THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON 


P. O. Box C, Wann Springs, Oregon 97761 

Michael A. Bussell, Director 

Office of Water and Watersheds 

United States Environmental Protection Agency 

Region 10 

1200 Sixth Avenue 

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 of Oregon. 

Dear Mr. Bussel, 

Please regard the attached document as the Final Certification under CWA section 401 

for NPDES Pesticide General Pennit for pesticide applications to waters of the Wann 

Springs Indian Reservation ofOregon. 

The Water Control Board appointed by the Tribal Council ofthe Confederated Tribes 

ofWarm Springs Reservation of Oregon has been delegated authority to issue Section 

401 Certifications under Tribal Ordinance 81. 

The Board asks that any pennit requests from individuals or entities for approval of 

Pesticide Use on the Warm springs Indian Reservation be coordinated through the 

Tribal Environmental Office, specifically Mr. D. R. Sehgal, Manager, who can be 

reached at 541-553-2022. 

Ifyou have any comments or concerns regarding this Certification please do no 

hesitate to contact me. 

Respectfully Submitted 

. \ i 

~ : i

JAN , 116/2011 

Mr. Roy Spino 

Chainnan 

Water Control Board. 
Clean Water Act §401 Certification 

for the 


Application for Certification 


Pursuant to Section 401 ofthe 


Federal Clean Water Act 


CERTIFICATION 


Submitted by: 


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

for 

2010 Draft NPDES Pesticide General Permit 


for pesticide applications to waters of the US in the Warm Springs Reservation of Oregon 


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 

Pursuant to Tribal Ordinances 45, 74, 80 and 81 & Tribal Code Chapters 433 and 479 
Confederated Tribes of Warm Springs Reservation of Oregon 

Clean Water Act § 401 Certification 

This Final Certification is issued to the Environmental Protection Agency for a request for approval ofthe 

2010 Draft Pesticide General Permit (PGP) for point source discharges to waters of the United States from 

the application of Pesticides authorizing the discharge under the national Discharge Elimination System. 

This 401 Certification applies specifically to the waters ofthe Wann Springs Reservation of Oregon. 

This Certification is issued in compliance with the provisions of the Clean Water Act (CWA), as amended 

(33 U.S.c. 1251 et seq.), any operator of a point source discharge of pollutants (i.e., discharge) associated 

with the application of pesticides who is eligible for permit coverage under Part 1.1 of the PGP and 

is located in an area identified in Appendix C of the PGP and lying within the Warm Springs Indian 

Reservation of Oregon where this permit is available, is authorized to discharge in accordance with the 

requirements of this permit. Any person or entity intending to conduct activities on the Warm Springs 

Reservation of Oregon 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 under the PGP. 

The PGP covers any operator that meets the eligibility requirements identified in PGP Part 1.] and if so 

required, submits a Notice of Intent (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, or the 

decision to perform pesticide applications, including the ability to modify those decisions, that results in a 

discharge to waters of the Warm Springs Reservation of Oregon and (2) the entity with day-to-day 

operational control of or who performs activities (e.g., the application of pesticides) 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 of pesticides. 

Activities Covered. 

The PGP is available to operators who discharge to waters of the 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 of the following pesticide use patterns: 

a. Mosquito and Other Flying Insect Pest Control to control public health/nuisance and other flying 

insect pests that develop or are present during a portion of their 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. Aquatic Weed 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 Nuisance Animal Control-to control 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 of a pesticide over a forest canopy to control the 

popUlation of a pest species (e.g., insect or pathogen) where to target the pests effectively a portion ofthe 

pesticide unavoidably will be applied over and deposited to water. 

Limitations on coverage 

Discharges to Water Quality Impaired Waters. You are not eligible for coverage under this pennit for 

any discharges from a pesticide application to waters of the Wann Springs Reservation if the water is 

identified as impaired by that pesticide or its degradates. For purposes of this pennit, impaired waters are 

those that have been identified by EPA pursuant to Section 303(d) of the CWA or by the Wann Springs 

Tribe as not meeting applicable Tribal water quality 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 as Tier 3 for Antidegradation 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 or Previously Covered by another EPA Permit are not covered by this 

Certification. 

Authorization to Discharge under the PGP Permit. 

To obtain authorization under this penn it, 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. 


If you are an operator identified in POP Part 1.2.2, submit a complete and accurate Notice of Intent (NO I) to 


EPA and the Wann Springs Tribe. 


If you apply pesticides that result in a discharge and know or reasonably should have known that those 

activities will exceed one or more ofthe pesticide application annual (i.e., calendar year) treatment area 

thresholds listed in Table I below for the "treatment area," as defined in POP Appendix A. 

Discharge Authorization Date. Beginning April 9, 2011, you must be covered under an NPDES pennit for 

discharges to waters of the United States and specifically to the waters ofthe Warm Springs Reservation as 

a result of the application ofa pesticide. Operators are authorized to discharge under this pennit consistent 

with Table 2 below. 

Table 1. Annual Treatment Area Thresholds 

AnnUal Threshold .._--- ---_. 

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

Aquatic Weed and Algae Control: 

Water 20 acres of treatment areal 1 ____ 

~-_....-------_. 
2 

Table 1. Annual Treatment Area 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 of the applications made to: (I) waters ofthe Warm Springs Reservation and (2) 

conveyances with a hydrologic surface connection to waters of the Warm Springs Reservation. 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. 

Calculatjons should include the linear extent of the application made at water's edge adjacent to: (I) waters of the 

Warm Springs Reservation and (2) conveyances with a hydrologic surface connection to waters of the Warm Springs 

Reservation at the time of pesticide 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 ofa ten mile 

ditch is equal to twenty miles of water treatment area. 

1=:i:::r:~:::a::~tarea at water's edge> I 

Operators who know or should have 

reasonably known, prior to 

commencement of discharge, that they 

will exceed an annual treatment area 

threshold identified in PGP Part 1.2.2 

At least 10 days prior to 

commencement of discharge. 

No earlier than 10 days after EPA posts 

on the Internet receipt of your complete :[' 

,and accurate NO!. Approval of project 

must be obtained from the Warm 

Springs Tribes before commencement ~ 

•for that year. of any project . 

Operators who do not know or least 10 days prior to exceeding an ~ Original authorization terminates wh;~ 

would reasonably not know until after iannual treatment area threshold. :annual treatment area threshold is ' 

commencement of discharge, that they Iexceeded. Operator is reauthorized no 

will exceed an annual treatment area Iearlier than 10 days after EPA posts on 

threshold identified in PGP Part 1.2.2 ·the Internet receipt ofyour complete 

for that year. and accurate NO!. Approval of project 

must be obtained from the Warm 

·Springs Tribes before commencement 

Iofany project. 

I 

Operators commencing discharge in later than 30 days after IImmediately, for activities conducted in 

response to a declared pest emergency Icommencement of discharge.• :response to declared pest emergency 

situation as defined in Appendix A. situation. Approval of project must be 

•obtained from the Warm Springs Tribes 

· before commencement of any project. - -- -------,.... 

In the event that a discharge occurs prior to your submitting an NOI, you must comply with all other requirements of the POP immediately. 

Based on a review of the NOI EPA may delay authorization for further review, or may determine that additional 

technology based and/or water quality based effluent limitations are necessary, or may 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 Springs Tribes of their decision and consult with the Tribes on any 

individual NPDES permit proposed to be issued for the Warm Springs Reservation. 
Continuation of this Permit. Ifthis POP is not reissued or replaced 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. 

EPA Requiring 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 

oftheir decision and consult with the Tribes on any individual NPDES pennit proposed to be issued for the 

Warm Springs Reservation. 

Operator Requesting Coverage under an Alternative Permit. If you 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 I 22.26(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 for the 

Wann Springs Reservation. 

Other Federal and State and Tribal Laws. All applicants must comply with Warm Springs Tribes 

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 of pesticides. 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 of the nature of permit conditions being 

discussed for incorporation into the final permit is provided in Part Ill.! O.F of the permit fact sheet.] 

In the event NMFS or FWS detennine that they would require additional measures to protect listed species 

and/or critical 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 of Locally Rare and Culturally significant species and all requirements ofthis 

plan must be followed. 

Compliance with Any Pre-Existing ESA Actions. 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/or NMFS, and/or 

b. ESA Section 10 pennit issued to you by FWS and/or NMFS. 

[EPA may include additional effluent limitations and/or recommendations specific to protection of 

federally listed threatened and endangered species andfederally-designated critical habitat based on 

ongoing consultation with FWS and NMFS. In the event NMFS or FWS 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 "government to government" basis regarding any measures 

proposed to be issued for the Wann Springs Reservation. J 

Section 2: Technology-Based Effluent Limitations 

To meet the effluent limitations in POP Part 2, operators must implement site-specific control measures 

that minimize discharges of pesticides to waters ofthe U.S. The tenns "minimize" and "control measure" 

are defined in POP Appendix A. 

Minimize Pesticide Discharges to Waters of the United States. All operators, regardless of whether 

they are required to submit an NOI, must minimize the discharge of pollutants resulting from the 

application of pesticides. All operators must also do the following: 

1. 	 Use the lowest effective amount of pesticide product per application and optimum frequency of 

pesticide applications necessary to control the target pest, consistent with reducing the potential 

for development of pest resistance; 

2. 	 Perfonn regular maintenance activities to reduce leaks, spills, or other unintended 

discharges of pesticides associated with the application of pesticides 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 

must ensure that the equipment's rate of pesticide application is calibrated to deliver the precise 

quantity of pesticide needed to achieve greatest efficacy against the target pest. 

Integrated Pest Management (IPM) Practices. All applicants must follow Section 2.2 of the 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 Project Assessment on Pesticide and herbicide 

use. 

Section 3: Water Quality-Based Effluent Limitations 

Discharges must be controlled as necessary to meet applicable numeric and narrative tribal water quality 

standards. 

If at any time applicant become aware, or Tribe or EPA determines, that the discharge causes or 

contributes to an excursion of applicable water quality standards, corrective action must be taken 

immediately and as required in PGP Part 6. 

Section 4: 	 Site Monitorine Requirements for Pesticide Applicators. 
Applicants must monitor the amount of pesticide applied to ensure the lowest amount is used to effectively 

control the pest, consistent with reducing the potential for development of pest resistance. Applicants must 

monitor staff performing regular maintenance activities and ensure that equipment is in proper operating 

condition to reduce the potential for leaks, spills, or other unintended discharge of pesticides to waters of 

the U.S. Additionally, pesticide application activities are to be monitored to ensure that the 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 regular basis. 

Visual Monitoring Requirements for all Operators. 

All operators covered under POP permit must conduct spot checks in the area to and around where 

pesticides are applied for possible and observable adverse incidents, as defined in POP Appendix A, 

caused by application of pesticides, includ ing but not I imited to the unanticipated death or distress of nontarget organisms and disruption of wildlife habitat, recreational or municipal water use. Visual assessments 

ofthe application site must be performed: 

a. During any post-application surveillance or efficacy check that you conduct, if surveillance or an 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 of coverage under this general permit, even if your 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 of discharge, 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 of discharge, that they will exceed· 


an annual treatment area threshold identified in PGP Part 


1.2.2 for that year. I 

Ooeraltors commencing discharge in response to a declared 'No later than 90 days after responding to declared pest 


pest emergency situation as defined in PG P Appendix A that emergency situation. 


will cause the operator to exceed an annual treatment area 


threshold. 


The PDMP does not contain eftluent limitations; the limitations are contained in POP Parts 2 and 3 of the 

permit. The PDMP documents how applicant will implement the eftluent limitations in POP Parts 2 and 3 

ofthe permit, including your evaluation and selection of control measures to meet those eftluent limitations 

and minimize discharges. Contents of the 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 of the final 

POMP and immediately make copy available to the Warm Springs Tribes. 

Situations Requiring Revision of Control Measures. 

If any ofthe following situations occur, applicant must review and, as necessary, revise the evaluation and 

selection of control measures to ensure that the situation is eliminated and will not be repeated in the future: 

a. An unauthorized release or discharge associated with the application of pesticides (e.g., spill, leak, or 

discharge not authorized by this or another NPOES 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: 

.1 Use the lowest amount of pesticide produce per appl ication and optimum frequency of pesticide 

applications necessary to control the target pest, consistent with reducing the potential for development 

of pest resistance; 

.2Perform regular maintenance activities to reduce leaks, spills, or other unintended discharges of 

pesticides associated with the application of pesticides 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 basis to ensure effective pesticide application and pest control. Applicant must 

ensure that the equipment's rate of pesticide application is calibrated to deliver the precise minimum 

quantity of pesticide needed to achieve greatest efficacy against the target pest. 

d. An inspection or evaluation of activities by an EPA official, or local, State, Territorial or Tribal entity, 

reveals that modifications to the control measures are necessary to meet the 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 POP Appendix A. 

Section 6: Corrective Action 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 if practicable, or if not, as soon as possible thereafter. 

Effect of Corrective Action. The occurrence of a situation identified in POP Part 6.1 may constitute a 

violation of the permit. All corrective measures described in POP part 6 must be followed. The Warm 

Springs Tribes must be informed immediately of any corrective actions taken or required. 

Section 7: Record-keepinK and Annual 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 of the permit. Applicant will also 

send copies of all EPA required reports to the Warm Springs Tribes at the same time required by the POP. 

Section 8: EPA Contact Information and MailinK Addresses 

Notices of Intent 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 of you becoming aware of the 

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 of the appropriate EPA Regional Office. If EPA notifies 

dischargers (either directly, by public notice, or by making information available on the Internet) of other 

reporting options that become available at a later date (e.g., electronic submission), operators may take 

advantage of those options, in accordance with the instructions provided by EPA, to satisfy the reporting 

requirements ofthis permit. 

EPA Headquarters Addresses 

Region 10: Alaska, Idaho, Oregon (except see Region 9 for Fort McDermitt Reservation), and 

Washington. 

U.S. EPA Region 10 Office of Water and Watersheds OWW-\30 

1200 6th Avenue Suite 900 

Seattle, WA 98101 

Section 9: Warm Springs Tribe Contact Information and Mailing Addresses 

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 of Warm Springs 

PO Box C, Warm Springs, OR. 97761 

Mr. Charles Calica, Secretary Treasurer 

Confederated Tribes of Warm Springs 

PO Box C, Warm Springs, OR. 97761. 

Mr. Robert Brunoe, General Manager Branch of natural Resources 

Confederated Tribes of Warm 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