1005 E Street SE · Washington, DC 20003 

Tel: 202-546-5722 · Fax: 202-546-5726 · www.agaviation.org 

December 1, 2009

Allison Wiedeman, Branch Chief 

Office of Water 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N. W. 

Mail Code: 4203M 

Washington, DC 20460 

National Agricultural Aviation Association’s comments on: 

NPDES Prototype General Permit for Aquatic Pesticide Applications 

The National Agricultural Aviation Association (NAAA) appreciates the EPA sharing its initial 

proposed policy direction on Clean Water Act permitting of discharges from pesticide applications 

via webcast on Oct. 7. NAAA has analyzed the document detailing the Agency’s permitting 

proposal and has a number of questions and concerns that are documented in this letter. 

NAAA represents the interests of small business owners and pilots licensed as commercial 

applicators that use aircraft to enhance food, fiber and bio-fuel production, protect forestry and 

control health-threatening pests. Furthermore, through its affiliation with the National Agricultural 

Aviation Research & Education Foundation (NAAREF), the NAAA contributes to research and 

educational programs focused on enhancing the efficacy, security and safety of aerial application. 

NAAA represents more than 1,500 members in 46 states. 

NAAA appreciates the opportunity to provide EPA input about its initial permit proposals for 

pesticides made over and near water and hopes that the agency will take into account the questions 

and points raised in the following comments as it works to develop a draft permit system for public 

comment. 

NAAA would like to receive more specifics and clarity from the Agency about its Pesticides 

General Permit (PGP), namely who specifically will be required to apply for and comply with the 

new regulations. A primary concern NAAA has with proposals requiring permits for pesticide 

applications made over or near water is an entity other than the entity authorizing the application 

having to file a Notice of Intent (NOI) to fall under the Pesticide General Permit (PGP). This is a 

duplicative requirement, unnecessary and seems will only result in causing additional paperwork 
Comments to EPA on Preliminary NPDES Permit Information 

December 1, 2009 

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burdens for regulatory agencies. Another great concern NAAA has is that requiring entities to 

apply for an NOI under the PGP is that it will open up pesticide applicators 

to citizen action lawsuits. NAAA’s question to the EPA in regards to PGPs is if an entity 

authorizing an application files a Notice of Intent (NOI) to fall under a PGP, and he is not denied 

from working under the PGP, is that authorizing entity (and the applicator if he is conducting work 

for an authorizing entity) then immune from citizen action lawsuits since they fall under the permit? 

Without more specific clarification from the Agency on the terms, phrases and requirements 

included in the PGP, activist groups could pursue their own interpretations of this language via 

litigation. NAAA believes EPA should very clearly and strongly state in the preamble and rule that 

“pesticide applications to, over, or near waters of the U.S. are fully authorized if entities 

authorizing the application and the applicators working for those entities comply with the 

provisions of the label and the general permit.” 

Below are additional questions, issues and or comments NAAA raises to the EPA regarding its 

webcast proposal—the bolded and quoted text is taken from the Oct. 7 EPA Webcast document 

followed by NAAA’s comments in response: 

Question/Issue: “The NOI filer, in most cases, would be the organization responsible for 

deciding to conduct the pesticide applications. However, any applicator would need to file an 

NOI if the applicator projects that it will treat more than X water-acre treatments per year 

(or permit cycle?) for people who did not need to file an NOI individually,” and “The 

discharger would be required to submit updated information to perform operations different 

from those identified in the NOI.” 

NAAA agrees with EPA that the entity responsible for deciding to conduct the pesticide application 

should be the NOI filer, rather than the person performing the applications. NAAA strongly urges 

that in all cases the person (e.g., the landowner or the mosquito abatement district) making the 

decision to have a pesticide application made be the sole entity to submit the NOI. The landowner is 

in an optimal situation to file such information, as they are completely familiar with the land, 

surrounding waterways, pests present, prior treatments, materials and quantities of materials to 

apply, etc. This is also important so as not to further, unnecessarily burden the regulatory agencies, 

including the EPA, with issuing PGPs. The Agency’s own projections are that approximately 5.6 

million pesticide applications will fall under the Clean Water Act permitting of discharges from 

pesticide applications. Including two different entities—the entity authorizing the application and 

the entity making the application—to obtain permits for the same application will create additional 

burdens on already strained regulatory agencies and provide no additional protection to waters. 

Question/Issue: “Permitting authorities use both Individual Permits and General Permits to 

control discharges to waters of the United States.” 

What is an example of an entity that would need an individual permit? Will there be any scenarios 

where a pesticide application will require an individual permit? NAAA would like specific 

information on what type and level of activity a general permit will cover. Will it be for multiple 

applications during a specific time span and if so what number defines multiple applications and 

what is the duration of the time span? Will it be determine by the land area covered and if so what is 

the size of the land area? To reiterate the last point, will it cover both the entity requesting the 

application and the applicator if the applicator is working for the entity authorizing the permit?

NAAA believes that it’s the entity authorizing the application that is responsible for negotiating the 
Comments to EPA on Preliminary NPDES Permit Information 

December 1, 2009 

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individual permit, paying its permitting fees, and having it in hand when he hires the aerial 

applicator to make the application. 

Question/Issue: “Permits are written based on a permit writer’s Best Professional Judgment 

(BPJ); judgments may differ, so how each permit satisfies the CWA requirement may differ 

in some respects.” 

What is an example of “best professional judgment?” What kind of rationale and requirements will 

be used when deciding to give a general permit? Will EPA issue general guidelines for BPJ? This 

leaves the door open for judgments and permitting requirements to vary widely when EPA 

clarification on the details is sparse. To avoid unfair judgments being determined by rogue permit 

writers, more details from the Agency should be provided. 

Question/Issue: “Permit must identify area of coverage, sources covered and other info.” 

NAAA requests more clarity on these points. How is this “area of coverage” defined, is it latitudinal 

and longitudinal coordinates? What does “sources covered” refer to? The type of application? The 

chemical being used? Lastly, it is stated that the permit must identify “other info.” NAAA feels that 

this is too vague, and would like more specific information from the agency on what exactly 

constitutes “other info.” NAAA would support a permit that covers a specific parcel of land and all 

pesticide applications during a five-year duration made on that parcel. 

Question/Issue: “Citizens have the right to challenge NPDES permits.” 

If a permit is issued and someone wishes to challenge the NPDES permit issued, who is that 

challenge addressed to: the state entity issuing the permit, the permit holder or the applicator 

working under the entity issued the permit? NAAA believes that the permit holder and the 

applicator should be protected from citizen action suits if the application is made after an NOI has 

been filed and it is determined the entity authorizing the application (and the applicator that is 

contracted to perform the application) falls under the permit.

Question/Issue: “Considerations for Permit Development – Consists of an efficient and 

effective process; uses resources effectively.” 

NAAA believes that the NPDES permitting process is not an efficient and effective use of federal 

and state funding during this critical economic time. It is highly questionable as to whether some 

states will be able to keep up with the influx of permitting requests being submitted and entities 

responsible for submitting requests for permits will be facing delays in obtaining permit approval 

because of the imposed permit requirements that permitting agencies must review coupled with 

staffing challenges they will face as a result of state budget issues that are facing the country. 

Again, NAAA believes that the process of applying for and waiting to receive an NPDES permit 

will be overly burdensome for EPA, where it is required to issue permits, state permitting agencies 

and the other stakeholders that are required to obtain the permits. 

Question/Issue: “The application of pesticides to control pest that are present over waters of 

the United States, including near such waters...” require an NPDES permit. 

NAAA requests that EPA be more specific as to which applications will be considered applications 

made “near” water. Examples need to be given, as well as clearer guidelines for determining what is 

considered “near” water. Should one assume that a permit is needed for applications made directly 

to a crop that is adjacent to water but no buffers are present? Likewise, is it safe to assume that if a 

buffer area of uncultivated soil is present no permit is required? How is one to gauge the proper size 
Comments to EPA on Preliminary NPDES Permit Information 

December 1, 2009 

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of uncultivated soil between a crop and water to determine if he is applying near water where the 

permit rules come into place? More detail is needed to ensure proper compliance with this aspect of 

the rule. 

The aerial application industry takes every precaution to ensure the on-target application of crop 

protection products. The industry utilizes numerous stewardship programs and technological 

developments to further ensure these on-target applications. 

One industry stewardship program that receives EPA’s financial support and endorsement is the 

Professional Aerial Applicators’ Support System, known as the PAASS program. PAASS is 

presented to approximately 1,800 aerial applicators throughout the country each year with 

curriculum on new technologies to mitigate aerial drift. Insurance companies provide discounts for 

aerial applicators that participate in the PAASS program, and states provide CEU credits to those 

attending the program that are used to renew their commercial pesticide licenses 

One of the stated goals of the PAASS program is to reduce incidents of off-target drift by reaching a 

large audience of our nation’s aerial applicators. The PAASS program’s success in doing so is 

reflected in data collected through surveys conducted by the Association of American Pesticide 

Control Officials (AAPCO). AAPCO conducted pesticide drift surveys in 1999, which covered the 

years 1996-1998, and another survey in 2005, which covered the years 2002-2004. The first survey 

showed that the confirmed aerial drift complaints for the years 1996, 1997 and 1998 were 342, 280 

and 378, respectively. This yields an annual average of 333 complaints for the period covered by 

the survey. The second survey indicated that the years 2002, 2003 and 2004 resulted in 244, 237 

and 260 complaints, respectively. The annual average for these years is 247. A comparison of these 

surveys indicates a decrease in the three-year average of confirmed aerial drift complaints from 333 

in the 1999 survey to 247 in the 2005 survey—a decrease of 26 percent. The PAASS program began 

after the 1998 aerial application season, and the corresponding decrease in confirmed drift incidents 

indicates a definite improvement in terms of mitigating drift within the industry through the use of 

education and technology, rather than increased restrictions. 

Operation S.A.F.E. is another safety and education initiative within the agricultural aviation 

industry. At the backbone of Operation S.A.F.E. are the Professional Application Analysis 

Clinics—or Operation S.A.F.E. Fly-Ins. During these fly-ins, pilots participate in an NAAAapproved swath analysis and equipment examinations under the direction of an authorized analyst. 

At these sessions, which are usually hosted before the flying season begins, agricultural aviation 

operators’ aircraft application equipment are tested and calibrated by S.A.F.E. technicians to ensure 

application efficiency and to mitigate crop protection product drift. Operation S.A.F.E. clinics are 

conducted nationwide to a large constituency of ag pilots and operators. This program offers 

substantial advantages to the operator, his customers and the producers of chemicals applied by air. 

These advantages are found in the economy of operation and application, as well as in increased 

safety and reduced health and environmental concerns.

State-of-the-art tools like AIMMS have also allowed aerial applications to be more precise and 

efficacious than ever. AIMMS—which stands for Aircraft Integrated Meteorological Measurement 

System—is a high-tech application system being used by a number of agricultural aviators to ensure 

more targeted and efficient application. AIMMS adds an additional layer to the precision ag system 

by incorporating a real-time onboard wind speed and direction measurement system. The 
Comments to EPA on Preliminary NPDES Permit Information 

December 1, 2009 

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atmospheric data collected by AIMMS is then synchronized with the aircraft’s onboard GPS unit. 

This enables the variable rate controller to apply product while taking into account outside wind 

speed and direction, thus resulting in an even more precise application. 

Cutting-edge technologies and tools like AIMMS are continually being developed and tested at the 

USDA-ARS Aerial Application Technology Program in College Station, Texas. 

Researchers at the ARS facility have been working closely with the EPA’s Office of Pesticide 

Programs in developing a policy to test drift reduction technologies (DRTs) and reward aerial 

applicators for using DRTs by mitigating buffers when tested and approved DRTs are in use. 

 

The combination of these stewardship programs and continuing technological advancements has 

allowed the aerial application industry to make great strides in terms of more efficacious 

applications, and the industry can only improve from here. 

Question/Issue: “Emergency situations that require pesticide application be performed in 

advance of an NOI submission, provided all other conditions are met in the permit.” 

NAAA fully supports this provision of enabling an entity authorizing the application to submit an 

NOI after an emergency application is made. Pesticide applications are often required in a quick 

and timely manner, and timeliness is one of the key benefits of aerial pesticide applications because 

of the speed and efficiency this method of application provides. Aerial application is by far the 

quickest method of application available. 

Even a seemingly minimal delay in treatment can result in the total devastation of a crop due to a 

pest infestation or outbreak of fungus or disease. It is vital that applicators are able to perform 

emergency applications when necessary in order to prevent crop loss and threats to public health 

without the threat of being penalized for failing to obtain a permit beforehand. 

Being able to file an NOI after the application is made will address these types of “emergency” 

applications. That being said, NAAA has questions about this provision. To reiterate an earlier 

question about this proposed policy: are entities authorizing an application—and/or the parties 

responsible for making an application under an entity authorizing the application’s NOI—immune 

from the citizen action suits, and if so, would they also be immune if an NOI was filed after an 

application but before the “emergency” deadline but after a potential complaint about the 

application had been made? In addition, what constitutes an emergency application? What may 

constitute an emergency application to a farmer or a mosquito control agency might be different 

from that of a regulatory official. To provide better protection for entities authorizing an 

application and also for those filing an NOI more clarification to eliminate any question as to what 

an emergency application should be provided. 

Question/Issue: “A person filing an NOI would be covered starting 10 days after the receipt of 

a complete and accurate NOI form by the appropriate permitting authority (provided the 

permitting authority does not delay authorization to further address the NOI). 

NAAA believes that an entity filing for an NOI should be covered immediately, not after 10 days. 

The reason for this is that pesticide applications are often required to be made in a quick and timely 

manner. Any delay can result in the devastation of a crop or a pandemic to public health due to a 

pest infestation. Because no definition exists as to what makes up an emergency pest application 
Comments to EPA on Preliminary NPDES Permit Information 

December 1, 2009 

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(see previous response), it is important for entities authorizing applications (and the applicators that 

are conducting work under these entities) filing an NOI to be covered immediately, until they hear 

otherwise, that they are making an application within the confines of the PGP. 

Question/Issue: “The NOI should collect useful information from appropriate entities.” 

NAAA requests that the EPA provide more information defining what is considered “useful 

information” as well as how. 

Question/Issue: “PGP effluent limits would include provisions to minimize pesticide 

discharges, including using non-chemical alternatives. To the extent feasible, the permittee 

would identify/assess the pest problem, consider if source reduction/habitat modification may 

significantly reduce sources, follow appropriate procedures for pesticide use (calibrate, 

maintain, etc.), educate.” Minimizing pesticide discharges, calibrating and maintaining application 

equipment is all standard, common practice for the pesticide user community and aerial application 

industry. These practices are emphasized throughout NAAA’s PAASS and Operation S.A.F.E. 

programs, as detailed above. Chemicals are expensive to use for farmers, mosquito districts, and 

other user entities and state enforcement and insurance premiums are high for those not properly 

caring for their equipment. As a result adding these additional provisions to monitor these 

conditions is duplicative and unnecessary because it is already conducted and provides another 

regulatory requirement for a permittee to document and a regulator to check for when it is already 

being done. 

NAAA believes it is unclear as to what the Agency is requiring when it asks a permittee to 

“educate” and to “consider if source reduction/habitat modification may significantly reduce 

sources” and requires more clarification and details from the Agency on its intent on this matter. 

NAAA also reiterates the importance of requiring that the entity authorizing the application be the 

sole entity responsible for submitting the NOI since they are most intimate with educational 

activities, habitat modification activities, etc. being conducted on the land requiring the application. 

Question/Issue: “EPA would require permittees to conduct post-application surveillance to 

identify, record and report adverse effects, immediately implement corrective actions, and 

report these to EPA.” 

To reiterate an earlier comment, NAAA believes that the entity authorizing the application is in the 

best position to conduct post-application surveillance since that entity will typically be the 

landowner or mosquito abatement district that is familiar with the land and the surrounding natural 

resources and knowledgeable and have free access to know what to check. To require an applicator, 

who is not the owner of property he was authorized to make an application to, may actually require 

him to trespass and put him in jeopardy of violating one’s private property to comply with this rule. 

Furthermore, it is a tremendous resource concern for an applicator to have to follow up with this 

requirement and duplicative since the entity authorizing the application is already conducting post 

application surveillance. 

One question NAAA has about this requirement is how long after an application would surveillance 

be required? This would be helpful information for the permittee and the permitting agency to know 

in order to properly follow up on the requirement. 
Comments to EPA on Preliminary NPDES Permit Information 

December 1, 2009 

Page 7 of 8 

Question/Issue: “If at any time the permittee becomes aware, or EPA determines, that a 

discharge causes or contributes to an exceedance of applicable water quality standards, the 

permittee must take corrective actions and report the corrective actions to EPA.”

NAAA believes it would be of use to the permitting agencies and permittees to define examples of 

corrective actions in the event that a permittee causes an “exceedance” discharge to applicable 

water quality standards. 

Question/Issue: “A ‘visual’ monitoring approach based on narrative WQBELs may be 

appropriate for assessing compliance with permit conditions. Routine visual monitoring: spot 

checks for signs of adverse effects on non-target organisms during efficacy checks.” 

To reiterate earlier comments, NAAA believes that the entity authorizing the application should be 

the sole permittee because they are the parties most familiar with the area in which the application is 

made and most likely have access to the application area to be able to check for signs of adverse 

effects on non-target organisms. 

An additional question NAAA has about the EPA water permitting policy for pesticides made over 

or near water is: “Are pesticide applications made to certain crops such as rice and cranberries, 

when the crops themselves are in water exempt since, it seems clear, they fall under the Clean 

Water Act exemptions for agricultural stormwater runoff and irrigation return flow? 

It is important for EPA to state in its water permit policy for pesticides if an applicator is exempt 

from an NPDES permit if he is conducting work for an entity authorizing an application that 

received a permit (or filed an NOI) so that there is legal protection for these entities from frivolous 

lawsuits. NAAA requests when the Agency finalizes its policy it is clear on this issue along with 

the irrigation exemption above. 

In addition, NAAA requests clarification from the Agency as to the parameters of a permit. For 

example, is it for any and all legal pesticide applications made over a clarified area for a certain 

amount of time or is just for a single application over a clarified area of land? To ensure that the 

permittee is in full compliance these details on duration, number of applications, geographical 

parameters, etc. are important to clarify. 

NAAA believes it is important for the Agency to work closely with the aerial application industry 

on this issue in order to make the pesticide permitting process more efficient for all entities 

involved. 

NAAA strongly urges the Agency to consider the unduly and unnecessary burdens aerial applicators 

could face under this proposed permit system which will provide no environmental benefit and only 

levy an administrative burden to applicator and regulatory agency alike if it is determined that 

applicators must fall under the permitting process. Aerial applicators already regularly comply with 

mandated recordkeeping and reporting requirements at the state level and as required by the Federal 

Aviation Regulations—14 CFR Part 137 for Agricultural Aircraft Operations (Subpart D). These 

requirements (Part 137.71) include, for one year, keeping a list of 

names and addresses for each person for whom agricultural aircraft services were provided, the date 

of the service, the name and quantity of the material expensed, etc. Additional requirements under 

the Clean Water Act serve no further purpose and do not provide additional environmental 

protections. An entity authorizing the application is already providing all of this information. 
Comments to EPA on Preliminary NPDES Permit Information 

December 1, 2009 

Page 8 of 8 

It is important for the Agency to keep in mind that aerial application operations are typically small 

businesses that consist of just a few employees. In some cases, the owner of the operation may serve 

as the pilot, mixer/loader and comptroller. Requiring them to also file an NOI in certain scenarios 

will be a tremendous and unnecessary paperwork burden, while offering no additional 

environmental protection. 

NAAA has attempted to determine the number of applications that could be covered under this 

expansion of NPDES permitting requirements. Our records show there are 1,625 aerial application 

operators in the U.S. According to a pesticide use survey NAAA conducted in 2004, there are 2.2 

operating aircraft per operation. Depending on the target application site, the number of applications 

made in a given season to a particular crop, landsite, etc. is between three and six. The survey 

shows that eight percent of aerial applicators treat forests, 25 percent treat rice, 0.4 percent treat 

mosquitoes, 0.4 percent treat public health acres and 0.5 percent treats rights-of-way. A typical 

aerial applicator has, on average, approximately 100 customers. Using these numbers—(1,625 x 

2.2 x (3+6/2) x 100) = 1608750; (1608750 x .08) + (1608750 x .25) + (1608750 x .004) + (1608750 

x .004) + (1608750 x .005)—it’s estimated that 551,801.25 aerial applications will require NPDES 

coverage. This expansive number of permits will surely be a profound burden on state and federal 

regulators, not to mention those entities responsible for filing the NOIs. 

NAAA is concerned that this permitting system will encumber aerial applicators’ ability to provide 

an important service to America’s farmers in order to feed, clothe and fuel the world. Aerial 

application is advantageous for several reasons, including speed, efficacy and unobtrusiveness to 

the crop and topsoil. The aerial application industry is responsible for 25 percent of commercial 

applications and treats at a minimum more than 77 million cropland acres and many more acres 

when considering forestry, pasture, public health and fire and post fire seeding acres. 

Thank you for considering our comments and please do not hesitate contacting us with any 

questions or additional information you might need on this issue of great, great importance to the 

aerial application industry. 

Sincerely, 

Andrew D. Moore 

Executive Director