[Congressional Record (Bound Edition), Volume 151 (2005), Part 6]
[Extensions of Remarks]
[Page 7563]
[From the U.S. Government Publishing Office, www.gpo.gov]




          PEST MANAGEMENT AND FIRE SUPPRESSION FLEXIBILITY ACT

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                       HON. C.L. ``BUTCH'' OTTER

                                of idaho

                    in the house of representatives

                        Thursday, April 21, 2005

  Mr. OTTER. Mr. Speaker, I rise today to introduce the Pest Management 
and Fire Suppression Flexibility Act. This bill codifies the 
Environmental Protection Agency's rulemaking, while affirming 
Congressional intent and the long-held positions of Republican and 
Democrat administrations with regard to the Clean Water Act and 
pesticide applications, fire suppression and other pest management 
activities. I am pleased to be joined by 28 members in introducing this 
legislation.
  Congress passed the federal Clean Water Act (CWA) in the early 1970s 
in an attempt to better account for and more closely regulate 
discharges of municipal wastes and pollutants into our nation's 
waterways from large industrial facilities.
  More than 30 years later, however, federal courts have expanded the 
scope of the CWA far beyond the original intent of Congress. Today, 
family farmers, mosquito-abatement and pest-control districts, 
irrigators, rural water districts, federal and state agencies, 
foresters, pest and lawn-care control operators and many others are 
subject to unnecessary, bureaucratic permitting requirements and 
nuisance lawsuits based on misguided interpretation of the CWA by the 
9th U.S. Circuit Court of Appeals.
  Known as the Talent and Forsgren decisions, the court ruled that 
persons applying a pesticide according to the federally approved label 
directly to or above a body of water must obtain a CWA permit prior to 
the application. The Forsgren decision also significantly narrowed a 
longstanding Environmental Protection Agency (EPA) rule exempting 
forestry activities such as pest and fire control from CWA permitting 
requirements. Similar cases are pending in other parts of the country.
  The court's viewpoint in Talent blatantly disregards the 
comprehensive pesticide registration process required by the primary 
federal pesticide statute, the Federal Insecticide, Fungicide and 
Rodenticide Act (FIFRA). Under FIFRA, the EPA reviews environmental 
effects and water quality data, and approves specific use directions 
for pesticides based on the information it has evaluated--a factor the 
district court in Talent relied heavily on in rejecting the suit. 
Failing to use a pesticide in accordance with its EPA-approved labeling 
is a violation of federal and state laws.
  EPA does not issue CWA permits solely for the direct application of a 
pesticide to target a pest that is present in or over water, nor has it 
ever stated in any general policy or guidance that a permit is required 
for such applications. EPA recently issued rulemaking specifically 
exempting pesticide applications performed according to label 
instructions from CWA permitting requirements. The action would codify 
a 30-year-old policy.
  By transferring the primacy of pesticide use from FIFRA to CWA, the 
9th Circuit has authorized attorneys representing activist groups to 
file lawsuits to bully and intimidate farmers, mosquito abatements 
districts, the U.S. Department of Agriculture and others into ceasing 
long and widely practiced activities that have been authorized by--and 
already are closely overseen by--Federal and state governments.
  While the EPA's rulemaking is a step in the right direction, many 
groups are concerned that it will not provide the necessary protection 
from activist lawsuits. The legislation I am introducing today would 
make permanent the EPA's current rulemaking related to pesticide 
applications and CWA permits as well as its 30-year-old rule exempting 
certain forestry activities. Moreover, it would provide much-needed 
protection from nuisance suits for groups that already are too heavily 
regulated.

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