l Representing the Plant Science Industry l

1156 15th St. N.W. l Washington, D.C. 20005 l 202.296.1585 l 202.463.0474 fax l www.croplifeamerica.org

November 13, 2009

Ms. Allison Wiedeman

Rural Branch Chief

Office of Water

US Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Dear Ms. Wiedeman:

CLA has given considerable thought to the question of what threshold(s) should be 

applied to determine who should submit an NOI. In its October 7 national webinar, EPA made 

several statements about NOI submissions that we found instructive in our thinking. We have 

underlined those most relevant to our comments:

· The NOI should collect useful information from appropriate entities;

· EPA will consider the burden on regulators and the regulated entities;

· NPDES regulations allow general permit coverage without submission of an NOI in certain 

instances; 

· Avoidance of duplicative submissions;

· Challenging to identify large commercial or large public entity applications;

· Thresholds/triggers for an NOI could vary by use category;

· The NOI filer, in most cases, would be the organization responsible for deciding to conduct 

the pesticide applications, as opposed to the person performing the applications;

· However, an applicator would need to file an NOI if the applicator projects that it will treat 

more than X water-acre treatments per year (or per permit cycle?);

· A person filing an NOI would be covered starting 10 days after receipt of a complete and 

accurate NOI form by the appropriate permitting authority (provided the permitting authority 

does not delay authorization to further assess the NOI);

· Filing an NOI provides coverage for all future pesticide application [in that category in that 

geographic area] that occur during the life of the General Permit (5 years);

· For entities that are required to file an NOI based on the aggregation of water-acres treated 

in multiple applications, the NOI should be filed at any time the operator determines that it 

will exceed the trigger of X water-acres treatments per year (or per permit cycle);

· Applications performed before the operator determined that it would exceed the threshold 

would be covered without the NOI;

· Emergency situations that require pesticide application can be performed in advance of an 

NOI submissions, provided all other conditions are met in the permit;

· The NOI should identify the responsible entity and provide the following information: (a) 

contact information; (b) description of entity; (c) type of discharges (pesticide use patters); 

(d) receiving stream(s);
· The discharger would be required to submit updated information to perform operations 

different than those identified in the NOI.

We agree with EPA that the NOIs should be filed by the persons or organization(s) 

responsible1for deciding to conduct the pesticide applications, as opposed to the person(s) 

performing the application – especially if the purpose of the NOI is to collect information at the 

beginning of the 5-year life of the General Permit about responsible persons, anticipated 

pesticide use patterns, and likely receiving streams. 

Decision-making persons or entities should identify in their NOI submissions the names 

and contact information of for-hire pesticide applicator companies they plan to employ during 

the course of the permit cycle, and update that list as necessary from time to time with contact 

information on additional for-hire applicators as well as other key information that may have 

changed since the NOI submission. For those updates, EPA and States should look to the annual 

report submissions by decision-making persons or entities to be the vehicle to correct

inaccuracies in previously-submitted NOIs, or provide a simple on-line template for morefrequent amendments to their NOIs. 

For-hire applicators should not be required to file NOIs because: (a) Such NOIs would be 

duplicative of those submitted by decision-making persons or entities, provide no additional

useful information, and impose significant burdens on for-hire applicators to keep them updated; 

(b) Pesticide-application contracts that are let to for-hire contractors generally are time-sensitive, 

and it’s impracticable to expect for-hire applicators to wait 10 days or longer for EPA or State 

NOI processing to gain general permit coverage; (c) The NOI is expected to identify receiving 

waters, something only the decision-making persons or entities likely will know in advance; (d) 

Regulatory agencies likely will use the NOI submissions to help flag and intercept intended 

applications to newly-listed § 303(d waters or Tier III ONRWs. These are NOI data that EPA 

and States would want well in advance, and only the decision-making persons or entities would 

have access to well in advance. Furthermore, if the burden to identify § 303(d) waters or Tier III 

ONRWs falls to NOI submitters, then only the decision-making persons or entities would have 

the computer research resources to determine if intended applications might intersect such 

specialty waters; and (e)EPA has indicated that NPDES regulations allow for general permit 

coverage without submission of an NOI in certain instances. Those instances should include all 

actions of for-hire applicators.

The NOI-submission thresholds we envision would be permit-specific metrics designed 

to reflect both the potential for impact and the entity’s size and ability to manage the 

administrative burdens of the NOI process. Some decision-making persons or entities will be

government agencies with the potential to implement many of the systematic BMPs that EPA has 

described, such as consideration of alternatives and habitat modification, and those 

considerations could influence the submission of the NOI. Others will be private companies that 

own and/or manage forests, water conveyances, lakes and other water bodies, or other natural 

1 This would include any public or private organization as well as any person who arranges for an application of 

pesticide products covered by one of the new permits. Because this class likely includes many different forms of 

decision-makers, we refer to them here and throughout as “decision-making persons or entities.”
resources to which the pesticides would be applied, and their NOI submissions could integrate 

corporate business-plan decision making. 

NOI submission thresholds will provide EPA with critical information related to all 

substantial application activities and will reduce the burden on permit holders and regulatory 

entities where smaller activities with lower impact are at stake. Such thresholds also could be 

unique to each pesticide use covered by the general permit(s), and subdivided below those broad 

permit categories as warranted. For example, within the rights-of-way maintenance pesticide-use 

category, the maintenance of roads, irrigation/drinking water canals, pipelines, recreational 

waterbodies, power lines, and other rights of way could have different thresholds for NOI 

submission.

2

NOI submission thresholds should not be based on the amount of pesticides applied, for 

pesticide products and their FIFRA-labeled use rates vary widely and amount-used provides a 

poor metric across types of product. Similarly, the number of applications is not an appropriate 

metric for the threshold because products differ so widely in the scope and number of sites to 

which they are applied.

We agree that the presence of NOI thresholds assumes that even among the decisionmaking persons and entities there will be some pesticide applications that will be covered by the 

general permit without submission of an NOI. 

Thresholds should be based on the amount of water-acres treated, linear miles of rightsof-way treated that include jurisdictional waters, or aggregated forest acres to be treated by 

pesticide treatments. NOI submission thresholds should not be based on the amount of pesticides 

applied, for pesticide products and their FIFRA-labeled use rates vary widely, or the number of 

applications. 

We believe that if EPA applies thresholds for NOI submissions by decision-making 

persons and entities, then reasonable thresholds might be the following. We urge EPA to contact 

representatives of these industry sectors to verify the utility and functionality of these thresholds: 

· For treatment to or over lakes, ponds, rivers and other water bodies for control of 

invasive or native aquatic weeds, mosquitoes, or algae, a reasonable threshold might be 

250 water-acres in aggregate per year; 

· For treatment to control growth of brush and weeds along land-based rights-of-way

(pipelines, power lines, roads, railroads, etc.) that may routinely encounter adjacent 

2 According to DOE there are 305,000 miles of interstate and intrastate pipelines for natural gas and another 200,000 

miles of oil pipelines in the US; the rights of way are maintained by pipeline companies, which should submit 

NOIs. According FEMA there are 186,411 miles of high power transmission lines in the US owned and operated by 

500 companies. According to the National Association of Counties states there are 2,987,371 miles of rural roads 

and 1,029,363 miles of urban roads, which are generally maintained by the 3,141 counties in the US. According to 

the Association of American Railroads (AAR) there are 140,490 miles of Class 1 railroads in the United States 

operated by 7 companies. According to the DOT there are 119,093 miles of rural interstate and 41,924 miles of 

urban interstate in the US, often maintained by state highway departments. There are thousands of miles of 

drainage ditches and water conveyance canals in the US, and these are maintained by a wide range of entities, from 

state water management districts, water management companies and irrigation districts of various sizes. 
ditches, stormwater culverts, or other potential jurisdictional waters in the process, a 

reasonable threshold might be 100 miles of right-of-way treatment in aggregate per year; 

· For treatment to control algae and/or aquatic invasive or native weed species in and 

adjacent to canals, drainage ditches, rivers, and other water conveyances, a reasonable 

threshold might be 100 miles of treatment of water conveyances in aggregate per year; 

· For insect pest control in forest canopies treated by airplane, a reasonable threshold might 

be in aggregate 5,000 acres of treated forest. 

Thank you for allowing us to contribute the points on the NOI threshold question. It is but one 

of the many issues in the scope of NPDES general permit program development for aquatic 

pesticide applications. We look forward to contributing our thoughts on other aspects of this 

issue.

Sincerely,

Douglas T. Nelson

General Counsel and Secretary