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Clean Water Act (CWA)-

Permitting of Discharges 

from Pesticide Applications

Albuquerque, NM – June 14

Boise, ID – June 16

Boston, MA – June 21

Washington, DC – June 23

Webcast – June 24

Speakers:

Allison Wiedeman - Chief, Rural Branch, Water 

Permits Division, EPA Headquarters

Jack Faulk - Project Team Leader
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Draft NPDES Pesticide Permit

Topics to be Discussed

 Purpose of Public Meeting

 Background:

 NPDES Permitting 

 2006 EPA Rule 

 Schedule

 Overview of EPA Draft PGP 

 Summary and Next Steps

 Questions and Comments
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Background

Nov. 27, 2006-Final CWA Pesticides Rule

“The application of a pesticide to waters of the United States 

consistent with all relevant requirements under FIFRA does not 

constitute the discharge of a pollutant that requires an NPDES 

permit in the following two circumstances:

1. The application of pesticides directly to waters of the US to 

control pests. Examples of such applications include applications 

to control mosquito larvae, aquatic weeds, or other pests that are 

present in waters of the US; and 

2. The application of pesticides to control pests that are present 

over waters of the US, including near such waters, where a 

portion of the pesticides will unavoidably be deposited to

waters of the US to target the pests effectively; for example 

when insecticides are aerially applied to a forest canopy where 

waters of the US may be present below the canopy or when 

pesticides are applied over or near water for control of adult 

mosquitoes or other pests.”
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Background

Challenge to 2006 Rule

 In December, 2006 petitions for review were filed in all 11 Circuit 

Courts. Petitions were consolidated in the 6th Circuit Court of Appeals. 

 On 1/7/09 the 6th Circuit vacated the CWA pesticides rule, stating 

that the rule was not a reasonable interpretation of the CWA.

 Biological pesticides – Court considered “biological materials” a 

“pollutant” under the CWA stating all biological pesticides are 

pollutants because they “undeniably alter the physical integrity of 

the waters.”

 Chemicals pesticides – Court considered “chemical wastes” 

pollutants also stating that chemical pesticides are pollutants if 

they leave a residue (or “waste”).

 On 06/08/09, the 6th Circuit granted EPA’s request and ordered a twoyear stay of the mandate until 04/09/11.
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Background

Result of Court Actions

 Bottom Line: EPA’s rule stating that NPDES 

permits are not required for pesticide applications 

applied to or over, including near waters of the 

U.S., remains in effect until April 9, 2011. 

 As of April 9, 2011, discharges into a water of the 

U.S. from pesticide applications will require 

coverage under an NPDES permit.

Note: In November 2009, industry petitioned the 

Writ of Certiorari which was denied by the 

Supreme Court
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Background: NPDES Permitting

NPDES CWA Statutory Framework

 All “point 

sources”

 “Discharging 

pollutants”

 Into “waters 

of the U.S.”

Must obtain NPDES 

permit coverage 

from EPA or an 

NPDES- authorized 

State
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AK

U.S. Territories

American 

Samoa

Guam

Johnston Atoll

Midway/Wake 

Islands

N. Mariana 

Islands

Puerto Rico

Virgin Islands

State NPDES Program Status for Pesticides

Authorized (State permits)

Unauthorized (EPA permits)

Authorized but excludes federal facilities

HI

CA

NV

AZ

OR

WA

ID

UT CO

WY

MT ND

SD

NE

KS

IA

MO

NM OK

TX

AR

LA

MN

WI

IL IN OH

MI

PA

WVVA

MS AL

TN

KY

NC

SC

GA

FL

ME VT

NH

MA

RI

CT

NY

NJ

DC

MD

DE

NPDES Program Authorizations (PGP)

Note: EPA also permits activities on 

Indian Country lands.
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Background: NPDES Permitting

State-Issued NPDES Permits

 State-issued general permits must meet all CWA requirements 

that the Federally-issued permit must meet but can be more 

stringent.

 Permits are written based on a permit writer’s best professional 

judgment.

 Judgments may differ, so how each permit satisfies the CWA 

requirement may differ in some respects.

 EPA does maintain an oversight role.

 If EPA determines that a specific state condition fails to satisfy a particular CWA 

requirement, EPA could object to that permit.

 Citizens have the right to challenge NPDES permits.

 NPDES authorized states will need to have permits issued and 

effective by April 9, 2011.
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Background: NPDES Permitting

Types of NPDES Permits – Individual

 Individual Permit

 1 application submitted 1 permit issued

 Application includes detailed information 

describing the specific discharges to be covered 

under the permit, including the nature and 

concentration of discharges
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Background: NPDES Permitting

Types of NPDES Permits - General

 General Permit (40 CFR 122.28)

 1 permit issued NOI submitted by each permittee

 Permit must identify:

 area of coverage

 sources covered

 other information

 NOI typically includes basic information on discharger, the 

type of discharges, and receiving water. 

 Federal regulations provide that in certain instances, EPA 

can cover discharges under a general permit without 

submission of an NOI [40 CFR 122.28(b)(2)(v)].
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NPDES Permittees

NPDES Program Growth

0

200,000

400,000

600,000

800,000

1,000,000

1,200,000

1/1/1980 1/1/1985 1/1/1990 1/1/1995 1/1/2000 1/1/2005 1/1/2010

Year # Permittees

Phase 1 Stormwater- 1990

Phase 2 Stormwater - 1999

Pesticides - 2011

CAFOs and Vessels -2008

Basic Program 

1990 1995 2000 2005 2010
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Schedule:

EPA Pesticide General Permit

12 mos. 5 mos. 4 mos. 45 days
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Draft Pesticide General Permit 

Permit Contents

 Scope

 Notice of Intent (NOI)

 Effluent Limits

 Technology-Based 

 Water Quality Based

 Site Monitoring 

 Pesticide Discharge Management Plan

 Corrective Action

 Recordkeeping and Annual Reporting
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Draft Pesticide General Permit 

Scope

 Coverage under the permit generally includes 

pesticide applications covered by the 2006 

Rule

 Pesticide uses covered under permit:

 Mosquito and Other Flying Insect Control

 Aquatic Weed and Algae Control

 Aquatic Nuisance Animal Control

 Forest Canopy Pest Control
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Mosquito and Other Flying Insect Pest Control
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Aquatic Weed and Algae Control 
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Aquatic Nuisance Animal Control
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Forest Canopy Pest 

Control
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Draft Pesticide General Permit 

Outside Scope

 Terrestrial applications to control pests on 

agricultural crops or forest floors

 Off target spray drift

 Activities exempt from permitting under 

the Clean Water Act:

 Irrigation Return Flow 

 Agricultural Stormwater Runoff
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Irrigation Return Flow; 

Generally Exempt by Statute
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Agricultural Stormwater; 

Generally Exempt by Statute
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Draft Pesticide General Permit 

Definition of “Near”

 EPA described “near” in the 2006 rule as: 

where it is unavoidable that a portion of 

the pesticide will be deposited to waters of 

the U.S. in order to target pests effectively

 Example: treating weeds along the bank of a 

stream

 PGP includes use patterns that EPA 

identified as meeting the “near” concept 

described above.
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Draft Pesticide General Permit

Discharges not Authorized under the PGP

 Discharges of pesticides to waterbodies 

that are impaired under CWA 303(d) for 

that pesticide or its degradates 

 Discharges to Tier 3 waterbodies

 Discharges from other pesticide uses not 

specifically eligible for coverage.
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Draft Pesticide General Permit 

Who is an Operator?

 PGP defines operator as any entity 

involved in the application of a pesticide 

that results in a discharge to waters of the 

U.S. 

 Operator must meets either or both of the 

following two criteria:

(1) The entity has control over the financing for or 

the decision to perform pesticide applications

(2) The entity has day-to day control of or performs 

activities that are necessary to ensure 

compliance with the permit
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Draft Pesticide General Permit 

Who Has to File an NOI?

 NOIs will be required for entities that know or 

reasonably should have known that they will exceed 

any of the pesticide application thresholds.

 The NOI filer, in most cases, would be the entity 

with control over financing for or the decision to 

perform pesticide applications, as opposed to the 

person performing the applications that result in a 

discharge, if different. 

 However, any contract applicator would need to file 

an NOI, if it exceeds the application threshold for 

any applications not already covered under another 

NOI.
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Draft Pesticide General Permit 

Annual Treatment Area Thresholds

PGP Part Pesticide Use Annual Threshold

Part 2.2.1 Mosquitoes and Other Flying Insect Pest Control 640 acres of treatment 

Part 2.2.2

Aquatic Weed and Algae Control

In Water 20 acres of water treatment area (1)

At Water’s Edge 20 linear miles at water’s edge (2)

Part 2.2.3

Aquatic Nuisance Animal Control

In Water 20 acres of water treatment area (1)

At Water’s Edge 20 linear miles at water’s edge (2)

Part 2.2.4 Forest Canopy Pest Control 640 acres of forest canopy

(1) Calculations should include the area of the applications made to: (1) waters of the U.S. and (2) 

conveyances with a hydrologic surface connection to waters of the U.S. at the time of pesticide 

application. For calculating annual treatment area totals, count each pesticide application activity as a 

separate activity. For example, applying pesticides twice a year to a ten acre site should be counted as

twenty acres of treatment area.

(2) Calculations should include the area of the application made at water’s edge adjacent to: (1) waters of 

the U.S. and (2) conveyances with a hydrologic surface connection to waters of the U.S. at the time of

pesticide application. For calculating annual treatment totals, count each pesticide application activity as 

a separate activity. For example, treating both sides of a ten mile ditch is equal to twenty miles of water 

treatment area. 
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Draft Pesticide General Permit 

Overview of PGP Requirements

Yes No

PGP Requirements

Exceed NOI 

Threshold?

Submit NOI

*Minimize

*Meet Water Quality Limits

Implement IPM

Develop Plan

*Monitor/Report Adverse Incidents

Submit Annual Reports

Maintain Pesticide Application Records

Minimize

Meet Water Quality Limits

Monitor/Report Adverse Incidents
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Draft Pesticide General Permit 

Technology Based Effluent Limits

 FIFRA label not a requirement of permit, but it is clear 

in the Fact Sheet that a violation of any water-quality 

related aspect of the label is a CWA violation.

 Technology requirements are Best Management 

Practices (BMPs); not numeric limits

 All permittees will minimize discharges

 Use lowest effective amount of pesticide

 Perform regular maintenance

 Calibrate, clean, and repair equipment
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Draft Pesticide General Permit 

Technology Based Effluent Limits

 Operators submitting NOIs (and therefore 

over thresholds) also are required to do 

the following:

 Identify/assess pest problem

 Assess pest management alternatives

 Follow appropriate procedures for pesticide use
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Draft Pesticide General Permit 

Water-Quality Based Effluent Limits

 The draft PGP includes a narrative water-quality 

based effluent limitation applicable to all 

operators covered under the permit.

 “Your discharge must be controlled as necessary to meet 

applicable numeric and narrative state, territory, or 

tribal water quality standards.”

 EPA expects that compliance with FIFRA plus 

compliance with permit conditions will generally 

control discharges as necessary to meet 

applicable water quality standards.
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Draft Pesticide General Permit

Monitoring

 Permit will also include monitoring for all 

permittees. 

 Visual monitoring for adverse effects during 

application and during any post application 

surveillance

 Monitoring of management practices 
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Draft Pesticide General Permit 

Pesticide Discharge Management Plan

 Operators submitting NOIs would also be required to 

prepare a Pesticide Discharge Management Plan (PDMP) for 

their pest management areas. 

 Documents how discharges will be minimized and effluent 

limitations will be met

 Developed prior to first pesticide application covered under the 

permit

 Kept up-to-date for duration of permit coverage, even if 

discharges subsequently fall below the applicable NOI 

threshold.
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Draft Pesticide General Permit 

Reporting and Recordkeeping

 Annual Reporting 

 Permittees submitting NOIs would be required to submit 

annual reports documenting pesticide application activities..

 Adverse Incident Reporting

 All permittees would be required to report adverse incidents 

which would help EPA to identify possible permit violations and 

where permit may need modification to further protect water 

quality. 

 Records 

 PDMP: Permittees submitting NOIs would be required to 

develop a Pesticide Discharge Management Plan

 Permittees submitting NOIs would be required to keep 

pesticide management records for PDMP, adverse incident 

reports, corrective action documentation, and annual reports

 Kept on-site and accessed by public through requests to EPA
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Draft Pesticide General Permit 

Additional Considerations

 Endangered Species Act Consultation

 Requires EPA to consult with the US Fish and Wildlife 

Service and the National Marine Fisheries Service to 

ensure that issuance of the PGP is not likely to 

jeopardize the continued existence of any endangered or 

threatened species or adversely affect its critical habitat.

 CWA 401 Certification

 Requires all states, territories, and tribes (with a 

Treatment as a State (TAS) designation) to certify that 

the permit is consistent with applicable water quality 

requirements. 
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Draft Pesticide General Permit 

Public Comment Documents

 Federal Register Notice

 Published in FR on June 4

 Brief description of Permit

 Specific Questions for which is EPA soliciting comment

 NPDES Pesticide General Permit

 Contains actual permit requirements

 Referenced in FR notice

 Permit Fact Sheet

 Provides rationale for permit requirements

 Referenced in FR notice
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Draft Pesticide General Permit 

Key Websites

 EPA Website (www.epa.gov/npdes/pesticides)

 All documents identified above

 Frequently asked questions

 Additional background information

 Federal Government Website 

(www.regulations.gov)

 Submit comments

 Review docket materials
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Specific Comments Requested

Number of Activities Covered

 The type, size, and number of entities that 

are applying pesticides to U.S. waters

 How many entities expect to obtain permit 

coverage?

 Who are the most frequent applicators? 

Government agencies? Public utilities? Forhire applicators? 

 What are the trends in application area size for 

specific uses?
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Specific Comments Requested

Activities Covered

 Other pesticide use patterns that should 

be covered under this permit

 Are there uses outside the framework of the 

four use patterns in which pesticides are 

necessarily and unavoidably discharged to 

waters of the U.S.? Should any such uses be 

eligible for coverage under this PGP? 
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Specific Comments Requested 

Limitations on Coverage

 Discharges to Tier 3 waters

 Should applications to outstanding resource 

waters be eligible for coverage under this PGP? 

What if the purpose of the application is to 

maintain the integrity of such waters?

 Discharges of pesticides to waters 

impaired for those pesticides or 

degradates of those pesticides

 What about applications of pesticides other 

than those causing the impairment?
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Specific Comments Requested 

Sharing of Responsibilities

 The best way to cover entities with shared 

responsibilities for meeting permit 

requirements

 How should responsibility and liability under 

the PGP be effectively divided among the 

following types of parties involved in an 

application?

 Decision-makers

 Land owners

 Applicators

 Where there are multiple decision-makers for one 

application
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Specific Comments Requested 

Notices of Intent

 The appropriateness of entities not 

submitting an NOI

 What is the appropriate subset of permittees 

to require or not require an NOI from?

 The appropriateness of the annual 

treatment area thresholds

 Do the proposed annual thresholds adequately 

separate “large scale” from “small scale” 

applications for the respective use patterns?
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Specific Comments Requested

Technology-Based Effluent Limits

 The types, sizes, and numbers of entities 

responsible for controlling pests and 

implementing IPM

 The range of IPM practices currently 

implemented by existing entities

 Burden associated with implementing IPM
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Specific Comments Requested

Water-Quality Based Effluent Limits

 How else might the WQBELs of this PGP be 

structured in order to meet applicable 

water quality standards? Is there another 

viable approach? 
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Specific Comments Requested 

Monitoring

 The appropriateness of ambient water 

quality sampling and who should be 

required to do this

 Should ambient water quality monitoring be a 

requirement in this PGP and who should have 

to do it? How would the results of such 

sampling be best interpreted? Is there a way 

to obtain ambient data without burdening 

individual applicators? 
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Specific Comments Requested

Annual Reports

 The appropriateness of the scope of 

operators required to submit annual 

reports and the type, level of detail, and 

practical utility of the information being 

requested

 Who should have to submit an annual report 

and what should they tell us? 
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Next Steps:

Key Milestones

 Public Notice of Draft Permit 

 June 4, 2010

 45 day Public Comment Period 

 June 4 – July 19, 2010

 Issuance of Final Permit – Dec 2010

 Outreach – Jan-April 2011

 Permits Required – April 10, 2011
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Outreach Schedule

Public Meeting -

Albuquerque

June 14, 2010

12:00 pm – 3:00 pm

CNM Workforce Training Center

Room 101

5600 Eagle Rock Av., NE

Albuquerque, New Mexico

Public Meeting -

Boise

June 16, 2010

9:00 am – 12:00 pm

U.S. Bureau of Reclamation

Rooms 206 & 219

11650 North Curtis Road

Boise, Idaho

Webcast June 24, 2010

1:00 pm – 3:00 pm (EST)

** Rescheduled date

www.epa.gov/npdes/training

Public Meeting -

Boston

June 21, 2010

1:00 pm – 4:00 pm

U.S. EPA Region 1

Conference Room 1529

5 Post Office Square

Boston, Massachusetts

Public Hearing –

Washington, D.C.

June 23, 2010

10:00 am – 1:00 pm

U.S. EPA Headquarters

Room 1153

1201 Constitution Ave., NW

Washington, D.C. 
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For More Information

NPDES PGP Website

For more information:

www.epa.gov/npdes/pesticides
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Questions
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Background

Definition of “Point Source”

 40 CR 122.2 defines “point source” as:

 Any discernible, confined, and discrete conveyance, 

including but not limited to:

 Any pipe, ditch, channel, tunnel, conduit, well, discrete 

fissure, container, rolling stock, concentrated animal 

feeding operation, landfill leachate collection system, 

vessel or other floating craft from which pollutants are or 

may be discharged.
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Background

Definition of “Discharge of a Pollutant”

 40 CFR 122.2 defines “discharge of a pollutant” as: 

 Any addition of any “pollutant” or combination of pollutants to 

“waters of the United States” from any “point source,” or

 Any addition of any pollutant or combination of pollutants to the 

waters of the “contiguous zone” or the ocean from any point 

source other than a vessel or other floating craft which is being 

used as a means of transportation.

 This definition includes additions of pollutants into waters of the 

United States from: surface runoff which is collected or channeled by 

man; discharges through pipes, sewers, or other conveyances owned 

by a State, municipality, or other person which do not lead to a 

treatment works; and discharges through pipes, sewers, or other 

conveyances, leading into privately owned treatment works. This term 

does not include an addition of pollutants by any “indirect discharger.”
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Background

Definition of “Waters of the United States”

40 CFR 122.2 defines “Waters of the United States” as:

 (a) All waters which are currently used, were used in the past, or may be susceptible to use in 

interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

 (b) All interstate waters, including interstate “wetlands;”

 (c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), 

mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds 

the use, degradation, or destruction of which would affect or could affect interstate or foreign 

commerce including any such waters:

 (1) Which are or could be used by interstate or foreign travelers for recreational or other purposes;

 (2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

 (3) Which are used or could be used for industrial purposes by industries in interstate commerce;

 (d) All impoundments of waters otherwise defined as waters of the United States under this definition;

 (e) Tributaries of waters identified in paragraphs (a) through (d) of this definition;

 (f) The territorial sea; and

 (g) “Wetlands” adjacent to waters (other than waters that are themselves wetlands) identified in 

paragraphs (a) through (f) of this definition.

More information about “Waters of the U.S.” can be found in EPA Guidance (and available 

in the PGP Docket) 

 “Clean Water Act Jurisdiction following the U.S. Supreme Court's Decision in Rapanos v. United States 

& Carabell v. United States” 
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Background

Discharges to “Waters of the United States”

 The term “waters of the U.S.” has been defined by EPA 

to include:

 Navigable waters

 Tributaries of navigable waters

 Interstate waters

 Intrastate lakes, rivers, and streams:

 Used by interstate travelers for recreation and other 

purposes; or

 Which are the source of fish or shellfish sold in Interstate 

commerce; or

 Which are utilized for industrial purposes by industries 

engaged in interstate commerce

 This definition has been interpreted to cover virtually all 

types of surface waters including: 

 Rivers and streams; lakes and ponds; wetlands; sloughs; 

prairie potholes; intermittent streams; territorial seas, etc.