### THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON

P. 

### O. Box C, Wann Springs, Oregon 97761 Michael 

### A. Bussell, Director Office ofWater and Watersheds United StatesEnvironmental ProtectionAgency Region 10 1200 SixthAvenue Seattle, W 

### A. 98101 Re: Final Certification under CWA section 401 for NPDES Pesticide General Pennit for pesticide applications to waters ofthe Warm Springs Indian Reservation ofOregon.

DearMr. Bussel, Please regard the attached document as the Final Certification under CWA section 401 for NPDES Pesticide General Pennit for pesticide applications to waters ofthe Wann Springs Indian Reservation ofOregon. The Water Control Board appointed by the Tribal Council ofthe Confederated Tribes ofWarm Springs Reservation ofOregon has been delegated authority to issue Section 401 Certifications under Tribal Ordinance 81. The Board asks that any pennitrequests from individuals or entities for approval of Pesticide Use on the Warm springs Indian Reservation be coordinated throughthe Tribal Environmental Office, specifically Mr. D. R. Sehgal, Manager, who can be reached at 541-553-2022.

Ifyou have any comments orconcerns regarding this Certificationplease do no hesitate to contact me. Respectfully Submitted

. \ i : i

# ~ JAN , 116/2011 Mr. Roy Spino Chainnan Water Control Board.

# Clean WaterAct §401 Certification

for the Application for Certification Pursuant to Section401 ofthe Federal Clean WaterAct CERTIFICATION Submitted by: 

### UNITED STATES ENVIRONMENTALPROTECTIONAGENCY for 2010 Draft NPDES Pesticide General Permit for pesticide applications to waters ofthe US in theWarm Springs Reservation ofOregon and Indian Country

Pursuant to 

### the applicable provisions ofCWA sections 208(e), 301,302,303,306, and 307 and with appropriate requirements ofthe Warm Springs Confederated Tribes law. 33 U.S.c. 1341(d); 40 C.F.R 124.53(e)(1) and Pursuantto Tribal Ordinances 45, 74, 80 and 81 & Tribal Code Chapters 433 and 479

### ConfederatedTribes ofWarm Springs Reservation ofOregon 

# Clean WaterAct 

# § 401 Certification

This Final Certification is issued to the Environmental ProtectionAgency for arequest for approval ofthe 2010 Draft Pesticide General Permit (PGP) for point source discharges to waters ofthe United States from the application ofPesticides authorizing the discharge under the national Discharge Elimination System. This 401 Certification applies specifically to the waters ofthe Wann Springs Reservation ofOregon. This Certification is issued in compliance with the provisions ofthe Clean WaterAct (CWA), as amended (33 U.S.c. 1251 

### etseq.), 

### any operatorofapoint source discharge ofpollutants (i.e., discharge) associated with the application ofpesticides who is eligible for permit coverage under Part 1.1 

### ofthe PGP and is located in an area identified in Appendix C ofthe PGP and lying within the Warm Springs Indian Reservation ofOregon where this permit is available, is authorized to discharge in accordance with the requirements ofthis permit. Any person orentity intending to conduct activities on the Warm Springs Reservation ofOregon must comply with the Tribal Law Order Code Chapters 433 and 479 and all appropriate Tribal Ordinances including but not limited to Ordinance 45, Ordinance 74, Ordinance 80 

### and Ordinance 81. The PGP becomes effective on [April 9, 2011] 

### and the authorization to discharge expire at midnight, [April 8,2016]. 

### Section 1: Coverage underthe PGP. The PGP covers any operatorthat meets the eligibility requirements identified in PGP Part 1.] 

### and ifso required, submits a Notice ofIntent (NOI) in accordance with PGP Part 1.2. to the EPA. An operator, defined in PGP Appendix A, generally includes both (I) the entity with control over the financing for, orthe decision to perform pesticide applications, including the ability to modify those decisions, that results in a discharge to waters ofthe Warm Springs Reservation ofOregon and (2) the entity with day-to-day operational control oforwho performs activities (e.g., the application ofpesticides) that are necessary to ensure compliance with the permit (e.g., they are authorized to direct workers to carry out activities required by the permit or perform such activities themselves). As such, more than one operator may be responsible for compliance with this permit for any single discharge from the application ofpesticides. Activities Covered. The PGP is available to operators who discharge to waters ofthe United States from the application of(1) biological pesticides or (2) chemical pesticides that leave a residue (hereinafter collectively "pesticides"). when the pesticide application is for one ofthe following pesticide use patterns:

a. Mosquito and OtherFlying InsectPest Control to control public health/nuisance and other flying insect pests that develop or are present during a portion oftheir life cycle in or above standing or flowing water. Public health/nuisance and other flying insect pests in this use category include but are not limited to mosquitoes and black flies. b. AquaticWeed and Algae Control- to control invasive or other nuisance weeds and algae in water and at water's edge, including irrigation ditches and/or irrigation canals.l'estiCi(Je Use c. Aquatic NuisanceAnimal Control-tocontrol invasive or other nuisance animals in water and at water's edge. Aquatic nuisance animals in this use category include, but are not limited to fish, lampreys, and mollusks. d. Forest Canopy Pest Control

- aerial application ofa pesticide over a forest canopy to control the popUlation ofa pest species (e.g., insect orpathogen) where to target the pests effectively a portion ofthe pesticide unavoidably will be applied over and deposited to water. Limitations on coverage Discharges to WaterQuality Impaired Waters. You are not eligible for coverage under this pennit for any discharges from a pesticide application to waters ofthe Wann Springs Reservation ifthe water is identified as impaired by that pesticide or its degradates. For purposes ofthis pennit, impaired waters are those that have been identified by EPA pursuant to Section 303(d) ofthe CWA or by the Wann Springs Tribe as not meeting applicable Tribal waterquality standards. Impaired waters for the purposes ofthis certification include both waters with EPA-approved or EPA-established Total Maximum Daily Loads (TMDLs) and waters for which EPA has not yet approved or established a TMDL. Discharges to Waters Designated asTier3 forAntidegradation Purposes. Certification for discharges from a pesticide application to waters designated by the Wann Springs Tribes or EPA as Tier 3 (Outstanding National Resource Waters) for anti-degradation purposes under 40 CFR 131.12(a)(3) and Tribal Ordinances 80 and 81 is not contemplated in this document. Discharges Currently orPreviously Covered by anotherEPAPermit are not covered by this Certification. Authorization to Discharge underthePGPPermit. To obtain authorization under this pennit, an operator must:

a. Meet the eligibility requirements identified in EPA POP and b. Meet any Tribal restrictions required by Wann Springs Tribal Ordinance 74, 80 and 81. Ifyou are an operator identified in POP Part 1.2.2, submit a complete and accurate Notice ofIntent (NOI) to EPA and the Wann Springs Tribe. Ifyou apply pesticides that result in a discharge and know or reasonably should have known thatthose activities will exceed one or more ofthe pesticide application annual (i.e., calendaryear) treatment area thresholds listed in Table I below for the "treatment area," as defined in POPAppendixA. DischargeAuthorization Date. BeginningApril 9, 2011, you must be covered under an NPDES pennit for discharges to waters ofthe United States and specifically to the waters ofthe Warm Springs Reservation as a result ofthe application ofa pesticide. Operators are authorized to discharge under this pennitconsistent with Table 2 below.
Table 1. AnnualTreatmentArea Thresholds AnnUal Threshold

.._--- ---_. Mosquitoes and Other Flying Insect Pests [640 acres oftreatment area

. - ... ....-----­**~----~----** Aquatic Weed andAlgae Control: Water 20 acres oftreatment areal 1

____**~-_** ....-------_.2 Table 1. Annual TreatmentArea Thresholds

-At Water's Edge: Aquatic Nuisance Animal Control:

# ~1:tW;:::-r;;~---· Forest Canopy Pest Control 

# .640 acres**~itreatm;nt ~re;**  -- .....**~--~** : _L........ Calculations should include the area ofthe applications made to: (I) waters ofthe Warm Springs Reservation and (2) conveyances with a hydrologic surface connection to waters ofthe Warm Springs Reservation. at the time ofpesticide application. For calculating annual treatment area totals, count each pesticide application activity as a separate activity. For example, applying pesticides twice ayear to aten acre site should be counted as twenty acres oftreatment area. Calculatjons should include the linearextent ofthe application made at water's edge adjacent to: (I)waters ofthe Warm Springs Reservation and (2) conveyances with a hydrologic surface connection to waters ofthe Warm Springs Reservation at the time ofpesticide application. For calculating annual treatment totals, count each pesticide application activity and each side ofa linear water body as a separate activity or area. For example, treating both sides ofaten mile ditch is equal to twenty miles ofwatertreatment area. 

# 1=:i:::r**:~:::a::~tarea** 

# atwater's edge> I

Operators who know or should have reasonably known, priorto commencement ofdischarge, that they will exceed an annual treatment area threshold identified in PGP Part 1.2.2 At least 10 days prior to commencement ofdischarge. No earlierthan 10 days after EPA posts on the Internet receipt ofyour complete :[' ,and accurate NO!. Approval ofproject must be obtained from the Warm Springs Tribes before commencement**~** •for that year. ofany project

. Operators who do notknow or least 10 days priorto exceeding an

### ~Original authorization terminates

### wh;~ would reasonably not know until after iannual treatment area threshold. :annual treatment area threshold is ' commencementofdischarge, that they Iexceeded. Operator is reauthorized no will exceed an annual treatment area Iearlier than 10 days after EPAposts on threshold identified in PGP Part 1.2.2 ·the Internet receipt ofyour complete forthat year. and accurate NO!. Approval ofproject must be obtained from the Warm

·Springs Tribes before commencement Iofany project. I Operators commencing discharge in laterthan 30 days after I Immediately, for activities conducted in response to a declared pest emergency 

### Icommencement ofdischarge.• :response to declared pestemergency situation as defined in Appendix A. situation. Approval ofproject must be

•obtained from the Warm Springs Tribes
·before commencement ofany project.

- -- -------, .... In the eventthat adischarge occurs priorto your submitting an NOI, you must comply with all other requirements ofthe POP immediately. Based on a review ofthe NOI EPA may delay authorization for further review, or may determine that additional technology based and/or water quality based effluent limitations are necessary, ormay deny coverage under the PGP and require submission ofan application for an individual NPDES permit as detailed in PGP Part 1.3. In this event, EPA will notify the Warm SpringsTribes oftheir decision and consult with the Tribes on any individual NPDES permit proposed to be issued for the Warm Springs Reservation.Continuation ofthis Permit. Ifthis POP is not reissued orreplaced prior to the expiration date, it will be administratively continued in accordance with 40 CFR 122.6 and remain in force and effect Terminating Coverage. To terminate permit coverage, an operator who is required to submit an NOI as identified in POP Part 1.2.2, must submit a complete and accurate Notice ofTermination to EPA and the Warm Springs Tribes. EPARequiring Coverage under an Alternative Permit. EPA may require you to apply for and/or obtain authorization to discharge under either an individual NPDES permit or an alternative NPDES general permit in accordance with 40 CFR 122.64 and 124.5. In this event, EPA will notifY the Wann Springs Tribes oftheirdecision and consult with the Tribes on any individual NPDES pennit proposed to be issued for the Warm Springs Reservation. OperatorRequesting Coverage under anAlternativePermit. Ifyou do not want to be covered by this general permit, but need permit coverage, you can apply for an individual permit. In such a case, you must submit an individual permit application in accordance with the requirements of40 CFR I22.26(c)(I)(ii), with reasons supporting the request, to EPA. In this event, EPA wil' notifY the Wann Springs Tribes of operator's decision and consult with the Tribes on any individual NPDES pennit proposed to be issued forthe Wann Springs Reservation. OtherFederal and State and TribalLaws.All applicants must complywith Warm SpringsTribes Ordinances 45, 74, 80 and 81 & Tribal Code Chapters 433 and 479. In addition, they must comply with all other applicable federal state and Tribal laws and regulations that pertain to application ofpesticides. For example, this permit does not negate the requirements under FIFRA and its implementing regulations to use registered pesticides consistent with the product's labeling. Additionally, there are other laws and regulations that may apply to certain activities that are also covered under this permit (e.g., United States Coast Ouard regulations). Federally-Listed Endangered and Threatened Species and Designated Critical Habitat. Additional Requirements to Protect Listed Species and Critical Habitat. [Procedures to assist in protecting listed species and critical habitat are currently being considered by EPA in consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 ofthe ESA. Additional discussion ofthe nature ofpermit conditions being discussed for incorporation into the final permit is provided in Part Ill.!O.F ofthe permit fact sheet.] In the event NMFS orFWS detennine that they would require additional measures to protect listed species and/orcritical habitat, EPA will notifY the Wann Springs Tribes ofthis decision and consult with the Tribes on a "government to government" basis regarding any measures proposed to be issued for the Wann Springs Reservation. Tribal Ordinance 74, the Integrated Resource Management Plan for the Warm Springs Reservation addresses the protection ofLocally Rare and Culturally significant species and all requirements ofthis plan must be followed. CompliancewithAny Pre-Existing ESAActions. Applicants must comply with all conditions and/or requirements that address discharges from activities also covered under this permit resulting from any preexisting:a. ESA Section 7 consultation that you have completed with FWS and/orNMFS, and/or b. ESA Section 10 pennit issued to you by FWS and/orNMFS. [EPA may include additional effluent limitations and/or recommendations specific toprotection of federally listed threatenedandendangeredspecies and federally-designated critical habitat basedon ongoingconsultation with FWSandNMFS. In the event NMFS orFWS determine that they would require additional measures to protect listed species and/or critical habitat, EPA will notity the Wann Springs Tribes of this decision and consult with the Tribes on a "governmentto government" basis regarding any measures proposed to be issued for the Wann Springs Reservation.

## J Section 2: Technology-Based EffluentLimitations To meet the effluent limitations in POP Part 2, operators must implement site-specific control measures that minimize discharges ofpesticides to waters ofthe U.S. The tenns "minimize" and "control measure" are defined in POPAppendixA. Minimize Pesticide Discharges to Waters oftheUnited States. All operators, regardless ofwhether they are required to submit an NOI, must minimize the discharge ofpollutants resulting from the application ofpesticides. All operators must also do the following: 

### 1. Use the lowest effective amount ofpesticide product per application and optimum frequency of pesticide applications necessary to control the target pest, consistent with reducing the potential for development ofpest resistance; 2. Perfonn regular maintenance activities to reduce leaks, spills, or other unintended discharges ofpesticides associated with the application ofpesticides covered under this pennit; and 3. Maintain pesticide application equipment in proper operating condition by adhering to any manufacturer's conditions and industry practices, and by calibrating, cleaning, and repairing such equipment on a regular basis to ensure effective pesticide application and pest control. You mustensure thatthe equipment's rate ofpesticide application is calibrated to deliver the precise quantity ofpesticide needed to achieve greatest efficacy against the target pest. Integrated PestManagement (IPM) Practices. All applicants must follow Section 2.2 ofthe POP and any additional requirements for spraying pesticides on the Warm Springs Reservation in accordance with Wann Springs Tribal ordinances 45, 74, 80 & 81 and the specific ProjectAssessment on Pesticide and herbicide use. Section 3: Water Quality-Based EffluentLimitations Discharges must be controlled as necessary to meet applicable numeric and narrative tribal water quality standards. Ifat any time applicant become aware, orTribe or EPA determines, that the discharge causes or contributes to an excursion ofapplicable water quality standards, corrective action must be taken immediately and as required in PGP Part 6. Section 4: Site Monitorine Requirements for PesticideApplicators.Applicants must monitor the amount ofpesticide applied to ensure the lowest amount is used to effectively control the pest, consistent with reducing the potential for development ofpest resistance. Applicants must monitor staffperforming regular maintenance activities and ensure that equipment is in proper operating condition to reduce the potential for leaks, spills, or other unintended discharge ofpesticides to waters of the U.S. Additionally, pesticide application activities are to be monitored to ensure thatthe application equipment is in proper operating condition by adhering to any manufacturer's conditions and industry practices, and by calibrating, cleaning, and repairing equipment on a regularbasis. 

### Visual Monitoring Requirements for all Operators. All operators covered under POP permit must conduct spotchecks in the area to and around where pesticides are applied for possible and observable adverse incidents, as defined in POPAppendixA, caused by application ofpesticides, including but not I imited to the unanticipated death or distress ofnontarget organisms and disruption ofwildlife habitat, recreational ormunicipal water use. Visual assessments ofthe application site must be performed:

a. During any post-application surveillance orefficacy check that you conduct, ifsurveillance oran efficacy check is conducted. b. During any pesticide application, when considerations for safety and feasibility allow. 

### Section 5; Pesticide Dischar&e Mana&ement Plan (fDMP) Applicants must prepare a PDMP for pest management area which must be kept up-to-date thereafter for the duration ofcoverage underthis general permit, even ifyour discharges subsequently fall below the applicable NO} threshold. The PDMP consistent with the deadline outlined in Table 3 below must be developed and submitted to EPA and the Warm Springs Tribes. Table 3. Pesticide Discharge Management Plan Deadline not required to submit an NOI.

- ­

### --r~b~h plan to Warm Springs Tribes.

_ _ i-

__ ...___..__...___ C

__ AT

..._E_O._O_R_Y.

____.._....... PDMP DEADLINE 

## ·-1 Operators who know or should have reasonably known, Prior to first pesticide application covered under this permitl prior to commencement ofdischarge, that they will exceed an annual treatment area threshold identified in PGP Part 1.2.2 for that year. Operators who do not know or would reasonably not know i Prior to exceeding an annual treatment area threshold. until after commencement ofdischarge, that they will exceed· an annual treatment area threshold identified in PGP Part 1.2.2 for that year. I Ooeraltors commencingdischarge in response to a declared 'No later than 90 days after responding to declared pest pest emergency situation as defined in PGPAppendixA that emergency situation. will cause the operatorto exceed an annual treatment area threshold.

The PDMP does not contain eftluent limitations; the limitations are contained in POP Parts 2 and 3 ofthe permit. The PDMP documents how applicant will implementthe eftluent limitations in POP Parts 2 and 3 ofthe permit, including your evaluation and selection ofcontrol measures 

### to meet those eftluent limitations and minimize discharges. Contents ofthe PDMP are described fully in the POP Section 5 and must be

### followed. Applicant wishing to spray on the Warm Springs Reservation will retain a copy ofthe final POMP and immediately make copy available to the Warm Springs Tribes. Situations Requiring Revision ofControlMeasures. Ifany ofthe following situations occur, applicant must review and, as necessary, revise the evaluation and selection ofcontrol measures to ensure that the situation is eliminated and will not be repeated in the future:

a. An unauthorized release ordischarge associated with the application ofpesticides (e.g., spill, leak, or discharge not authorized by this oranotherNPOES permit) occurs; b. Applicant become aware, or EPA concludes, that control measures are not adequate/sufficient for the discharge to meet applicable water quality standards; c. Any monitoring activities indicate that you failed to: .1Use the lowest amount ofpesticide produce per application and optimum frequency ofpesticide applications necessary to control the target pest, consistent with reducing the potential for development ofpest resistance; .2Perform regular maintenance activities to reduce leaks, spills, or other unintended discharges of pesticides associated with the application ofpesticides covered under this permit; or .3Maintain pesticide application equipment in proper operating condition by adhering to any manufacturer's conditions and industry practices, and by calibrating, cleaning, and repairing such equipment on a regular basisto ensure effective pesticide application and pest control. Applicant must ensure that the equipment's rate ofpesticide application is calibrated to deliver the precise minimum quantity ofpesticide needed to achieve greatest efficacy against the target pest. d. An inspection or evaluation ofactivities by an EPA official, or local, State, Territorial or Tribal entity, reveals that modifications to the control measures are necessary to meetthe non-numeric effluent limits in this permit, or
e. Applicant observes, for example, during visual monitoring that is required in POP Part 4.2, or are otherwise made aware of, an adverse incident, as defined in POPAppendixA. Section 6: CorrectiveAction Deadlines. IfApplicant determines that changes to control measures are necessary to eliminate any situation identified in POP Part 6.1, such changes must be made before the next pesticide application that results in a discharge ifpracticable, or ifnot, as soon as possible thereafter. Effect ofCorrectiveAction. The occurrence ofa situation identified in POP Part 6.1 may constitute a violation ofthe permit. All corrective measures described in POP part 6 must be followed. The Warm Springs Tribes must be informed immediately ofany corrective actions taken or required. Section 7: Record-keepinK andAnnual ReportinK Applicant must keep written records as required in the POP part 7. These records must be accurate and complete and sufficient to demonstrate compliance with the conditions ofthe permit. Applicant will also send copies ofall EPA required reports to the Warm Springs Tribes at the same time required by the POP. Section 8: EPAContactInformation and MailinK Addresses Notices ofIntent and Notices ofTermination must be submitted using EPA's eNOl system(www,epa.gov/npdes/eNOI). All Incident Reports under Part 6.4 must be sent within five (5) days ofyou becoming aware ofthe adverse incident to the EPA Regional offices (see Part 8.2) and to the State Lead Agency for pesticide regulation (see http://npic.orst.edu/statel.htm). All other written correspondence concerning discharges in any State, Territory, Indian Country land, or from any Federal facility covered under this permit and directed to the EPA, including individual permit applications, must be sent to the address ofthe appropriate EPA Regional Office. IfEPA notifies dischargers (either directly, by public notice, or by making information available on the Internet) ofother reporting options that become available at a later date (e.g., electronic submission), operators may take advantage ofthose options, in accordance with the instructions provided by EPA, to satisfy the reporting requirements ofthis permit. 

### EPA HeadquartersAddresses Region 10: Alaska, Idaho, Oregon (except see Region 9 for FortMcDermitt Reservation), and Washington. U.S. EPA Region 10 Office ofWater and Watersheds OWW-\30 1200 6th Avenue Suite 900 Seattle, WA 98101



### Section 9: Warm Springs Tribe Contact Information and MailingAddresses Mr. Stanley Smith, Tribal Council Chairman Confederated Tribes ofWarm Springs PO Box C, Warm Springs, OR. 97761
Mr. Roy Spino, Chairman, Water Control Board Confederated Tribes ofWarm Springs PO Box C, Warm Springs, OR. 97761
Mr. Charles Calica, Secretary Treasurer Confederated Tribes ofWarm Springs PO Box C, Warm Springs, OR. 97761.
Mr. Robert Brunoe, General Manager Branch ofnatural Resources Confederated Tribes ofWarm Springs PO Box C, Warm Springs, OR. 97761
Mr. D. R. Sehgal, Manager, Tribal Environmental Office Manager Confederated Tribes ofWarm Springs PO Box C, Warm Springs, OR. 97761