z Representing the Plant Science Industry z 1156 15 th St. N.W. z Washington, D.C. 20005 z 202.296.1585 z 202.463.0474 fax z www.croplifeamerica.org March 3, 2010

Ms. Allison Wiedeman
Rural Branch Chief
Office of Water US Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

Dear Ms. Wiedeman:

At the request of EPA, CropLife America and RISE in November, 2009, provided several recommendations for Notices of Intent (NOIs) to obtain coverage under EPA’s upcoming pesticide NPDES general permit. We recommended that decisions-makers be the entity responsi ble for NOI submissions, not for-hire applicators, because of the differences in available resources and advanced knowledge. Based on that presumption, we also recommended annual treatment thresholds for NOI submission, based on conversations we had had with various affected stakeholder groups who use the products that CLA’s members manufacture and sell. This memo is intended to prov ide some justification for thresholds we

recommended. We also wish to extend our support for the provision within section 1.2.2 of the draft NPDES general permit th at EPA is now considering that exempts entities meeting the definition of small busi ness enterprises, as defined by the U.S.
Small Business Administration in 13 CRF 121.201, and including commercial ("forhire") pesticide applicators that exceed the small business threshold described above. We urge EPA to clarify this exemption from NOI submissions.

1. Mosquito control: Last November we reco mmended 250 water-acres/1000
terrestrial-acres for larvaecides/adulti cides, respectively, based on our conversations with some industry repr esentatives. We believe that typical retirement communities, golf courses, housing developments, parks or recreational areas making seasonal larvaecide or adulticide treatments would likely not exceed such NOI thresholds. However, state, county and municipal mosquito-control districts will likely fa r exceed those thresholds. Across all treatments, the average daily aerial mosquito application is 1,624 acres, 1 although many mosquito control distri cts may treat over 10,000 acres for adult mosquitoes in a single day. Even th e smallest mosquito abatement programs encompassing a few square miles will lik ely exceed the terrestrial adulticide

1 National Association of Aerial Applic ators. 2004. National Use Survey, p. 24thresholds EPA is now considering in a given year, depending on rainfall. A large district such as Collier County, FL, annually logs upwards of 2 million adulticide-treatment acres and 4,000 acre s treated with larvaecides. Clearly all mosquito control districts, large and sma ll, would vastly exceed such thresholds. Unfortunately, many of the smaller 1192 municipal/county programs with

limited resources will likely cease operations if subject to the costs and administrative burdens of NOI requir ements, leaving constituents without protection from mosquito-borne diseases in addition to the loss of on-site vector control capacity for disaster relief operations. 2 This could be partially obviated by increasing the NOI threshold to our recommended 250 water-acres/1000 terrestrial acres treated per year. Ho wever, if EPA wants to differentiate between large and small mosquito control entities, larger annual NOI thresholds and IPM requirements that are tiered to the size of the entity should be

considered.

We are also concerned that our recommended thresholds would have an adverse impact on the for-hire aerial a pplicators contracted by decision makers to apply the mosquitocide, and urge EPA to agree to our recommendation that for-hire applicators not be expected to submit NOIs. We believe such for-hire applicators could be incorporated by refe rence in the NOIs of decision makers hiring them, and would be required to comply with the terms of the general permit and the FIFRA label. Unless such a provision is accepted, a one-man company with a single aircraft may tr eat more acres in one day than the

thresholds we recommended – and would be expected to submit an NOI and complete the IPM and numerous other requ irements that accompany the NOI. Such a one-man, single-aircraft app licator may treat 30,000 to more than 100,000 acres annually for a wide range of clients, 3 and yet would rarely have the advanced knowledge for an NOI of trea tment targets or access to data on the jurisdictional waters they may encount er. Twenty-nine percent (29%) of the aerial application industry is made up of singe-aircraft organizations, where the pilot often must maintain his aircraft, mix and load a given client’s pesticides, and operate the aircraft to make the pest icide application. Returning from the application, the pilot is likely to spend the remainder of the day billing, recordkeeping, and meeting various flight requirements for the next day’s work. We believe such for-hire applicators woul d likely lack the technical expertise and find unsustainable the time and costs associated with the many compliance reports and IPM requirements that accompany NOI submission.

2. Aquatic weed and algae treatments to waters of the US: In November, 2009, we recommended NOI thresholds for pesticide treatments by decision-making entities of 250 water-acres annually; we didn’t distinguish an annual treatment
threshold recommendation for linear mile s of natural streams or rivers. These

2 Joseph Conlon, American Mosquito Control Association, personal communication

3 Andrew Moore, National Agricultural Aviation Association, personal communicationrecommendations were based on the assumption that the thresholds would be applied to decision-making entities, such as state water management districts, municipalities, and perhaps lakefront homeowner communities . As before, we
are concerned that our recommended NOI threshold not be applied to for-hire applicators, for RISE estimates that a sm all aquatic weed control company could

exceed our annual 250 water-acre thresh old recommendation wi thin just a few days. 4 Such for-hire applicators would lik ely lack the technical expertise and find unsustainable the time and costs associated with the many compliance reports and IPM requirements that accompany NOI submission. We believe such for-hire applicators could be incorporated by reference in the NOIs of decision makers hiring them, and would be requ ired to comply with the terms of the general permit and the FIFRA label.

3. Aquatic weed and algae control in man-made water conveyances : Conditions affecting aquatic weed and algae control in man-made water conveyances vary widely across the country, from Californi a to Florida, and that thousands of miles of drainage ditches and water conveyances in the US must be maintained to allow proper water flow. Water pa ssage through these for irrigation and sanitation/drinking water is maintained by a wide range of decision-making entities of various sizes, including co mmunities, water districts, reclamation districts and state agencies. These vary wi dely in size across the country. Even within California the variation is signific ant. For example, the City of Antioch, CA maintains canals totaling 20 linear mi les and serves a water district of merely 28 acres. 5 Similarly, Potter Valley, CA, and Maine Prairie, CA, maintain canals of 18 and 54 linear miles, respectively. On the other hand, South Sutter Water District, CA, maintains 146 linear mile s of canal, servin g a water district of 57,000 acres and Glenn Colusa, CA, maintains 1,065 linear miles of canal, serving 175,000 acres. In November, 2009, we recommended NOI thresholds for pesticide treatments by decision-making en tities for treatment to control aquatic weeds and algae in canals, drainage ditches and other water conveyances might be in aggregate 100 linear miles, in cluding water treatment and, where necessary, both sides of the canals. However, we urge EPA to contact representatives of organizations that make such treatments to verify NOI

thresholds that would be most a ppropriate for their industries.

4. Area-wide Pest Control – Rights of Way : For treatment to control of brush and weeds along land-based rights-of-way (p ipelines, power lines, roads, railroads, etc.) that may encounter adjacent ditches, stormwater culverts or other potential jurisdictional waters in the process, we said in November a reasonable annual NOI threshold for decision-making entities might be in aggregate 100 linear miles of right-of-way treatment. We believe this threshold would likely exclude

4 Jim Skillen, Responsible Industry for a Sound Environment (RISE), pe rsonal communication

5 Michael Blankinship, Blankinship & Associates, Inc., Agricultural & Environmental Science & Engineering, http://www.h2osci.com/aboutus.html , personal communicationsmall communities’ management of thei r rights of way for urban areas, roadsides, parks, biking trails, or othe r recreational or service areas, but not exclude the many federal, state, county or municipal agencies that maintain roadways, or public electric- or gas-pipelin e utilities that maintain rights of way, or railroads. A 100 linear mile threshold would still include a very large percentage of rights of way maintenance, for according to the National Association of Counties, there are 2,987, 371 miles of rural roads and 1,029,363 miles of urban roads, which are genera lly maintained by the 3,141 counties in the US. According to the Association of American Railroads (AAR) there are 140,490 miles of Class 1 railroads in the US operated by 7 companies. According to the DOT there are 119,093 miles of rura l interstate and 41,924 miles of urban interstate in the US, generally mainta ined by state highway departments. According to the US Department of En ergy there are 305,000 miles of interstate and intrastate pipelines for natural gas and another 200,000 miles of oil pipelines in the US. According FEMA there are 186,411 miles of high power
transmission lines in the US owned and operated by 500 companies. Our recommended 100 mile annual NOI threshold should help differentiate between small communities or private landowners, and the major managers of rights of way in the US; however we urge EPA to contact representatives of these organizations to verify NOI thresholds th at would most appropriately suit their

circumstances.

5. Area-wide Pest Control – Forests: In November, 2009, we stated that, for insect pest control in forest canopies treate d by aircraft below which jurisdictional waters may be present, a reasonable an nual threshold for NOI submission by decision makers (e.g., Weyerhaeuser, Plum Creek, US Forest Service, state forest managers) might be in aggregate 5,000 acres of treated forest. We did not make a recommendation for an annual NOI threshold for herbicide applications required for reforestation, since we were unaware of the industry’s practices. We recognize that forest owners and managers only treat a small portion of their forests in any given year, but we are unaware of those statistics. We urge EPA to contact representatives of these organizations to determine what NOI thresholds would be most appropriate for their industry.

6. Area-wide Pest Control – Fa rms, Ranches and Pastures: We have not previously made a recommendation for area-wide pest control on terrestrial areas such as farms, ranches or pastures. It is our belie f that the vast majority of terrestrial pesticide applications to farmland or ranc hland is not at all subject to the Clean Water Act. However, in the months si nce our November recommendations, we have been made aware by EPA of agriculture’s potential legal vulnerability if routine pest control applications enter di tches or any of the other conveyances or jurisdictional “waters” that can be enco untered on agricultural lands. There aremore than 442 million acres of farmland in the US 6 , most of which is treated one or more times annually with pesticides for weed, insect and/or disease control in the production of food, feed and fiber. Also receiving occasional pesticide treatments are 587 million acres of pastur e, grassland and rangeland. To the extent that such terrestrial pesticide a pplications could be subject to the Clean Water Act, and EPA expects to cover su ch contingencies with its pesticide NPDES general permit, we believe that reasonable NOI thresholds would be 100 linear miles annually of ditches or ot her conveyances or 250 water-acres for waters of the US – applied only to those portions of a given field or boundary where conveyances or jurisdictional wa ters might be encountered. EPA should

not consider a ‘ treated acre’ NOI threshold based on crop land treated, for unlike forest canopy applications of pesticides, on-farm pesticide applications (either by professionals or by farmers) can visua lly avoid conveyances and jurisdictional
waters because of their awareness of the farm fields, proper caution, and with the help of visual in-field markers and precision-application technologies incorporated into modern pesticide application equipment and methods.

Thank you for allowing us to contribute th e points on the NOI threshold question. It is but one of the many issues in the scope of NPDES general permit program development for aquatic pesticide applications . We look forward to contributing our thoughts on other aspects of this issue.

Sincerely,

Douglas T. Nelson General Counsel and Secretary

6 Lubowski RN, Vesterby M, Bucholtz S. Baez A, Roberts MJ. 2002. Major Uses of Land in the United States USDA, Economic Research Service. http://cta.ornl.gov/bedb/introduction/Majo r_Uses_of_Land_in_the_United_States.xls