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

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

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

JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON
NUTRITION AND HORTICULTURE,

COMMITTEE ON AGRICULTURE

AND THE

SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT,

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

FEBRUARY 16, 2011

__________

Serial No. 112-3

(Committee on Agriculture)
Serial No. 112-10

(Committee on Transportation and Infrastructure)

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

U.S. GOVERNMENT PRINTING OFFICE
64-689 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

COMMITTEE ON AGRICULTURE

FRANK D. LUCAS, Oklahoma, Chairman

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

______

Professional Staff

Nicole Scott, Staff Director

Kevin J. Kramp, Chief Counsel

Tamara Hinton, Communications Director

Robert L. Larew, Minority Staff Director

______

Subcommittee on Nutrition and Horticulture

JEAN SCHMIDT, Ohio, Chairwoman

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

Matt Perin, Subcommittee Staff Director

(ii)
?

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

JOHN L. MICA, Florida, Chairman

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

______

Professional Staff

James W. Coon, II, Staff Director

Suzanne Mullen, General Counsel

Justin Harclerode, Communications Director

Jim Zoia, Minority Staff Director

(iii)
?

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

BOB GIBBS, Ohio, Chairman

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

John Anderson, Subcommittee Staff Director

(iv)
C O N T E N T S

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

Witnesses

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

Submitted Material

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

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

----------

WEDNESDAY, FEBRUARY 16, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Figure 1. NPDES Universe with Pesticides Permittee Projection

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

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

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

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

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

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

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

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

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

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

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

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

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

Dominick V. Ninivaggi.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Submitted Statement of Aaron Hobbs, President, RISE (Responsible
Industry for a Sound Environment)'

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

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

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

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

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

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

Submitted Statement of Rodney Snyder, Chair; and Beau Greenwood, Vice
Chair, Pesticide Policy Coalition

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

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

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

``2. Statement of findings:

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

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

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

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

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

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

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

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

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

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

Communication with staff, regulators, clients, and others;

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

Development of the PDMP, and keeping it current;

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

Staff recruitment and training for PGP compliance;

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

Equipment upgrades, inspections; calibrations, preventative
maintenance;

IPM considerations, actions, recordkeeping, annual
reporting;

Monitoring, surveillance, compliance assurance;

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

Business insurance costs, possible legal costs.

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

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

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

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

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

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

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

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

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

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

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

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

______

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

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

Submitted Statement of Chemical Producers & Distributors Association
Mr. Chairmen and Members of the Committees:

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

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

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

Submitted Statement of CropLife America

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

Supplemental Material Submitted by CropLife America

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

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

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

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

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

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

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

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

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

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

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

This statement provides a brief response to Dr. Gilliom's overview
of USGS research on pesticides in streams. We welcome the opportunity
to provide any further information or assistance.
______

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[GRAPHIC] [TIFF OMITTED] T1203.003

[GRAPHIC] [TIFF OMITTED] T1203.004

[GRAPHIC] [TIFF OMITTED] T1203.005

[GRAPHIC] [TIFF OMITTED] T1203.006

[GRAPHIC] [TIFF OMITTED] T1203.007

[GRAPHIC] [TIFF OMITTED] T1203.008

[GRAPHIC] [TIFF OMITTED] T1203.009

[GRAPHIC] [TIFF OMITTED] T1203.010

[GRAPHIC] [TIFF OMITTED] T1203.011

[GRAPHIC] [TIFF OMITTED] T1203.012

[GRAPHIC] [TIFF OMITTED] T1203.013

[GRAPHIC] [TIFF OMITTED] T1203.014

[GRAPHIC] [TIFF OMITTED] T1203.015

[GRAPHIC] [TIFF OMITTED] T1203.016

[GRAPHIC] [TIFF OMITTED] T1203.017

[GRAPHIC] [TIFF OMITTED] T1203.018

[GRAPHIC] [TIFF OMITTED] T1203.019

[GRAPHIC] [TIFF OMITTED] T1203.020

[GRAPHIC] [TIFF OMITTED] T1203.021

[GRAPHIC] [TIFF OMITTED] T1203.022

[GRAPHIC] [TIFF OMITTED] T1203.023

[GRAPHIC] [TIFF OMITTED] T1203.024

[GRAPHIC] [TIFF OMITTED] T1203.025

[GRAPHIC] [TIFF OMITTED] T1203.026

[GRAPHIC] [TIFF OMITTED] T1203.027

[GRAPHIC] [TIFF OMITTED] T1203.028

[GRAPHIC] [TIFF OMITTED] T1203.029

[GRAPHIC] [TIFF OMITTED] T1203.030

[GRAPHIC] [TIFF OMITTED] T1203.031

[GRAPHIC] [TIFF OMITTED] T1203.032

[GRAPHIC] [TIFF OMITTED] T1203.033

[GRAPHIC] [TIFF OMITTED] T1203.034

[GRAPHIC] [TIFF OMITTED] T1203.035

[GRAPHIC] [TIFF OMITTED] T1203.036

[GRAPHIC] [TIFF OMITTED] T1203.037

[GRAPHIC] [TIFF OMITTED] T1203.038

[GRAPHIC] [TIFF OMITTED] T1203.039

[GRAPHIC] [TIFF OMITTED] T1203.040

[GRAPHIC] [TIFF OMITTED] T1203.041

[GRAPHIC] [TIFF OMITTED] T1203.042

[GRAPHIC] [TIFF OMITTED] T1203.043

[GRAPHIC] [TIFF OMITTED] T1203.044

[GRAPHIC] [TIFF OMITTED] T1203.045

[GRAPHIC] [TIFF OMITTED] T1203.046

[GRAPHIC] [TIFF OMITTED] T1203.047

[GRAPHIC] [TIFF OMITTED] T1203.048

[GRAPHIC] [TIFF OMITTED] T1203.049

[GRAPHIC] [TIFF OMITTED] T1203.050

[GRAPHIC] [TIFF OMITTED] T1203.051

[GRAPHIC] [TIFF OMITTED] T1203.052

[GRAPHIC] [TIFF OMITTED] T1203.053

[GRAPHIC] [TIFF OMITTED] T1203.054

[GRAPHIC] [TIFF OMITTED] T1203.055

[GRAPHIC] [TIFF OMITTED] T1203.056

[GRAPHIC] [TIFF OMITTED] T1203.057

[GRAPHIC] [TIFF OMITTED] T1203.058

[GRAPHIC] [TIFF OMITTED] T1203.059

[GRAPHIC] [TIFF OMITTED] T1203.060

[GRAPHIC] [TIFF OMITTED] T1203.061

[GRAPHIC] [TIFF OMITTED] T1203.062

[GRAPHIC] [TIFF OMITTED] T1203.063

[GRAPHIC] [TIFF OMITTED] T1203.064

[GRAPHIC] [TIFF OMITTED] T1203.065

[GRAPHIC] [TIFF OMITTED] T1203.066

[GRAPHIC] [TIFF OMITTED] T1203.067

[GRAPHIC] [TIFF OMITTED] T1203.068

[GRAPHIC] [TIFF OMITTED] T1203.069

[GRAPHIC] [TIFF OMITTED] T1203.070

[GRAPHIC] [TIFF OMITTED] T1203.071

[GRAPHIC] [TIFF OMITTED] T1203.072

[GRAPHIC] [TIFF OMITTED] T1203.073

[GRAPHIC] [TIFF OMITTED] T1203.074

[GRAPHIC] [TIFF OMITTED] T1203.075

[GRAPHIC] [TIFF OMITTED] T1203.076

[GRAPHIC] [TIFF OMITTED] T1203.077

[GRAPHIC] [TIFF OMITTED] T1203.078

[GRAPHIC] [TIFF OMITTED] T1203.079

[GRAPHIC] [TIFF OMITTED] T1203.080

[GRAPHIC] [TIFF OMITTED] T1203.081

[GRAPHIC] [TIFF OMITTED] T1203.082

[GRAPHIC] [TIFF OMITTED] T1203.083

[GRAPHIC] [TIFF OMITTED] T1203.084

[GRAPHIC] [TIFF OMITTED] T1203.085

[GRAPHIC] [TIFF OMITTED] T1203.086

[GRAPHIC] [TIFF OMITTED] T1203.087

[GRAPHIC] [TIFF OMITTED] T1203.088

[GRAPHIC] [TIFF OMITTED] T1203.089

[GRAPHIC] [TIFF OMITTED] T1203.090

[GRAPHIC] [TIFF OMITTED] T1203.091

[GRAPHIC] [TIFF OMITTED] T1203.092

[GRAPHIC] [TIFF OMITTED] T1203.093

[GRAPHIC] [TIFF OMITTED] T1203.094

[GRAPHIC] [TIFF OMITTED] T1203.095

[GRAPHIC] [TIFF OMITTED] T1203.096

[GRAPHIC] [TIFF OMITTED] T1203.097

[GRAPHIC] [TIFF OMITTED] T1203.098

[GRAPHIC] [TIFF OMITTED] T1203.099

[GRAPHIC] [TIFF OMITTED] T1203.100

[GRAPHIC] [TIFF OMITTED] T1203.101

[GRAPHIC] [TIFF OMITTED] T1203.102

[GRAPHIC] [TIFF OMITTED] T1203.103

[GRAPHIC] [TIFF OMITTED] T1203.104

[GRAPHIC] [TIFF OMITTED] T1203.105

[GRAPHIC] [TIFF OMITTED] T1203.106

[GRAPHIC] [TIFF OMITTED] T1203.107

[GRAPHIC] [TIFF OMITTED] T1203.108

[GRAPHIC] [TIFF OMITTED] T1203.109

[GRAPHIC] [TIFF OMITTED] T1203.110

[GRAPHIC] [TIFF OMITTED] T1203.111

[GRAPHIC] [TIFF OMITTED] T1203.112

[GRAPHIC] [TIFF OMITTED] T1203.113

[GRAPHIC] [TIFF OMITTED] T1203.114

[GRAPHIC] [TIFF OMITTED] T1203.115

[GRAPHIC] [TIFF OMITTED] T1203.116

[GRAPHIC] [TIFF OMITTED] T1203.117

[GRAPHIC] [TIFF OMITTED] T1203.118

[GRAPHIC] [TIFF OMITTED] T1203.119

[GRAPHIC] [TIFF OMITTED] T1203.120

[GRAPHIC] [TIFF OMITTED] T1203.121

[GRAPHIC] [TIFF OMITTED] T1203.122

[GRAPHIC] [TIFF OMITTED] T1203.123

[GRAPHIC] [TIFF OMITTED] T1203.124

[GRAPHIC] [TIFF OMITTED] T1203.125

[GRAPHIC] [TIFF OMITTED] T1203.126

[GRAPHIC] [TIFF OMITTED] T1203.127

[GRAPHIC] [TIFF OMITTED] T1203.128

[GRAPHIC] [TIFF OMITTED] T1203.129

[GRAPHIC] [TIFF OMITTED] T1203.130

[GRAPHIC] [TIFF OMITTED] T1203.131

[GRAPHIC] [TIFF OMITTED] T1203.132

[GRAPHIC] [TIFF OMITTED] T1203.133

[GRAPHIC] [TIFF OMITTED] T1203.134

[GRAPHIC] [TIFF OMITTED] T1203.135

[GRAPHIC] [TIFF OMITTED] T1203.136

[GRAPHIC] [TIFF OMITTED] T1203.137

[GRAPHIC] [TIFF OMITTED] T1203.138

[GRAPHIC] [TIFF OMITTED] T1203.139

[GRAPHIC] [TIFF OMITTED] T1203.140

[GRAPHIC] [TIFF OMITTED] T1203.141

[GRAPHIC] [TIFF OMITTED] T1203.142

[GRAPHIC] [TIFF OMITTED] T1203.143

[GRAPHIC] [TIFF OMITTED] T1203.144

[GRAPHIC] [TIFF OMITTED] T1203.145

[GRAPHIC] [TIFF OMITTED] T1203.146

[GRAPHIC] [TIFF OMITTED] T1203.147

[GRAPHIC] [TIFF OMITTED] T1203.148

[GRAPHIC] [TIFF OMITTED] T1203.149

[GRAPHIC] [TIFF OMITTED] T1203.150

[GRAPHIC] [TIFF OMITTED] T1203.151

[GRAPHIC] [TIFF OMITTED] T1203.152

[GRAPHIC] [TIFF OMITTED] T1203.153

[GRAPHIC] [TIFF OMITTED] T1203.154

[GRAPHIC] [TIFF OMITTED] T1203.155

[GRAPHIC] [TIFF OMITTED] T1203.156

[GRAPHIC] [TIFF OMITTED] T1203.157

[GRAPHIC] [TIFF OMITTED] T1203.158

[GRAPHIC] [TIFF OMITTED] T1203.159

[GRAPHIC] [TIFF OMITTED] T1203.160

[GRAPHIC] [TIFF OMITTED] T1203.161

[GRAPHIC] [TIFF OMITTED] T1203.162

[GRAPHIC] [TIFF OMITTED] T1203.163

[GRAPHIC] [TIFF OMITTED] T1203.164

[GRAPHIC] [TIFF OMITTED] T1203.165

[GRAPHIC] [TIFF OMITTED] T1203.166

[GRAPHIC] [TIFF OMITTED] T1203.167

[GRAPHIC] [TIFF OMITTED] T1203.168

[GRAPHIC] [TIFF OMITTED] T1203.169

[GRAPHIC] [TIFF OMITTED] T1203.170

[GRAPHIC] [TIFF OMITTED] T1203.171

[GRAPHIC] [TIFF OMITTED] T1203.172

[GRAPHIC] [TIFF OMITTED] T1203.173

[GRAPHIC] [TIFF OMITTED] T1203.174

[GRAPHIC] [TIFF OMITTED] T1203.175

[GRAPHIC] [TIFF OMITTED] T1203.176

[GRAPHIC] [TIFF OMITTED] T1203.177

[GRAPHIC] [TIFF OMITTED] T1203.178

[GRAPHIC] [TIFF OMITTED] T1203.179

[GRAPHIC] [TIFF OMITTED] T1203.180