we 
absolutely have to. As you pointed out, they are extremely 
expensive. We generally try to use what we can when we 
absolutely have to and it is all incorporated and rotational 
mechanical, biological processes. But yes it is fair to say we 
use them and we use them when we have to, but judiciously and 
safely.
    The Chairman. Mr. Mathison?
    Mr. Mathison. Our company actively farms close to 900 acres 
and we attempt to breakdown those into less that 10-acre 
blocks. And at times we will spray certain sections of the 
orchard, one or two acres, maybe the outside three rows. We do 
everything possible to limit the amount of material that we put 
in the orchard, both from a cost standpoint and also from the 
standpoint that we want to do the responsible thing to our 
orchards. My grandfather had a saying that farmers sometimes 
were excellent and some of the first environmentalists.
    The Chairman. Mr. Newhouse, I know that Mr. Mathison said 
that he is a fifth generation. I think you are close to that I 
think in the Yakima Valley too. Go ahead.
    Mr. Newhouse. Thank you, Chairman.
    You know actually we are working on number four, fourth 
generation now. I guess I would echo the comments of my farmer 
colleagues here on the panel. I can take shots at myself being 
part Dutch certainly has had an influence on my use of 
pesticides and chemicals. My goal is to use the minimum amount 
possible. And just as West indicated, not just for the cost 
factor, although that is a huge driving force, these materials 
let me tell you are expensive. Talk about sticker shock. You 
can have four, five, $600 per gallon of material or more and 
they are not things that you just throw around without 
certainly paying attention to the bottom line.
    But also as far as being stewards of the lands and the 
environment, we certainly want to use the least amount possible 
to have the minimum amount of impact on those beneficial 
insects as well as the people that we have working on our 
farms.
    The Chairman. I appreciate your response because sometimes 
the impression is given for somebody that is not from farm 
country that those chemicals are used willy nilly. And that has 
been my experience that is not the case. In fact, one of the 
first jobs I ever had was being a spotter on aerial spray and 
before the technology got much better. Thank you very much.
    I just want to remind Members that we have a vote going on 
right now and we have two other Members that want to ask 
questions. So I will recognize the gentleman from 
Massachusetts, Mr. Markey and then Mr. Thompson.
    Mr. Markey. I thank the Chair very much.
    Mr. Grader, do pesticides kill and impact both endangered 
and non-endangered species?
    Mr. Grader. The pesticides, once they are in the waterway 
are none discriminatory. They don't go out and select out an 
endangered or non-endangered salmon. They affect them both. 
Again, it depends on, and I think we heard here earlier how 
much may be sprayed in a stream where it is that the nature of 
the stream whether it is fast flowing or fairly still. Fairly 
still is what we find with coho salmon when they, over during 
the summer before they go to sea the following year.
    Mr. Markey. So salmon, which provide jobs for fishermen up 
and down the West Coast are impacted by pesticides, would you 
expect there to be restrictions like the ones your industry has 
experienced over the last three years?
    Mr. Grader. When anything affects the productivity of the 
salmon, whether it is ocean conditions such an El Nino or what 
happened with the recent combination drought, excessive pumping 
in the Bay-Delta in the better part of this decade as well as 
perhaps something like pesticides getting in the stream that 
are extremely toxic, it affects then what our seasons are and 
whether or not we are allowed to fish. So, for example, when 
there was a fish kill in the Klammath River in 2002, we had 
almost a total closure of our fisheries in 2005 and 2006.
    Mr. Markey. What are the direct and cascading economic 
impacts of closing the commercial and recreational salmon 
fisheries?
    Mr. Grader. What happens is one thing is we have 100 
percent unemployment as far as fishermen go.
    Mr. Markey. Could you say that number again?
    Mr. Grader. One hundred percent.
    Mr. Markey. One hundred percent.
    Mr. Grader. It is not 25 or 30 percent. It is 100 percent.
    Mr. Markey. How many are you talking about?
    Mr. Grader. You know the actual number of fishermen is no 
longer that great. I mean our number is in a couple of thousand 
for California and Oregon, the ones I am talking about. But 
then you get into the processing plants and the recreational 
fisheries and all that. From the last closures the studies 
indicated that we lost 23,000 jobs.
    Mr. Markey. So the USGS regularly monitors surface water 
and groundwater throughout the nation. In its most recent 
report the USGS detected measurable concentrations of 
pesticides within most sampled areas. In West Coast streams 
some pesticides were detected at levels up to 1000 times the 
maximum concentrations allowed by EPA's own aquatic protection 
standards. Are you concerned that the pesticide concentrations 
in these streams are so far beyond the protection standards?
    Mr. Grader. That is what I indicated initially in my oral 
testimony here is that we do have a dysfunctional system. We 
looked not at the process, but what was actually in the water. 
I mean that really what is telling. And the fact is, is when 
you have pesticides that are a 1000 times the level they should 
be in those streams you have a problem.
    Mr. Markey. So Mr. Grader, Malathion is a commonly used 
insecticide that can be used to control mosquitos. The label 
for this pesticide states that it is an ``will permanently 
damage automobile paint. Cars should not be sprayed. If 
accidental exposure does occur, the car should be washed 
immediately.'' So if accidental exposure is dangerous for car 
paint, do you think it would be problematic if fish and 
wildlife were exposed to it?
    Mr. Grader. It is a little bit difficult to wash them. Yes, 
obviously it would be and I mean that is the reason we are 
concerned. I tell you the truth my organization has got its 
hand full of different issues it has to deal with and I just a 
soon not have to be here wrestling with this issue if it were 
not something that were of serious concern to us.
    Mr. Markey. Thank you very much. Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman. The gentleman from 
Pennsylvania is recognized for five minutes.
    Mr. Thompson. Thank you, Mr. Chairman.
    Actually, given the votes waiting, I just have two rather 
quick questions for Dr. Edwards.
    Dr. Edwards, has pesticide use increased, decreased, or 
stayed the same over the past decade and how have pesticides 
evolved over time in terms of their safety and effectiveness?
    Dr. Edwards. EPA issued a report actually in February of 
this year where they discussed that issue exactly. And 
conventional pesticide use has declined in general over the 
past decade. But in particular, the use of organophosphate 
insecticides has declined more than 60 percent between the Year 
2000 and 2007.
    In terms of what I can tell you about newer pesticides, 
they are more specific in their mode of action. And as a result 
of that, they are generally less toxic to non-target organisms. 
But I would like to add that because of that specificity in 
mechanism of action insects and pathogens can more readily 
develop resistance to these newer chemistries. And so it is 
important that farmers have multiple options from which to 
chose.
    Mr. Thompson. And ma'am, my final question. As the former 
Director of the Office of Pesticide Programs, would you 
describe the relationship between EPA and the Services as 
strained? And if that is so, why does that occur or why is that 
occurring in your opinion?
    Dr. Edwards. I haven't worked at the agency for a year and 
a half, and so I really can't speak to the situation today. But 
when I was at the agency, yes the relationship was strained and 
I would attribute it to a couple of things. One is the 
deadlines from the lawsuits and the settlement agreements put 
everyone under a great deal of strain. And the second reason I 
would say is that it was very difficult for EPA scientists to 
understand the decisions or the recommendations that were being 
made by the Services because the science was so kind of 
mysterious I would say in terms of how the decisions were 
reached.
    Mr. Thompson. Given the votes, I yield back.
    The Chairman. The gentleman yields back?
    Mr. Thompson. Yes, Mr. Chairman.
    The Chairman. I just want to ask. You asked, all of you in 
one way or another said that we should look at legislation and 
it was very broad. It wasn't specific. So I just want to ask a 
question to all of you, and if I could just elicit a one-word 
response I would very much appreciate it.
    In all of the legislation we should be looking at there 
seems to be a commonality that is driving a lot of this 
discussion and that is the Endangered Species Act. Should this 
Congress be looking at say for lack of a better word updating 
the ESA? And we will start with you, Ms. Beehler.
    Ms. Beehler. In a one-word answer, yes.
    The Chairman. Doctor?
    Dr. Edwards. I would say yes. And in particular, I would 
look at an option to be able to implement counterpart 
regulations that would survive the courts.
    The Chairman. Yes. Very good. Mr. Mathison.
    Mr. Mathison. Yes.
    The Chairman. Secretary Newhouse?
    Mr. Newhouse. Yes, Mr. Chairman. But not to the detriment 
of endangered species.
    The Chairman. No, that is not being suggested whatsoever at 
all. Good. Mr. Grader.
    Mr. Grader. I think what we need--yes, we do as far as 
funding the agencies. We have to have funding so they can carry 
out and go ahead with ensuring that these species are 
protected.
    The Chairman. Good. I thank you for your response. We have 
a vote going on, so we are going to have to, as we say, eat and 
run.
    I want to thank all of you very much for your testimony. 
The testimony may elicit other questions. And so within the 
next ten days or so if there you receive written questions, I 
would ask you to respond back as quickly as you possibly can.
    And with that, no further business coming before the Joint 
Committee we will stand adjourned. Thank you very much.
    [Whereupon, at 1:27 p.m., the Joint Committees adjourned.]

    [Additional material submitted for the record follows:]
    [A letter to Secretary of the Interior Ken Salazar from 
Hon. Bill Flores, a Representative in Congress from the State 
of Texas, submitted for the record follows:]

[GRAPHIC] [TIFF OMITTED] T6204.024

.eps                                ------                                



    [The documents listed below have been retained in the 
Committee's official files.]
      Hobbs, Aaron, President, Responsible Industry for 
a Sound Environment, Written testimony
      Minor Crop Farmer Alliance, Letter addressed to 
Chairman Hastings and Chairman Lucas
                                ------                                

    [A map entitled ``Number of Species in CBD v. EPA (2011) 
and Percent Cultivated Crops per County'' follows:]
[GRAPHIC] [TIFF OMITTED] T6204.022


    .eps[A map entitled ``Number of Species in CBD v. EPA 
(2011) and Percent Forest Land per County'' follows:]
[GRAPHIC] [TIFF OMITTED] T6204.023

    .eps[Charts on ``California Waters Impaired by Pesticides'' 
submitted for the record by Hon. Grace F. Napolitano, a 
Representative in Congress from the State of California, 
follow:]
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    [A statement submitted for the record by Hon. David Rivera, 
a U.S. Representative in Congress from the State of Florida, 
follows:]

       Statement of The Honorable David Rivers, a Representative 
                 in Congress from the State of Florida

    Mosquito control, in South Florida especially, is not only nuisance 
control, but a control for public health purposes.
    Since 2009, South Florida has reported 95 cases of dengue fever. 
These were the first cases of dengue fever reported in Florida since 
the 1930's. Last year, there were 12 cases of human infection of West 
Nile virus in Florida.
    Mosquito control agencies are currently governed by the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA). The law mandated 
extensive testing for public health insecticides according to EPA 
guidelines prior to their registration and use. This process ensures 
that insecticides available for mosquito control do not represent 
unreasonable risk to health or the environment when used as directed.
    However, as a result of a court decision, the EPA recently 
announced that mosquito control agencies will also require National 
Pollutant Discharge Elimination System (NPDES) permit, under the Clean 
Water Act. It is estimated that the paperwork burden resulting from 
this new permitting requirement will exceed $50 million nationally.
    Given these tough budgetary times at all levels of government, I 
believe it is irresponsible to burden our mosquito control agencies to 
absorb these duplicative costs. Without additional funding streams 
available, resources to meet these new requirements will have to come 
at expense of core mosquito control health and welfare missions.
    It is absolutely unacceptable to allow duplicative ``paperwork'' to 
divert limited and essential resources from mosquito control's life-
saving work.
    I would like to ask the EPA if any special consideration should be 
given to mosquito control agencies that already meet FIFRA requirements 
from also requiring NPEDS permits? Where does FIFRA fall short in 
failing to address environmental concerns?
    What, if anything, is the EPA proposing to help mosquito control 
agencies across the country to reduce costs so that they can focus on 
their core mission to protect public health and not waste valuable 
resources complying with duplicative paperwork?
                                 ______
                                 
    [A letter submitted for the record by The Honorable 
Gregorio Kilili Camacho Sablan follows:]

May 2, 2011

The Honorable Doc Hastings
Chairman
House Committee on Natural Resources
U.S. House of Representatives
1301 Longworth House Office Building
Washington, DC 20515

The Honorable Edward J. Markey
Ranking Member
House Committee on Natural Resources
U.S. House of Representatives
1301 Longworth House Office Building
Washington, DC 20515

The Honorable Frank D. Lucas
Chairman
House Committee on Agriculture
U.S. House of Representatives
1301 Longworth House Office Building
Washington, DC 20515

The Honorable Collin C. Peterson
Ranking Member
House Committee on Agriculture
U.S. House of Representatives
1301 Longworth House Office Building
Washington, DC 20515

RE: Joint Public Hearing Entitled ``At Risk: American Jobs, 
Agriculture, Health and Species--The Costs of Federal Regulatory 
Dysfunction'' to American Jobs, Agriculture, Health and Species

Dear Chairmen Hastings and Lucas and Ranking Members Markey and 
Peterson:

    We appreciate your interest in issues related to agriculture, jobs, 
public health and endangered species protection and look forward to the 
joint hearing now scheduled for May 3. The issue of pesticide 
regulation, in particular, is drawing needed scrutiny because of the 
interplay between the Federal Insecticide, Fungicide, and Rodenticide 
Act (``IFRA''), which regulates pesticide registration and labeling, 
and the laws that protect the nation's wildlife, waters, and 
environmental health.
    Our organizations and the millions of Americans we represent 
strongly support a rigorous, scientifically based solution to this 
issue, one that fully protects America's waters, human health and 
endangered species. Unfortunately, for nearly 20 years the 
Environmental Protection Agency (``EPA'') has failed to meet its 
obligations under the Endangered Species Act to consult with the U.S. 
Fish and Wildlife Service (``FWS'') and the National Marine Fisheries 
Service (``NMFS'') on the impacts of pesticide use and registration on 
threatened and endangered species. To the extent EPA has consulted, it 
has largely failed to implement the recommendations of expert wildlife 
agencies that are necessary to protect salmon and other imperiled 
species from dangers of pesticides.
    Many EPA-approved pesticides are linked to cancer, endocrine 
disruption, developmental problems, and other serious health effects in 
humans, particularly children, the elderly, farm families and 
farmworkers. Endocrine disruptors interfere with hormones, causing 
developmental, neurological, reproductive, and immune system problems 
in wildlife and humans alike. Emerging science further indicates that 
these chemicals have transgenerational effects, so low level exposures 
today may be transmitted via epigenetic modifications that harm 
subsequent generations. Just last week, a new study presented evidence 
that exposure to organophosphate pesticides in the womb lowers I.Q.

Center for Plant Conservation
Clean Water Action
Concerned Citizens for Clean Air
Cornell Laboratory of Ornithology
Deer Creek Valley Natural Resources Conservation Association
Defenders of Wildlife
Delaware Valley Ornithological Club
Delmarva Ornithological Society
Detroit Audubon Society
Earthjustice
Endangered Habitats League
Endangered Species Coalition
Environment America
Environment for the Americas
Farmworker Justice
Friends of Dyke Marsh
Friends of Pool 9--Upper Mississippi River Refuge, Inc.
Hawk Mountain Sanctuary
Jacobs Farm/Del Cabo, Inc.
League of Conservation Voters
Lane County Audubon Society
Maine Organic Farmers and Gardeners Association
Natural Resources Defense Council
New Jersey Audubon
Northwest Center for Alternatives to Pesticides
Northwest Environmental Defense Center
Oregon Toxics Alliance
Oregon Wild
Pesticide Action Network North America
Pesticide Free Zone
Pesticide Watch
Purple Martin Conservation Association
Rogue Riverkeeper
Safer Pest Control Project
Salem Audubon Society
Salmon Protection and Restoration Network (SPAWN)
San Francisco Baykeeper
Sierra Club
Swanton Berry Farm
Tennessee Ornithological Society
The Endocrine Disrupter Exchange
The Trumpeter Swan Society
The Xerces Society for Invertebrate Conservation
Turtle Island Restoration Network
WildEarth Guardians
Wildlife Center of Virginia
Wisconsin Society for Ornithology

                                 
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