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Pest Management and Fire Suppression Flexibility Act

Location: Washington, DC



* Mr. OTTER. Mr. Speaker, I rise today to introduce the Pest Management and Fire Suppression Flexibility Act. This bill codifies the Environmental Protection Agency's rulemaking, while affirming Congressional intent and the long-held positions of Republican and Democrat administrations with regard to the Clean Water Act and pesticide applications, fire suppression and other pest management activities. I am pleased to be joined by 28 members in introducing this legislation.

* Congress passed the federal Clean Water Act (CWA) in the early 1970s in an attempt to better account for and more closely regulate discharges of municipal wastes and pollutants into our nation's waterways from large industrial facilities.

* More than 30 years later, however, federal courts have expanded the scope of the CWA far beyond the original intent of Congress. Today, family farmers, mosquito-abatement and pest-control districts, irrigators, rural water districts, federal and state agencies, foresters, pest and lawn-care control operators and many others are subject to unnecessary, bureaucratic permitting requirements and nuisance lawsuits based on misguided interpretation of the CWA by the 9th U.S. Circuit Court of Appeals.

* Known as the Talent and Forsgren decisions, the court ruled that persons applying a pesticide according to the federally approved label directly to or above a body of water must obtain a CWA permit prior to the application. The Forsgren decision also significantly narrowed a longstanding Environmental Protection Agency (EPA) rule exempting forestry activities such as pest and fire control from CWA permitting requirements. Similar cases are pending in other parts of the country.

* The court's viewpoint in Talent blatantly disregards the comprehensive pesticide registration process required by the primary federal pesticide statute, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Under FIFRA, the EPA reviews environmental effects and water quality data, and approves specific use directions for pesticides based on the information it has evaluated--a factor the district court in Talent relied heavily on in rejecting the suit. Failing to use a pesticide in accordance with its EPA-approved labeling is a violation of federal and state laws.

* EPA does not issue CWA permits solely for the direct application of a pesticide to target a pest that is present in or over water, nor has it ever stated in any general policy or guidance that a permit is required for such applications. EPA recently issued rulemaking specifically exempting pesticide applications performed according to label instructions from CWA permitting requirements. The action would codify a 30-year-old policy.

* By transferring the primacy of pesticide use from FIFRA to CWA, the 9th Circuit has authorized attorneys representing activist groups to file lawsuits to bully and intimidate farmers, mosquito abatements districts, the U.S. Department of Agriculture and others into ceasing long and widely practiced activities that have been authorized by--and already are closely overseen by--Federal and state governments.

* While the EPA's rulemaking is a step in the right direction, many groups are concerned that it will not provide the necessary protection from activist lawsuits. The legislation I am introducing today would make permanent the EPA's current rulemaking related to pesticide applications and CWA permits as well as its 30-year-old rule exempting certain forestry activities. Moreover, it would provide much-needed protection from nuisance suits for groups that already are too heavily regulated.

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