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 6560-50 

ENVIRONMENTAL PROTECTION AGENCY 

[FRL-XXXX-X] 

 

Draft National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit 

for Point Source Discharges from the Application of Pesticides 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Notice of draft permit and notice of public meetings. 

SUMMARY: All ten EPA Regions today are proposing a draft NPDES general permit for point 

source discharges from the application of certain pesticides to waters of the United States. Once 

finalized, this permit will be available to operators in those areas where EPA is the NPDES 

permitting authority. This action is in response to the Sixth Circuit Court’s ruling that vacated an 

EPA regulation that excluded discharges from the application of pesticides to or over, including 

near waters of the United States from the need to obtain an NPDES permit if the application was 

done in accordance with other laws. EPA requested and was granted a two-year stay of the 

Court’s mandate to provide time to draft and implement the permit noticed today. The stay of 

the mandate expires on April 9, 2011; where after, NPDES permits will be required for all point 

source discharges to waters of the United States of biological pesticides, and chemical pesticides 

that leave a residue. 
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This Federal Register notice briefly summarizes the requirements in this draft general permit for 

pesticides applications to waters of the U.S. EPA is soliciting public comment on all aspects of 

the draft NPDES permit. This Federal Register notices also includes a list of specific issues 

about which the Agency is particularly asking for comment. Supporting documentation to the 

permit is contained in an accompanying fact sheet. The public is encouraged to read this fact 

sheet to better understand the permit requirements. The fact sheet and permit can be found at 

www.epa.gov/npdes/pesticides. 

DATES: Comments on the draft general permit must be received on or before [insert date 45

days after publication in the Federal Register]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ–OW–2010–0257, 

by one of the following methods: 

1. www.regulations.gov: Follow the online instructions for submitting comments. 

2. E-mail: ow-docket@epa.gov.

3. Mail to: Water Docket, U.S. Environmental Protection Agency, Mail Code: 2822T, 1200 

Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–

2010–0257. 

4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 Constitution Avenue, NW., 

Washington, DC 20004, Attention: Docket ID No. EPA–HQ–OW–2010–0257. Such deliveries 

are only accepted during the Docket’s normal hours of operation, and special arrangements 

should be made for deliveries of boxed information. 

Deleted: 30
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Instructions: Direct your comments to Docket ID No. EPA–HQ–OW–2010–0257. EPA’s policy 

is that all comments received will be included in the public docket without change and may be 

made available online at www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential Business Information (CBI) 

or other information whose disclosure is restricted by statute. Do not submit information that you 

consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The 

www.regulations.gov website is an ‘‘anonymous access’’ system, which means EPA will not 

know your identity or contact information unless you provide it in the body of your comment. If 

you send an e-mail comment directly to EPA without going through www.regulations.gov your 

email address will be automatically captured and included as part of the comment that is placed 

in the public docket and made available on the Internet. If you submit an electronic comment, 

EPA recommends that you include your name and other contact information in the body of your 

comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to 

technical difficulties and cannot contact you for clarification, EPA may not be able to consider 

your comment. Electronic files should avoid the use of special characters, any form of 

encryption, and be free of any defects or viruses. For additional information about EPA’s public 

docket visit the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed 

in the index, some information is not publicly available, e.g., CBI or other information whose 

disclosure is restricted by statute. Certain other material, such as copyrighted material, will be 

publicly available only in hard copy. Publicly available docket materials are available either 

electronically in www.regulations.gov or in hard copy at a docket facility. The Office of Water 
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(OW) Docket Center is open from 8:30 until 4:30 p.m., Monday through Friday, excluding legal 

holidays. The OW Docket Center telephone number is (202) 566–2426, and the Docket address 

is OW Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC 

20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–

1744. 

Public meetings and public hearing: EPA will hold three (3) public meetings in: Albuquerque, 

New Mexico on June 14, 2010; Boise, Idaho on June 16, 2010; Boston, Massachusetts on June 

21, 2010; and a public hearing in Washington, DC on June 23, 2010. The focus of each 

meeting/hearing is to present the draft general permit and the basis for the draft permit 

requirements, and to answer questions concerning the draft permit. At these meetings, any 

person may provide written or oral statements and data pertaining to the draft permit. The date, 

time and location of the public meetings and public hearing are as follows: 

• Albuquerque, New Mexico: Monday, June 14, 2010, at the CNM Workforce Training 

Center, Room 101, 5600 Eagle Rock Avenue NE, Albuquerque, New Mexico, from 

12:00 p.m. – 3:00 p.m. 

• Boise, Idaho: Wednesday, June 16, 2010, at the Bureau of Reclamation, Rooms 206 & 

219, 1150 North Curtis Road, Boise, Idaho from 9:00 a.m. to 12:00 p.m. 

• Boston, Massachusetts: Monday, June 21, 2010, at EPA Region 1, 5 Post Office Square - 

Suite 100, Conference Room 1529, Boston, MA 02109-3912, from 1:00 p.m. to 4:00 p.m. 
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• Washington, DC: Wednesday, June 23, 2010, at the EPA East Building, Room 1153, 

1301 Constitution Avenue, NW, Washington, DC 20004, from 10:00 a.m. to 1:00 p.m. 

If you would like to present a statement at the public hearing in Washington, D.C., please 

contact Virginia Garelick at 202-564-2316 to register your intent to provide a public 

statement. Speakers will be given up to three minutes (or as time allows) to provide their 

comments on a first come first served basis. Any additional comments will need to be 

provided in writing. EPA will consider all comments received and will include copies of 

such in the Administrative Record. 

 

 EPA encourages interested and potentially affected stakeholders to attend one of the 

scheduled public meetings and provide oral or written comments. Please note that the public 

meetings may close early if all business is finished. Oral or written comments received at the 

public meetings will be entered into the Docket for this permit. If you are unable to attend, you 

may submit comments to the EPA Water Docket at the address identified in the Addresses

section listed above. 

 More information on these meetings will be available on the Internet at 

www.epa.gov/npdes/pesticides, including any additional dates and locations if scheduled. Due 

to limited seating, those wishing to attend EPA's public meetings are asked to please send an email message containing their name, telephone number and organization to Virginia Garelick at 

garelick.virginia@epa.gov. An e-mail message is not required, however. Anyone wishing to 

may attend provided space is available. If you need a sign language interpreter at any of these 

meetings, you should notify Ms. Garelick of such at least ten business days prior to the meetings 
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so that appropriate arrangements can be made. For further information, including registration 

information, please refer to the following website: www.epa.gov/npdes/pesticides. 

Webcast: EPA has scheduled a Webcast to provide information on this draft permit and to 

answer questions for interested parties that are unable to attend the public meetings or hearing. 

The webcast will be broadcast on June 17, 2010, from 1:00 p.m. to 3:00 p.m. Eastern Standard 

Time (EST). For information on how to register and attend the webcast, see EPA's website at 

www.epa.gov/npdes/training. 

FOR FURTHER INFORMATION CONTACT: For further information on this draft NPDES 

general permit, contact the appropriate EPA Regional Office listed in Section I.F, or contact Jack 

Faulk, EPA Headquarters, Office of Water, Office of Wastewater Management at tel.: 202-564-

0768 or e-mail: faulk.jack@epa.gov. 

SUPPLEMENTARY INFORMATION: This supplementary information section is organized 

as follows: 

Table of Contents 

I. General Information 

 A. Does This Action Apply to Me? 

 B. How Can I Get Copies of This Document and Other Related Information? 

 C. What Should I Consider as I Prepare my Comments for EPA? 

 D. Finalizing this Permit 

 E. Who Are the EPA Regional Contacts for this Draft Permit? 
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II. Statutory and Regulatory History 

 A. Clean Water Act 

 B. NPDES Permits 

 C. History of Pesticide Application Regulations 

 D. Court Decisions Leading to the CWA Regulation Concerning Pesticide Applications 

 E. 2006 Agency Rulemaking Excluding Discharges from Pesticide Applications from 

NPDES Permitting 

 F. Legal Challenges to the 2006 NPDES Pesticides Rule and Resulting Court Decision 

III. Scope and Applicability of this NPDES Pesticides General Permit 

 A. Geographic Coverage 

 B. Categories of Facilities Covered 

 C. Summary of Permit Terms and Requirements 

 D. Key Permit Provisions for which EPA is Soliciting Comment 

 E. Permit Appeal Procedures 

IV. Economic Impacts of the Pesticides General Permit

V. Executive Order 12866 

I. General Information 

A. Does This Action Apply to Me? 

You may be affected by this action if your application of pesticides, under the use patterns in 

Section III.B., results in a discharge to waters of the United States in one of the geographic areas 

identified in Section III.A. Potentially affected entities, as categorized in the North American 

Industry Classification System (NAICS), may include, but are not limited to: 

Deleted: V. Regulatory Flexibility Act¶
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Table 1. - Entities Potentially Regulated by this Permit 

Category NAICS Examples of potentially affected entities 

Agriculture parties—

General agricultural 

interests, 

farmers/producers, 

forestry, and irrigation. 

111 Crop Production Producers of crops mainly for food and fiber including 

farms, orchards, groves, greenhouses, and nurseries that 

have irrigation ditches requiring pest control. 

 113110 Timber Tract 

Operations 

The operation of timber tracts for the purpose of selling 

standing timber. 

 113210 Forest Nurseries 

Gathering of Forest 

Products 

Growing trees for reforestation and/or gathering forest 

products, such as gums, barks, balsam needles, rhizomes, 

fibers, Spanish moss, ginseng, and truffles. 

 221310 Water Supply for 

Irrigation 

Operating irrigation systems. 

Pesticide parties (includes 

pesticide manufacturers, 

other pesticide 

users/interests, and 

consultants). 

325320 Pesticide and 

Other Agricultural 

Chemical Manufacturing. 

Formulation and preparation of agricultural pest control 

chemicals. 

Public health parties 

(includes mosquito or 

other vector control 

districts and commercial 

applicators that service 

these). 

923120 Administration of 

Public Health Programs 

Government establishments primarily engaged in the 

planning, administration, and coordination of public health 

programs and services, including environmental health 

activities. 

Resource management 

parties (includes State 

departments of fish and 

wildlife, State departments 

of pesticide regulation, 

State environmental 

agencies, and universities). 

924110 Administration of 

Air and Water Resource 

and Solid Waste 

Management Programs 

Government establishments primarily engaged in the 

administration, regulation, and enforcement of air and 

water resource programs; the administration and regulation 

of water and air pollution control and prevention programs; 

the administration and regulation of flood control 

programs; the administration and regulation of drainage 

development and water resource consumption programs; 

and coordination of these activities at intergovernmental 

levels. 

 924120 Administration of 

Conservation Programs 

Government establishments primarily engaged in the 

administration, regulation, supervision and control of land 

use, including recreational areas; conservation and 

preservation of natural resources; erosion control; 

geological survey program administration; weather 

forecasting program administration; and the administration 

and protection of publicly and privately owned forest 

lands. Government establishments responsible for 

planning, management, regulation and conservation of 

game, fish, and wildlife populations, including wildlife 

management areas and field stations; and other 

administrative matters relating to the protection of fish, 
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game, and wildlife are included in this industry. 

Utility parties (includes 

utilities) 

221 Utilities Provide electric power, natural gas, steam supply, water 

supply, and sewage removal through a permanent 

infrastructure of lines, mains, and pipes. 

B. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under Docket ID 

No. EPA-HQ-OW-2010-0257. The official public docket is the collection of materials that is 

available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 

West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. Although all documents in 

the docket are listed in an index, some information is not publicly available, i.e., CBI or other 

information whose disclosure is restricted by statute. EPA policy is that copyrighted material will 

not be placed in EPA's electronic public docket but will be available only in printed, paper form 

in the official public docket. Publicly available docket materials are available in hard copy at the 

EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202-

566-1744, and the telephone number for the Water Docket is 202-566-2426. 
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2. Electronic Access. You may access this Federal Register document electronically 

through the United States government on-line source for federal regulations at 

www.regulations.gov. 

 Electronic versions of this draft permit and fact sheet are available on EPA's NPDES 

website at www.epa.gov/npdes/pesticides. 

 An electronic version of the public docket is available through EPA's electronic public 

docket and comment system, EPA Dockets. You may use EPA Dockets at www.regulations.gov

to view public comments, access the index listing of the contents of the official public docket, 

and to access those documents in the public docket that are available electronically. For 

additional information about EPA’s public docket, visit the EPA Docket Center homepage at 

www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available 

electronically, you may still access any of the publicly available docket materials through the 

Docket Facility identified in Section I.A.1. 

C. What Should I Consider as I Prepare My Comments for EPA? 

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark all of the information that you claim to be CBI. For CBI information on 

computer discs mailed to EPA, mark the surface of the disc as CBI. Also identify electronically 

the specific information contained in the disc that you claim is CBI. In addition to one complete 

version of the specific information claimed as CBI, you must submit a copy that does not contain 
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the information claimed as CBI for inclusion in the public document. Information so marked will 

not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. 

For public commenters, it is important to note that EPA's policy is that public comments, 

whether submitted electronically or in paper, will be made available for public viewing in EPA's 

electronic public docket as EPA receives them and without change, unless the comment contains 

copyrighted material, CBI, or other information whose disclosure is restricted by statute. When 

EPA identifies a comment containing copyrighted material, EPA will provide a reference to that 

material in the version of the comment that is placed in EPA's electronic public docket. The 

entire printed comment, including the copyrighted material, will be available in the public 

docket. 

 Public comments submitted on computer disks that are mailed or delivered to the docket 

will be transferred to EPA's electronic public docket. Public comments in paper form that are 

mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. 

Where practical, physical objects will be photographed, and the photograph will be placed in 

EPA's electronic public docket along with a brief description written by the docket staff. 

2. Tips for Preparing Your Comments 

When submitting comments, remember to: 

• Identify this permit by docket number and other identifying information (subject heading, 

Federal Register date, and page number). 
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• Follow directions - The agency may ask you to respond to specific questions or organize 

comments by referencing a section or part of this permit. 

• Explain why you agree or disagree, suggest alternatives, and suggest substitute language 

for your requested changes. 

• Describe any assumptions and provide any technical information and/or data that you 

used. 

• If you estimate potential costs or burdens, explain how you arrived at your estimate in 

sufficient detail to allow for it to be reproduced. 

• Provide specific examples to illustrate your concerns, and suggest alternatives. 

• Explain your views as clearly as possible. 

• Make sure to submit your comments by the comment period deadline identified. 

D. Finalizing this Permit 

 After the close of the public comment period on this draft, EPA will issue a final permit. 

That final permit will be issued after all public comments received during the public comment 

period have been considered and appropriate changes made to this permit. EPA's response to 

comments received will be included in the docket as part of the final permit decision. 

E. Who Are the EPA Regional Contacts for this Draft Permit?
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For EPA Region 1, contact George Papadopoulos at USEPA Region 1, 5 Post Office 

Square - Suite 100, Boston, MA 02109-3912; or at tel.: (617) 918-1579; or e-mail at 

papadopoulos.george@epa.gov. 

For EPA Region 2, contact Maureen Krudner at USEPA Region 2, 290 Broadway, New 

York, NY 10007-1866; or tel.: (212) 637-3874; or e-mail at krudner.maureen@epa.gov. 

For EPA Region 3, contact Peter Weber at USEPA Region 3, 1650 Arch Street, Mail 

Code: 3WP41, Philadelphia, PA 19103-2029; or at tel.: (215) 814-5749; or e-mail at 

weber.peter@epa.gov. 

 

For EPA Region 4, contact Sam Sampath at USEPA Region 4, 61 Forsyth Street, SW, 

Atlanta, CA 30303-8960; or at tel.: (404) 562-9229; or e-mail at sampath.sam@epa.gov. 

For EPA Region 5, contact Morris Beaton at USEPA Region 5, 77 West Jackson 

Boulevard, Mail Code: WN16J, Chicago, IL 60604-3507; or at tel.: (312) 353-0850; or e-mail at 

beaton.morris@epa.gov. 

For EPA Region 6, contact Phillip Jennings at USEPA Region 6, 1445 Ross Avenue, 

Suite 1200, Mail Code: 6WO, Dallas, TX 75202-2733; or at tel.: (214) 665-7538 or e-mail at 

jennings.phillip@epa.gov. 
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 For EPA Region 7, contact Kimberly Hill at USEPA Region 7, 901 North Fifth Street, 

Mail Code: XX, Kansas City, KS 66101; or at tel.: (913) 551-7841 or e-mail at: 

hill.kimberly@epa.gov.

For EPA Region 8, contact David Rise at USEPA Region 8, Montana Operations Office, 

Federal Building, 10 West 15th Street, Suite 3200, Mail Code: 8MO, Helena, MT 59626; or at 

tel.: 406-457-5012 or e-mail at: rise.david@epa.gov. 

For EPA Region 9, contact Pascal Mues, USEPA Region 9, 75 Hawthorne Street, Mail 

Code: WTR-5, San Francisco, CA 94105; or at tel.: (415) 972-3768 or e-mail at: 

mues.pascal@epa.gov. 

For EPA Region 10, contact Dirk Helder, USEPA Region 10 Idaho Operations Office, 

1435 North Orchard Street, Boise, ID 83706 or at tel.: 208-378-5749 or e-mail at: 

helder.dirk@epa.gov. 

II. Statutory and Regulatory History 

A. Clean Water Act 

 Section 301(a) of the Clean Water Act (CWA) provides that “the discharge of any 

pollutant by any person shall be unlawful” unless the discharge is in compliance with certain 

other sections of the Act. 33 U.S.C. 1311(a). The CWA defines “discharge of a pollutant” as 

“(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of 

any pollutant to the waters of the contiguous zone or the ocean from any point source other than 
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a vessel or other floating craft.” 33 U.S.C. 1362(12). A “point source” is any “discernible, 

confined and discrete conveyance” but does not include “agricultural stormwater discharges and 

return flows from irrigated agriculture.” 33 U.S.C. 1362(14). 

 The term “pollutant” includes, among other things, “garbage... chemical wastes, 

biological materials ...and industrial, municipal, and agricultural waste discharged into water.” 

33 U.S.C. 1362(6). 

 A person may discharge a pollutant without violating the section 301 prohibition by 

obtaining authorization to discharge (referred to herein as “coverage”) under a section 402 

National Pollutant Discharge Elimination System (NPDES) permit (33 U.S.C. 1342). Under 

section 402(a), EPA may “issue a permit for the discharge of any pollutant, or combination of 

pollutants, notwithstanding section 1311(a)” upon certain conditions required by the Act. 

B. NPDES Permits 

 An NPDES permit authorizes the discharge of a specified amount of a pollutant or 

pollutants into a receiving water under certain conditions. The NPDES program relies on two 

types of permits: individual and general. An individual permit is a permit specifically tailored 

for an individual discharger. Upon receiving the appropriate permit application(s), the permitting 

authority, i.e., EPA or a state or territory, develops a draft permit for public comment for that 

particular discharger based on the information contained in the permit application (e.g., type of 

activity, nature of discharge, receiving water quality). Following consideration of public 
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comments, a final permit is then issued to the discharger for a specific time period (not to exceed 

5 years) with a provision for reapplying for further permit coverage prior to the expiration date. 

 A general permit covers multiple facilities/sites/activities within a specific category for a 

specific period of time (not to exceed 5 years). For general permits, EPA or a state or territory 

develops and issues the permit with dischargers then obtaining coverage under the permit, 

typically through submission of a Notice of Intent (NOI). A general permit is also subject to 

public comment, as is being done under this Federal Register notice, and is developed and issued 

by a permitting authority (in this case, EPA). 

Under 40 CFR 122.28, general permits may be written to cover categories of point 

sources having common elements, such as facilities that involve the same or substantially similar 

types of operations, that discharge the same types of wastes, or that are more appropriately 

regulated by a general permit. Given the vast number of pesticide applicators requiring NPDES 

permit coverage and the discharges common to these applicators, EPA believes that it makes 

administrative sense to issue this general permit, rather than issuing individual permits to each 

applicator. Entities still have the ability to seek individual permit coverage. Courts have 

approved of the use of general permits. See e.g., Natural Res. Def. Council v. Costle, 568 F.2d 

1369 (D.C. Cir. 1977); EDC v. US EPA, 344 F.3d 832, 853 (Ninth Cir. 2003). The general permit 

approach allows EPA to allocate resources in a more efficient manner and to provide more 

timely coverage. As with any permit, the CWA requires the general permit to contain 

technology-based effluent limitations, as well as any more stringent limits when necessary to 

meet applicable state water quality standards. 
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C. History of Pesticide Application Regulation under FIFRA 

 EPA regulates the sale, distribution and use of pesticides in the United States under the 

statutory framework of FIFRA to ensure that, when used in conformance with FIFRA labeling 

directions, pesticides will not pose unreasonable risks to human health and the environment. All 

new pesticides must undergo a rigorous registration procedure under FIFRA during which EPA 

assesses a variety of potential human health and environmental effects associated with use of the 

product. Under FIFRA, EPA is required to consider the effects of pesticides on the environment 

by determining, among other things, whether a pesticide “will perform its intended function 

without unreasonable adverse effects on the environment,” and whether “when used in 

accordance with widespread and commonly recognized practice [the pesticide] will not generally 

cause unreasonable adverse effects on the environment.” 7 U.S.C. 136a(c)(5). In performing this 

analysis, EPA examines, among other things, the ingredients of a pesticide, the intended type of 

application site and directions for use, and supporting scientific studies for human health and 

environmental effects and exposures. The applicant for registration of the pesticide must submit 

data as required by EPA regulations. 

 When EPA approves a pesticide for a particular use, the Agency imposes labeling 

restrictions governing such use. Compliance with the labeling requirements ensures that the 

pesticide serves an intended purpose and avoids unreasonable adverse effects. It is illegal under 

Section 12(a)(2)(G) of FIFRA to use a registered pesticide in a manner inconsistent with its 
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labeling. States have primary authority under FIFRA to enforce “use” violations, but both the 

States and EPA have ample authority to prosecute pesticide misuse when it occurs. 

D. Court Decisions Leading to the CWA Regulation Concerning Pesticide Applications 

Over the past ten years, several courts addressed the question of whether the CWA 

requires NPDES permits for pesticide applications. These cases resulted in some confusion 

among the regulated community and other affected citizens about the applicability of the CWA 

to pesticides applied to waters of the United States. In 2001, the U.S. Court of Appeals for the 

Ninth Circuit held in Headwaters, Inc. v. Talent Irrigation District (Talent) that an applicator of 

herbicides was required to obtain an NPDES permit under the circumstances before the court. 

243 F.3rd 526 (Ninth Cir. 2001). 

In 2002, the Ninth Circuit in League of Wilderness Defenders et al. v. Forsgren

(Forsgren) held that the application of pesticides to control Douglas Fir Tussock Moths in 

National Forest lands required an NPDES permit. 309 F.3d 1181 (Ninth Cir. 2002). The court in 

Forsgren did not analyze the question of whether the pesticides applied were pollutants, because 

it incorrectly assumed that the parties agreed that they were (in fact, the United States expressly 

reserved its arguments on that issue in its brief to the District Court. Id. at 1184, n.2). The court 

instead analyzed the question of whether the aerial application of the pesticide constituted a point 

source discharge, and concluded that it did. Id. at 1185. 
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Since Talent and Forsgren, California, Nevada, Oregon, and Washington, all of which are 

within the Ninth Circuit, have issued permits for the application of certain types of pesticides 

(e.g., products to control aquatic weeds and algae and products to control mosquito larvae). 

Other States have continued their longstanding practice of not issuing permits to people who 

apply pesticides to waters of the United States. These varying practices reflected the substantial 

uncertainty among regulators, the regulated community, and the public regarding how the CWA 

applies to pesticides that have been properly applied and used for their intended purpose. 

Additionally, the Second Circuit Court of Appeals addressed the applicability of the 

CWA's NPDES permit requirements to pesticide applications. In Altman v. Town of Amherst

(Altman), the court vacated and remanded for further development of the record a District Court 

decision holding that the Town of Amherst was not required to obtain an NPDES permit to spray 

mosquitocides over waters of the United States. 47 Fed. Appx. 62, 67 (Second Cir. 2002). The 

United States filed an amicus brief setting forth the Agency's views in the context of that 

particular case. In its opinion, the Second Circuit stated that “[u]ntil the EPA articulates a clear 

interpretation of current law-- among other things, whether properly used pesticides released into 

or over waters of the United States can trigger the requirement for NPDES permits * * *--the 

question of whether properly used pesticides can become pollutants that violate the CWA will 

remain open.” Id. at 67. 
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In 2005, the Ninth Circuit again addressed the CWA’s applicability to pesticide 

applications. In Fairhurst v. Hagener, the court held that pesticides applied directly to a lake to 

eliminate non-native fish species, where there are no residues or unintended effects, are not 

“pollutants” under the CWA because they are not chemical wastes. 422 F.3d 1146 (Ninth Cir. 

2005). 

Recently, the Second Circuit reaffirmed the recent Sixth Circuit decision in ruling that 

trucks and helicopters that sprayed pesticides should be considered point sources under the 

CWA. Peconic Baykeeper Inc. v. Suffolk County, 2nd Cir., No. 09-97-cv, 3/30/10. 

E. 2006 Agency Rulemaking Excluding Discharges from Pesticides from NPDES 

Permitting 

On November 27, 2006 (71 FR 68483), EPA issued a final rule (hereinafter called the 

“2006 NPDES Pesticides Rule”) clarifying two specific circumstances in which an NPDES 

permit is not required to apply pesticides to or over, including near water provided that the 

application is consistent with relevant Federal Insecticide, Fungicide and Rodenticide Act 

(FIFRA) requirements. They are: 1) the application of pesticides directly to water to control 

pests; and 2) the application of pesticides to control pests that are present over, including near, 

water where a portion of the pesticides will unavoidably be deposited to the water to target the 

pests. 
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F. Legal Challenges to the 2006 NPDES Pesticides Rule and Resulting Court Decision 

 On January 19, 2007, EPA received petitions for review of the 2006 NPDES Pesticides 

Rule from both environmental and industry groups. Petitions were filed in eleven circuit courts 

with the case, National Cotton Council, et al, v. EPA, assigned to the Sixth Circuit Court of 

Appeals (Sixth Circuit). On January 9, 2009, the Sixth Circuit vacated EPA’s 2006 NPDES 

Pesticides Rule under a plain language reading of the CWA. National Cotton Council of 

America v. EPA, 553 F.3d 927 (Sixth Cir. 2009). The Court held that the CWA unambiguously 

includes “biological pesticides,” and “chemical pesticides” that leave a residue within its 

definition of “pollutant.” Specifically, the application of chemical pesticides that leaves no 

residue is not a pollutant. The Court also found that the application of pesticides is from a point 

source. 

Based on the Court’s decision, chemical pesticides that leave no residue do not require an 

NPDES permit. However, EPA assumes for purpose of this permit that all chemical pesticides 

have a residue, and, therefore would need a permit unless it can be shown that there is no 

residual. Unlike chemical pesticides (where the residual is the pollutant), the Court further found 

that biological pesticides are pollutants regardless of whether the application results in residuals 

and such discharges need an NPDES permit. 

In response to this decision, on April 9, 2009, EPA requested a two-year stay of the 

mandate to provide the Agency time to develop general permits, to assist NPDES-authorized 

states to develop their NPDES permits, and to provide outreach and education to the regulated 
Edits in Response to OMB Comments

22 

community and other stakeholders. On June 8, 2009, the Sixth Circuit granted EPA the two-year 

stay of the mandate until April 9, 2011. On November 2, 2009, Industry Petitioners of the Sixth 

Circuit Case petitioned the Supreme Court to review the Sixth Circuit’s decision. On February 

22, 2010, the Supreme Court issued its decision denying petitions to review the Sixth Circuit 

decision. 

As a result of the Court’s decision on the 2006 NPDES Pesticides Rule, at the end of the 

two-year stay, NPDES permits will be required for point source discharges to waters of the U.S. 

of biological pesticides, and of chemical pesticides that leave a residue. Until April 9, 2011, the 

rule remains in effect and NPDES permits are not required. 

In response to the Court’s decision, EPA is proposing this draft general permit for four 

specific pesticide use patterns. The specified use patterns may not represent every pesticide 

application activity for which a discharge requires NPDES permit coverage. The four use 

patterns included in this draft permit are generally consistent with what was addressed in the 

2006 NPDES Pesticides Rule. 

Neither the Court’s ruling nor EPA’s issuance of this general permit affects the existing 

CWA exemptions for irrigation return flow and agricultural stormwater runoff, which are 

excluded from the definition of a point source under Section 502(14) of the CWA and do not 

require NPDES permit coverage. 

Deleted: from

Deleted: from
Edits in Response to OMB Comments

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III. Scope and Applicability of this NPDES Pesticides General Permit 

A. Geographic Coverage 

 

 EPA will provide permit coverage for classes of discharges where EPA is the NPDES 

permitting authority. The geographic coverage of today's draft permit is listed below. Where 

this permit covers activities on Indian Country lands, those areas are as listed below within the 

borders of that state: 

EPA Region 1

• The Commonwealth of Massachusetts, including Indian Country lands 

• Indian Country lands within the State of Connecticut 

• The State of New Hampshire 

• Indian Country lands within the State of Rhode Island 

• Federal Facilities in the State of Vermont 

EPA Region 2 

• Indian Country lands within the State of New York

• The Commonwealth of Puerto Rico 

EPA Region 3 

• The District of Columbia 

• Federal Facilities in the State of Delaware 

EPA Region 4 

• Indian Country lands within the State of Alabama 

• Indian Country lands within the State of Florida 
Edits in Response to OMB Comments

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• Indian Country lands within the State of Mississippi 

• Indian Country lands within the State of North Carolina 

EPA Region 5 

• Indian Country lands within the State of Michigan 

• Indian Country lands within the State of Minnesota 

• Indian Country lands within the State of Wisconsin 

EPA Region 6 

• Indian Country lands within the State of Louisiana 

• The State of New Mexico, including Indian Country lands within the State of New 

Mexico, except Navajo Reservation Lands (see Region 9) and Ute Mountain Reservation 

Lands (see Region 8) 

• The State of Oklahoma, including Indian Country lands 

• Discharges in the State of Texas that are not under the authority of the Texas 

Commission on Environmental Quality (formerly TNRCC), including activities 

associated with the exploration, development, or production of oil or gas or geothermal 

resources, including transportation of crude oil or natural gas by pipeline 

• Indian Country lands within the State of Texas 

EPA Region 7 

• Indian Country lands within the State of Iowa 

• Indian Country lands within the State of Kansas 

• Indian Country lands the State of Nebraska, except Pine Ridge Reservation lands (see 

Region 8) 

EPA Region 8 
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• Federal Facilities in the State of Colorado, except those located on Indian Country lands 

• Indian Country lands within the State of Colorado, as well as the portion of the Ute 

Mountain Reservation located in New Mexico 

• Indian Country lands within the State of Montana 

• Indian Country lands within the State of North Dakota 

• Indian Country lands within the State of South Dakota, as well as the portion of the Pine 

Ridge Reservation located in Nebraska (see Region 7) 

• Indian Country lands within the State of Utah, except Goshute and Navajo Reservation 

lands (see Region 9) 

• Indian Country lands within the State of Wyoming 

EPA Region 9 

• The Island of American Samoa 

• Indian Country lands within the State of Arizona as well as Navajo Reservation lands in 

New Mexico (see Region 6) and Utah (see Region 8) 

• Indian Country lands within the State of California 

• The Island of Guam 

• The Johnston Atoll 

• The Midway Island and Wake Island 

• The Commonwealth of the Northern Mariana Islands 

• Indian Country lands within the State of Nevada, as well as the Duck Valley Reservation 

in Idaho, the Fort McDermitt Reservation in Oregon (see Region 10) and the Goshute 

Reservation in Utah (see Region 8) 

EPA Region 10 
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• The State of Alaska, including Indian Country lands 

• The State of Idaho, including Indian Country lands within the State of Idaho, except 

Duck Valley Reservation lands (see Region 9) 

• Indian Country lands within the State of Oregon, except Fort McDermitt Reservation 

lands (see Region 9) 

• Federal Facilities in the State of Washington, including those located on Indian Country 

lands within the State of Washington 

B. Categories of Facilities Covered

 Today's draft general permit regulates discharges to waters of the United States from the 

application of (1) biological pesticides, and (2) chemical pesticides that leave a residue for the 

following pesticide use patterns: 

• 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 pests in this use category include but are not 

limited to mosquitoes and black flies. 

• Aquatic Weed and Algae Control - to control weeds and algae in water and at water’s 

edge. 

• Aquatic Nuisance Animal Control - to control invasive or other nuisance species in 

water and at water’s edge. Aquatic nuisance animals in this use category include, but are not 

limited to fish, lampreys, and mollusks. 
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• 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 pest 

effectively a portion of the pesticide unavoidably will be applied over and deposited to water. 

 The scope of activities encompassed by these pesticide use patterns is described in 

greater detail in Part 2.2 of this draft general permit. 

C. Summary of Permit Terms and Requirements 

Coverage under this Permit

 This permit will be available to operators of discharges to waters of the U.S. from the 

application of (1) biological pesticides, and (2) chemical pesticides that leave a residue for the 

following pesticide use patterns: mosquito and other flying insect pest control; aquatic weed and 

algae control; aquatic nuisance animal control; and forest canopy pest control. Not eligible for 

coverage under this permit are discharges to waters of the U.S. identified as impaired for the 

specific pesticide or its degradates being applied and any discharges to outstanding national 

resource waters (i.e., Tier 3 waters under anti-degradation regulations). To obtain authorization 

under this permit an operator must meet the eligibility requirements identified above and if the 

operator knows or reasonably should have known that its activities will exceed any annual 

treatment area threshold described in Part 1.2.2 of the permit, then an NOI must be submitted for 

permit coverage. 

Threatened and Endangered Species and Critical Habitat 

Deleted: over water 
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 Section 7(a)(2) of the Endangered Species Act (ESA) requires that EPA consult with the 

U.S. Fish and Wildlife Service and U.S. National Marine Fisheries Service (collectively called 

the “Services”) to ensure that the permit is not likely to jeopardize the continued existence of any 

threatened or endangered species or adversely affect its critical habitat. Consultation between 

EPA and the Services is currently ongoing with the results of that action to be included in the 

final permit. As a result of these consultations, EPA may need to consider adding conditions to 

the permit to further protect listed species and critical habitat. These requirements may include 

additional effluent limitations, monitoring, planning, recordkeeping, and/or reporting. A more 

detailed discussion of the permit conditions that may be considered is provided in Part III.10.F. 

of the permit fact sheet. Based on consultation to date, EPA included language in the draft 

general permit that would require: 

- Any operator that is required to submit an NOI to indicate in that NOI whether threatened 

and endangered species and/or its critical habitat are present in the area where permit 

coverage is being requested; 

- Where a pre-existing ESA Section 7 or Section 10 action already addresses discharges 

from activities also covered under this permit, that the conditions and/or requirements of 

those actions are incorporated as enforceable conditions of this general permit; and 

- All operators to notify the Services if they become aware of any adverse incident to a 

federally-listed threatened or endangered species or its critical habitat, that may have 

resulted from a discharge from their pesticide application. 

EPA requests comment on appropriate measures to protect endangered and threatened species, 

including the possible measures discussed in Part III.10.F of the draft Permit Fact Sheet. 
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Technology-Based Effluent Limitations 

The draft permit, in Part 2, requires all operators to minimize pesticide discharges into 

waters by doing 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; 

(2) perform regular maintenance activities to reduce leaks, spills, or unintended discharges of 

pesticides associated with the application of pesticides covered under this permit; and (3) 

maintain application equipment in proper operating condition by calibrating and 

cleaning/repairing such equipment on a regular basis to ensure effective pesticide application and 

pest control. Operators that exceed an annual treatment area threshold must also implement 

Integrated Pest Management (IPM) practices that require these operators to: (1) identify and 

assess the pest problem; (2) evaluate effective pest management; and (3) follow appropriate 

procedures for pesticide use. 

It is important to note that although the FIFRA labeling is not an effluent limitation, if the 

permittee is found to have applied a pesticide in a manner inconsistent with the relevant waterquality related FIFRA labeling requirements, EPA will presume that the effluent limitation to 

minimize pesticides entering the Waters of the United States has been violated under the NPDES 

permit. Therefore, use inconsistent with certain FIFRA labeling requirements could result in the 

permittee being held liable for CWA violation as well as a FIFRA violation. 

Water Quality-Based Effluent Limitations 

 In addition to the technology-based effluent limitations, the operator is required to control 

its discharge as necessary to meet applicable water quality standards. In general, EPA expects 
Edits in Response to OMB Comments

30 

that compliance with the technology-based effluent limitations and other terms and conditions in 

this permit will meet the water-quality effluent limitation. Part 3 contains permit conditions to 

prohibit any discharges that causes or contributes to an excursion of any applicable numeric or 

narrative EPA-approved state, territory, or tribal or EPA promulgated water quality standard. 

Site Monitoring 

 Part 4 requires entities to monitor to assess compliance with this permit. Permittees must 

monitor for observable adverse incidents in the treatment area and where pesticides are 

discharged to waters of the United States. Specifically operators are required to visually 

monitor for adverse impacts (as defined in the permit) during application, or during post 

application surveillance that is conducted as a regular part of doing business. 

Pesticide Discharge Management Plan 

An operator who is subject to Part 2.2 of this permit (i.e., one who is required to submit 

an NOI) must prepare a pesticide discharge management plan (PDMP) for its pest management 

area. Operators who know or should have reasonably known prior to commencement of 

discharge, that they will exceed an annual treatment area threshold identified in Part 1.2.2 for 

that year, must develop a PDMP prior to first pesticide application covered under this permit.. 

Operators who do not know or would reasonably not know until after commencement of 

discharge, that they will exceed an annual treatment area threshold identified in Part 1.2.2 for 

that year , must develop a PDMP prior to exceeding the annual treatment area threshold.. 

Operators commencing discharge in response to a declared pest emergency situation as defined 

in Appendix A, that will cause the operator to exceed an annual treatment area threshold, must 

develop a PDMP no later than 90 days after responding to the declared pest emergency. The 

Deleted: exceeds or expects

Deleted: exceed any annual treatment 

area threshold identified in 

Deleted: 1.

Deleted: general 

Deleted: within 90 days of determining 

that the threshold will be exceeded
Edits in Response to OMB Comments

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PDMP must include information on the pesticide discharge management team, pest management 

area, control measure, including evaluation and selection of pest management, and schedules and 

procedures for pest surveillance, equipment maintenance, application rate and frequency, 

assessing environmental conditions, spill prevention, spill response, adverse incident response, 

and pesticide monitoring. The PDMP, together with the additional documentation requirements 

in Part 7, document the practices the operator is implementing to meet the effluent limitations in 

this permit. 

Corrective Action 

 Part 6 outlines situations that require operators to review and revise their control 

measures. Changes to control measures must be made before the next pesticide application that 

results in a discharge or, if not possible, as soon as practicable. This draft permit also outlines 

the procedures for notification, reporting, and documentation of corrective actions for adverse 

incidents, spills and leaks and other situations triggering the need for such actions. 

Recordkeeping and Annual Reporting 

 In Part 7, operators required to submit an NOI are required to keep certain records of 

their pesticide discharges to demonstrate compliance with the permit conditions. This draft 

permit specifies which records must be kept and the timeframe for record retention. In addition, 

any operator who is required to submit an NOI must submit an annual report to EPA. The draft 

permit specifies the information that must be included in the annual report and the timeframe for 

submission. 
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D. Key Permit Provisions for which EPA is Soliciting Comment

EPA seeks comment on all aspects of this draft general permit and the accompanying fact 

sheet; however, in particular, EPA is soliciting comments on the following aspects of this permit: 

Number of Entities Covered Under this Permit 

This general permit provides coverage for the following four use patterns: mosquito and 

other flying insect pest control; aquatic weed and algae control; aquatic nuisance animal control; 

and forest canopy pest control. To gain a better understanding of the universe of permittees that 

would be covered under this permit, EPA is soliciting information on the numbers, types and 

sizes of entities that conduct pesticide application for each use pattern. Entities include those 

who decide that application of pesticides is necessary (for example, mosquito control districts, 

counties, irrigation control districts and other local governments) as well as those entities that 

apply the pesticides (for example, for-hire commercial applicators). 

Activities Covered 

This general permit provides coverage for the following four use patterns: mosquito and 

other flying insect pest control; aquatic weed and algae control; aquatic nuisance animal control; 

and forest canopy pest control. 

EPA believes that these four use patterns would encompass the majority of pesticide 

applications that would result in point source discharges to waters of the U.S. This draft permit 

Formatted: Automatically adjust

right indent when grid is defined,

Space Before: Auto, After: Auto,

Adjust space between Latin and Asian

text, Adjust space between Asian text

and numbers

Deleted: After research and discussions 

with potentially affected groups, 

Deleted: . EPA has opted not to 
Edits in Response to OMB Comments

33 

would not provide coverage for other pesticide use patterns; however, EPA is still exploring 

whether other use patterns should be included. Specifically, EPA has not included most use 

patterns that target land-based pests and flying pests that are not near or over water. EPA is 

seeking comment on whether certain pesticide application activities targeting such pests may 

involve unavoidable point-source discharges to waters of the United States. EPA is also 

requesting comment on whether this general permit should provide coverage for any such 

activities, and if so, which activities should be covered. If, after considering comments, EPA 

expands coverage of this permit, the effluent limitations for the additional use patterns would 

likely be similar to what is being proposed in this draft permit. Due to the likely similarities 

between such additional activities and the associated effluent limitations, EPA expects that there 

will not be a need to re-propose the general permit to cover such additional activities in the final 

permit. In this case, entities in the newly included use pattern(s) could seek coverage under this 

general permit. Any point source discharges of pollutants to waters of the United States not 

covered by this or another general permit will need coverage under an individual permit. EPA 

also requests comments on how the effluent limitations provided in this permit could apply to the 

additional activities and whether there are additional or different effluent limitations that might 

be appropriate for such activities. EPA is also soliciting comments on whether it should exclude 

from coverage under the general permit all discharges to waters that are impaired generally for 

“pesticides” rather than only excluding from coverage those discharges to waters that are 

impaired for the specific pesticide being applied or its degradates. 

Limitations on Coverage 

Deleted: under this permit; other 

discharges would require coverage under 

a different NPDES permit. While other 

use patterns are not covered by this 

proposed general permit, the existence of 

this general permit option does not by 

definition obviate the possibility that an 

individual permit would be necessary if 

these or any other type of pesticide 

applications result in point source 

discharges to waters of the US. EPA 

would like comment on whether 

Deleted: in

Deleted: . 

Deleted: new 

Deleted: have similar effluent 

limitations 

Deleted: 

Deleted: in any

Deleted: if any

Deleted: are included 

Deleted: and 

Deleted: that 

Deleted: identified

Deleted: . 

Deleted: expanded coverage. 
Edits in Response to OMB Comments

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 This permit does not authorize coverage for certain discharges to pesticide-impaired 

waters and Tier 3 waters. Specifically, this permit does not authorize discharges of pesticides or 

their degradates to waters impaired for those specific pesticides or degradates. Additionally, this 

permit does not authorize discharges to outstanding national resource waters (Tier 3 waters). 

EPA would like input on whether it is appropriate to exclude these discharges from coverage 

under the general permit or if there are conditions that could be added to the general permit that 

could adequately address these situations. 

Sharing of Responsibilities 

This permit establishes requirements to control discharges from the application of 

pesticides that are specific to the discharge regardless of who is defined as the “operator” of the 

discharge. An “operator” is defined as that entity required under the NPDES program to obtain 

permit coverage for point source discharges of pollutants to waters of the United States. As 

written, this permit acknowledges that in many instances, the entity making the decision to apply 

pesticides is different than the entity that actually applies the pesticides (for example, a mosquito 

control district may decide that a pesticide application is needed and enter into a contract with a 

for-hire commercial applicator to perform the application). EPA, however, defines both of these 

entities as “operators.” EPA drafted this permit with the intent of clarifying which entity is 

expected to implement which permit conditions with the goal of minimizing duplication of effort 

while still providing flexibility for multiple operators to decide how compliance with permit 

conditions will be achieved. Generally, the entity making the decision to apply pesticides is 

responsible for complying with provisions of the permit leading up to the actual application of 

the pesticide (such as IPM identifying and assessing the pest problem) and any activities after 
Edits in Response to OMB Comments

35 

application of the pesticide. The applicator of the pesticide, if different, is responsible for those 

permit requirements that occur during or directly related to the actual application of the pesticide 

(such as maintaining and calibrating equipment). EPA is interested in whether the approach in 

this draft general permit is clear and if it provides a logical approach to the expected sharing of 

responsibilities. 

 

Notices of Intent 

 In general, as set forth in 40 CFR 122.28(b)(2), dischargers seeking coverage under a 

general permit must submit a notice of intent (NOI) to be covered by the permit. However, 40 

CFR 122.28(b)(2)(v) provides EPA the authority to cover entities under a general permit without 

requiring the submission of an NOI. In Part 1.2.2 of this permit, EPA proposes annual treatment 

area thresholds for the submission of NOIs. EPA is proposing this NOI framework to: (1) obtain 

NOIs from the largest dischargers, (2) eliminate duplicative reporting by multiple operators for 

an individual discharge, and (3) clarify the type of entity responsible for submitting the NOI. 

Operators that do not exceed an annual treatment area threshold are covered automatically under 

this permit without the need to submit an NOI. EPA is interested in feedback on whether this 

NOI framework strikes an appropriate balance between capturing information on discharges 

from the largest pesticide application activities and avoiding the imposition of unreasonable 

burdens on operators whose pesticide application activities affect smaller areas. EPA is also 

interested in information on whether the size of the thresholds is appropriate, and whether they 

result in obtaining NOIs from an appropriately targeted set of large dischargers. 

If an NOI is required, it must contain either a map or narrative description of the area and 

the waters of the United States and the pesticide use patterns for which permit coverage is being 

Deleted: set 

Deleted: established

Deleted: the largest
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36 

requested for the duration of the permit. Operators can identify specific waters or request 

coverage for all waters within the area for which they are requesting permit coverage. EPA is 

interested in feedback on whether this approach adequately captures the areas and associated 

waters of the United States for which permit coverage is being requested. 

Technology-Based Effluent Limitations 

 This draft permit contains narrative technology-based effluent limitations for the class 

and scope of activities and operators covered under this permit. After much research and 

discussion with experts, EPA determined that the effluent limitations identified in Part 2 of the 

permit, including IPM practices for operators that will exceed an annual treatment area threshold 

(i.e., those who must submit an NOI) should be included in this general permit. Since this is the 

first general permit for these types of discharges, EPA specifically requests comments on this 

section for the following questions: 

1. What types of government agencies/departments have the responsibility or are mandated 

to perform pest control? Are they already required to implement IPM? What specific 

IPM practices do they already perform? 

2. Are there private commercial entities that apply pesticides below the threshold that 

should be expected to implement IPM? If so, who are these and what IPM practices 

should they be required to implement? Are any private commercial entities that apply 

pesticides below the threshold currently implementing IPM practices? Is the use of 

annual treatment area thresholds an appropriate mechanism for establishing technologybased effluent limitations and if so, are the thresholds provided in the draft general permit 

appropriate? 
Edits in Response to OMB Comments

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3. Are there more specific IPM procedures that we can incorporate into this permit to better 

define IPM expectations of permittees above or below the threshold? Would an EPAdeveloped IPM template be practical and help? If so, what should be included? Are 

there industry-specific templates already available? 

4. Will requiring IPM of small public or private entities not already required to implement 

IPM under this draft general permit force them to go out of business or choose not to 

spray at the expense of public health or the environment? 

5. How much do the IPM procedures required in this permit cost? 

6. Are entities above the thresholds already doing these practices? If not, what would be the 

consequences/costs of these requirements? 

Water Quality Based Effluent Limitations 

EPA is soliciting comment on the water quality based effluent limitations in this 

proposed permit, and whether other parameters or narrative requirements would be appropriate. 

Monitoring 

EPA is requesting comment on the value, feasibility and safety of visual monitoring 

during application and of post application surveillance monitoring. 

EPA is considering having the largest of the large applicators provide ambient sampling 

data. How large would be appropriate for such a requirement? Should these data be used to 

Deleted: during 

Deleted: is
Edits in Response to OMB Comments

38 

enhance the cycle of information EPA will use in assessing the selected BMPs rather than 

compliance? What types of monitoring requirements are appropriate for each of the four 

pesticide use categories covered under this permit? What would be the cost of monitoring? 

What are the best monitoring methodologies when sampling for the residues of chemical 

pesticides? What sampling approaches accommodate issues of safety and accessibility? What 

timing and frequencies are best in these situations? 

Annual Reports 

Any operator required to submit an NOI is also required to submit an annual report that contains, 

among other things, a compilation of pesticides applied, quantities applied, locations where 

pesticide applications were made during the previous calendar year, and information on any 

adverse incidents or corrective actions resulting from discharges covered under this permit. The 

Agency is interested in comment on the scope of operators required to submit annual reports and 

the type, level of detail, and practical utility of the information being requested. 

E. Permit Appeal Procedures

 Within 120 days following notice of EPA's final decision for the general permit under 40 

CFR 124.15, any interested person may appeal the permit in the federal Court of Appeals in 

accordance with Section 509(b)(1) of the CWA. Persons affected by a general permit may not 

challenge the conditions of a general permit as a right in further Agency proceedings. They may 

instead either challenge the general permit in court, or apply for an individual permit as specified 

at 40 CFR 122.21 (and authorized at 40 CFR 122.28), and then petition the Environmental 

Deleted: programs

Deleted: ,
Edits in Response to OMB Comments

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Appeals Board to review any conditions of the individual permit (40 CFR 124.19 as modified on 

May 15, 2000, 65 FR 30886). See also 40 CFR 23.12 for filing notice of judicial review 

requirements. 

IV. Economic Impacts of the Pesticides General Permit

As a result of the Sixth Circuit Court decision on EPA’s 2006 NPDES Pesticides Rule, 

operators of discharges to waters of the U.S. from the application of pesticides now require 

NPDES permits for those discharges. EPA expects that costs associated with complying with the 

effluent limits under this general permit will be similar to costs under individual permits for 

similar activities; however, administrative costs for both EPA as the permitting authority and 

operators as permittees are expected to be lower under this general permit than under individual 

permits. In other words, the general permit itself can be expected to reduce rather than increase 

costs for permittees as compared to the baseline of individual permitting.

EPA expects the economic impact on covered entities, including small businesses, to be 

minimal. Since EPA is developing a general permit in the absence of existing national Effluent 

Limitations Guidelines or Best Professional Judgment (BPJ) effluent limitations in other 

NPDES-issued permits, the Agency performed an economic impact analysis of the Pesticides 

General Permit for the purpose of examining the economic achievability of complying with the 

technology-based effluent limitations embodied in the permit. The economic impact analysis is 

included in the administrative record for this permit. Based on that analysis, EPA expects that 

there will be minimal burden on entities, including small businesses, covered under the general 
Edits in Response to OMB Comments

40 

permit. EPA is asking for additional information during the public notice of the draft permit and 

will update the analysis as appropriate for the final permit.

V. Executive Order 12866 

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the Agency must 

determine whether the regulatory action is “significant” and therefore subject to OMB review 

and the requirements of the Executive Order. The Order defines “significant regulatory action” 

as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of 

$100 million or more or adversely affect in a material way the economy, a sector of the 

economy, productivity, competition, jobs, the environment, public health or safety, or State, 

local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise 

interfere with an action taken or planned by another agency; (3) materially alter the budgetary 

impact of entitlements, grants, user fees, or loan programs or the rights and obligations of 

recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the 

President's priorities, or the principles set forth in the Executive Order. It has been determined 

that this is a significant regulatory action under the terms of EO 12866 and it was therefore 

submitted to OMB for review. A summary of substantive changes made during OMB review, 

including an identification of those made at the suggestions of OIRA, is included in the docket. 

 

Authority: Clean Water Act, 33 U.S.C. 1251 et seq. 

Deleted: OMB requested review of 

this general permits under item (4) above 

in that it raised novel, new issues

Deleted: V. Regulatory Flexibility Act

Deleted: ¶

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare a 

regulatory flexibility analysis of any rule 

subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act (APA) or 

any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions.¶

¶

The APA defines two broad, mutually 

exclusive categories of agency action—

“rules” and “orders.” Its definition of 

“rule” encompasses “an agency statement 

of general or particular applicability and 

future effect designed to implement, 

interpret, or prescribe law or policy or 

describing the organization, procedure, or 

practice requirements of an agency * * *. 

” APA section 551(4). Its definition of 

“order” is residual: “a final disposition * 

* * of an agency in a matter other than 

rule making but including licensing.” 

APA section 551(6) (emphasis added). 

The APA defines “license” to “include * 

* * an agency permit * * *.” APA section 

551(8). The APA thus categorizes a 

permit as an order, which by the APA’s 

definition is not a rule. Section 553 of the 

APA establishes “rule making” 

requirements. The APA defines “rule 

making” as “the agency process for 

formulating, amending, or repealing a 

rule.” APA section 551(5). By its terms, 

then, section 553 applies only to “rules” 

and not also to “orders,” which include 

permits.¶

¶

Issuance of an NPDES general permit 

is not subject to rulemaking requirements, 

including the requirement for a general 

notice of proposed rulemaking, under 

APA section 553 or any other law, and is 

thus not subject to the RFA requirements.¶

¶

 
Edits in Response to OMB Comments

41 

Ira W. Leighton, 

Deputy Regional Administrator, EPA, Region 1 

Dated: May 26, 2010. 
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Barbara A. Finazzo,

Director, Division of Environmental Planning and Protection, EPA Region 2 

Dated: May , 2010. 
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43 

Carl-Axel P. Soderberg, 

Division Director, Caribbean Environmental Protection Division, EPA 

Region 2 

Dated: May , 2010. 
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Jon M. Capacasa, 

Director, Water Protection Division, EPA Region 3 

 Dated: May 26, 2010. 
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45 

James D. Giattina, 

Director, Water Protection Division, EPA, Region 4 

 Dated: May 26, 2010. 
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Tinka G. Hyde,

Director, Water Division, EPA Region 5 

Dated: May 26, 2010. 
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William K. Honker, 

Deputy Director, Water Quality Protection Division, EPA Region 6 

 Dated: May 26, 2010. 
Edits in Response to OMB Comments

48 

Glenn Curtis, 

Chief, Wastewater and Infrastructure Management Branch, EPA Region 7 

 Dated: May 26, 2010. 
Edits in Response to OMB Comments

49 

Stephen S. Tuber, 

Assistant Regional Administrator, Office of Partnerships and Regulatory Assistance, EPA 

Region 8 

Dated: May 26, 2010 
Edits in Response to OMB Comments

50 

Alexis Strauss, 

Director, Water Division, EPA Region 9 

 Dated: May 26, 2010. 
Edits in Response to OMB Comments

51 

Michael A. Bussell, 

Director, Office of Water and Watersheds, EPA Region 10 

 Dated: May 26, 2010.