MEMORANDUM

SUBJECT: Pesticide General Permit (PGP) for Point Source Discharges to Waters of t he United

States from the Application o f Pesticides : Tribal Consultation Summary FROM: Prasad Chumble

Rural Branch Water Permits Division, 4203M TO: The File I. Background The Environmental Protection Agency (EPA) has developed a National Pollution Discharge Elimination System (NPDES) pesticide general permit (PGP) for point source discharges from the application of pesticides to waters to the United States. This action was in response to a decision by the U.S. 6 th Circuit Court of Appeals in National Cotton Council, et al. v. EPA. In National Cotton Council, the court vacated EPA’s 2006 rule that said pesticides were not pollutants under the Clean Water Act and therefore NPDES permits were not required for applications of pesticide to U.S. waters. As a result of the Court’s decision, dischargers to waters of the U.S. from the application of pesticides will now require NPDES permits when the Co urt’s mandate takes effect, on October 31, 2011. This general permit will provide coverage for discharges where EPA is the NPDES permitting authority. The PGP covers operators who apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. This permit would not cover 1) non

-target spray drift, or 2) discharges of pesticides to waterbodies that are impai red for that pesticide. Agricultural runoff and irrigation return flows are exempt from permitting under the Clean Water Act and, thus, do not require CWA permits. This permit also does not cover, nor is permit coverage required, for pesticide applications that do not result in a point source discharge to waters of the U.S. such as terrestrial applications for the purpose of controlling pests on agricultural crops, forest floors, or range lands. The PGP requires permittees to minimize pesticide discharges, maintain and calibrate equipment, and monitor for and report any adverse incidents. Some permittees will also be required to implement pest management measures based on integrated pest management principles. Record

- keeping and reporting requirements will provide valuable information regarding where, when, and how much pesticides are being applied to waters of the U.S. Since the PGP applies to Indian Country lands, EPA has engaged in consultation and collaboration with tribal officials in the development o f the final permit consistent with Executive Order 13175.
II. Tribal Consultation and CollaborationEPA engaged in consultation with the tribes, both at the headquarters (EPA HQ) and regional level. At

the regional level, The EPA Regional Offices held several in

- person meetings, conference calls, and webinars, to ensure all interested tribal stakeholders were informed about EPA’s PGP. Similarly, EPA HQ engaged in the following communications with the tribes:

 Provided an overview of the draft PGP in May 2010, at the National Tribal Water Council Meeting.
 Held a conference call with the Tribal Pesticide Program Council on June , 3 , 2010 w h ere EPA HQ provided an overview of the draft PGP.
 Posted information about the draft PGP , including dates and loc ations of the PGP public meetings, hearing and webcast on the American Indian Environmental Office’s (AIEO) website in June 2010.
 Held a National Tribal Conference Call on July 15, 2010 were EPA HQ provided an overview of the draft PGP and accepted commen ts.
 Held a National Tribal Consultation Call on September 29, 2010 to discuss tribal issues and concerns. All tribal leaders were mailed invitation letters on August 30, 2010 to attend the consultation call. III. Response to Tribal Concerns and Comments from the September 29, 2010 National Tribal Consultation Call. 1. Do you need a permit for irrigation center pivot that walks directly over a canal or small ditch?

That situation will need a permit, if the canal or small ditch is a Water of the U.S. and the nozzles are not turned off as it goes into the stream. However, EPA did a lot of outreach to grower groups and agriculture department and bureaus that indicated that they have the capacity to turn the nozzles off over Waters of the U.S. so that direct contact with water is avoided. If direct contact with water of the U.S. is avoided then a permit is not needed. 2. How would the tribes get NOIs or get notification in cases where an operator does not meet the requirements and is operating without a permit? EPA is using eNOI system. This is a publicly available system that anybody can access. For small activities that don’t require an NOI, it is a challenge for EPA to provide information overview. For the PGP, the universe is huge therefore EPA has determ ined that it is going to draw a line between activities that are significant
. 3. Do individual small owners need NOI to spray ditch banks?The individual small owners that fall under the thresholds for that use pattern do not need to submit an NOI; howe ver, they are still required to meet the other requirements of the PGP.
4. If treatments happen at any time, how long does the NOI last and is there a limitation on the actual date of the NOI? NPDES permits cannot be issued for more than 5 years. An Operator will need to submit an NOI for the full range of activities for the full 5 year duration.
5. If a tribe has Treatment

- as -a State (TAS) and will do Section 401 Certification, when doing site i nspections, what authority will they be performed under, FIFRA or CWA? The PGP is an NPDES permit with falls under the CWA, therefore the inspection will be performed under the CWA authority. 6. Once an NOI is submitted, does EPA send a document back? A nd, are 401 certifications and ESA consultation done for every general permit issued? Once an NOI is submitted through the eNOI system, an electronic reply I sent back authorizing discharge. If the Operator does not have email, then a paper copy of acknowledgement will be sent. The NPDES PGP is a general permit and 401 certification and ESA consultation happen before this permit is finalized. There are no separate 401 certifications or ESA consultations once the PGP is finalized.
7. Do the tr ibes have to undergo ESA consultation and CWA 401 certifications (for TAS tribes) for every permit issued? The ESA consultation and 401 certification is done on the general permit and only once prior to the finalization of the PGP. No separate ESA consultation or 401 certification needs to occur for any permit issued under the PGP. 8. If a mosquito control agency submits an NOI to the state, would they then have to submit an NOI to EPA? The NOI will also need to be submitted to EPA for states where EPA is the permitting authority. 9. What considerations are given to cumulative effects? For tribes that are located downstream from areas where pesticides application occur and result in significant pesticide residues in tribal areas, can the tribes stop pesticides application upstream? This is a new program. There is not a lot of data on cumulative e ffects
. EPA will adjust the next permit based on the additional information gathered in this permit cycle.10. For a tribe that is mainly agricultural, with several operators and large areas, who would need

to submit NOIs? The responsibility to determine whether a PGP is needed lies with the individual growers. If they are applying directly to waters of the U.S. then a permit is needed. Operators can contact their Regional EPA offices to determine whether a permit is needed.
11. Is the Biological Evaluation available to the public for review?

EPA ’ s Biological Evaluation is available in the docket. 12. Ex plain comment opportunity for tribes.

EPA developed and implemented a three part process which included education and outreach; submission and discussion of tribal concerns; and documentation and answers to tribal concerns. The EPA Regional offices worked with their respective tribes to educate them on the PGP and inform them of the September 29, 2010 call where tribal comments and concerns could be addressed. The September 21, 2010 call provided the tribes with an opportunity to submit and discuss concerns and any relevant questions regarding the PGP. EPA documented the National Tribal Consultation Call and provided responses to all tribal comments. This documentation is made available in EPAs docket. 13. Several tribes express concern about pesticides that are being applied to areas where they affect foods. Traditional foods that people harvest and gather that are not part of agriculture. Aerial apps in forest canopies that affect acorns, seaweed, traditional medicinal plants, vineyards, basket weavers. Some pesticides also affect basket materials. Given that this is the 1 st permit of its kind, EPA will have a lot to learn about how the permit is working. EPA does not have enough data to know how it will address cumulative effects. The Agency plans on reviewing reports of applicators, so it will know what i s being applied where. It is also important to note that EPA pesticide programs risk assessment looks into acute and chronic effects on humans and other species which further determine label restrictions on exposures.