1 

# Clean Water Act

- 

# Permitting of Discharges from Pesticide Applications2 

# Purpose of today’s discussion  

## Provide an overview of EPA’s CWA NPDES Pesticide General Permit (PGP) for Point Source Discharges to Waters of the United States from the Application of Pesticides  

## Answer clarifying questions you may have on the PGP  

## Discuss next steps  CWA = Clean Water Act  NPDES = National Pollutant Discharge Elimination System3 

# NPDES Pesticide Permitting Topics to be Discussed  Purpose  Background:  NPDES Permitting  2006 EPA Rule  Schedule  EPA Draft PGP  Scope  Notices of Intent  Effluent Limits

 Technology- Based  Water Quality Based  Monitoring  Pesticide Discharge Management Plan  Corrective Action  Adverse Incident Documentation and Reporting  Reportable Spills and Leaks  Annual Reporting  Recordkeeping  Summary and Next Steps4 

# 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 State5 

# 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.”6 

## Example: Direct Application to Water for Aquatic Pests (“To”) – Covered by 2006 Rule7 

## Example: Forest Canopy Control (“Over”) – Covered by 2006 Rule8 

## Mosquito and Other Flying Insect Pest Control9 

## Example: Weed and Insect Control Near Water (“Near”) – Covered by 2006 Rule10 

# 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 .11 

# 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 Court12 

# Background 

# Schedule for PGP

12 mos. 8 mo. 4 mo.  

### 12 mos.

45 days13 

# 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 discharges14 

# 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.15 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 State may not be authorized for pesticides 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 GAFL ME VT NH

MA RI CT NY NJ DC MD DE 

# NPDES Program Authorizations (PGP)

Note: EPA also permits activities on all Indian Country Lands nationwide.16 

# 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, 2011.17 

# NPDES Permittees18 

# Draft Pesticide General Permit 

# Permit Contents  

## Scope  

## Notice of Intent (NOI)  

## Effluent Limits  

### Technology- Based  

### Water Quality Based  

## Monitoring  

## Pesticide Discharge Management Plan  

## Corrective Action  

## Adverse Incident Documentation and Reporting  

## Reportable Spills and Leaks  

## Annual Reporting  

## Recordkeeping19 

# 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 Control20 

# 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 Runoff21 

## Irrigation Return Flow; Generally Exempt by Statute22 

## Agricultural Stormwater; Generally Exempt by Statute23 

# 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.24 

# Draft Pesticide General Permit 

# Who Has to File an NOI?  

## NOIs will be required for entities that exceed a pesticide application threshold.  

## The NOI filer, in most cases, would be the entity responsible for deciding to conduct the pesticide applications, as opposed to the person performing the applications, if different.  

## However, any applicator would need to file an NOI, if it exceeds the application threshold for applications not already covered under another NOI.25 

# 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.26 

# Draft Pesticide General Permit 

# Overview of PGP Requirements27 

# 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 equipment28 

# 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 use29 

# 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.30 

# 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 practices31 

# 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.32 

# 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 EPA33 

# 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  

## Available on EPA website and regulations.gov34 

# Draft Pesticide General Permit 

# Public Comment Documents (cont.)  

# Permit Fact Sheet  

## Provides rationale for permit requirements  

## Referenced in FR notice  

## Available on EPA website and regulations.gov  

# Website (www.epa.gov/npdes/pesticides)  

## All documents identified above  

## Frequently asked questions  

## Additional background information35 

# Draft Pesticide General Permit 

# Questions in Federal Register Notice  

### The type, size, and number of entities that are applying pesticides to U.S. waters  

### Other pesticide use patterns that should be covered under 

### this permit  

### The appropriateness of the annual treatment area thresholds  

### The appropriateness of entities not submitting an NOI  

### The best way to cover entities with shared responsibilities 

### for meeting permit requirements36 

# Draft Pesticide General Permit 

# Questions in Federal Register Notice  

### The type, size and number of entities that are already practicing IPM  

### The appropriateness of ambient water quality sampling and 

### who should be required to do this  

### The appropriateness of a scope of operators required to submit annual reports and the type, level of detail, and practical utility of the information being requested37 

# 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, 201138 

# Public Meeting 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 17, 2010 1:00 pm – 3:00 pm (EST) 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 1301 Constitution Ave., NW Washington, D.C.39 

# For More Information 

# NPDES PGP Website

For more information: www.epa.gov/npdes/pesticides