z Representing the Plant Science Industry z

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

December 7, 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/RISE have given considerable thought to several additional issues 

pertaining to the issuance of NPDES general permits EPA is developing for aquatic 

pesticide use. This memo summarizes our thoughts on: (1) Who most appropriately 

should be permitted under a pesticide general NPDES permit; (2) What are the 

consequences of denying general NPDES permit coverage for pesticide applications 

to, over, or near waters of the US that are impaired due to specific pesticides (§ 

303(d)-listed waters) or Tier III waters (e.g., Outstanding Natural Resource 

Waters), and what are possible alternatives to requiring permittees to apply for 

individual permits in those areas; (3) How EPA could address compliance with “free 

from” narrative water quality standards; (4) What the relative costs of the IPM 

measures suggested in the prototype permit for BAT might be; (5) If EPA decided to 

cover terrestrial pesticide applications near streams running through fields, what 

the likely increase in the number of permittees might be; (6) How the US Congress 

has defined Integrated Pest Management; and (7) What the relative costs of 

monitoring might be. 

In its October 7 national webinar, EPA made several statements about the 

scope of NPDES general permitting relative to these specific questions that we 

found instructive in our thinking. We have underlined those most relevant to our 

comments: 

• The pesticide general permit may not cover certain discharges for which EPA 

will require coverage under an individual permit or another general permit, such 

as: Discharges of pesticides to waterbodies that are impaired under CWA § 

303(d) for that discharged pesticide; Discharges to Tier 3 waterbodies (i.e., 

Outstanding Natural Resource Waters); or Discharges that are not specifically 

addressed by the pesticide general permit; 

• EPA may notify discharger in writing of its decision to exercise its authority to 

impose additional enforceable monitoring requirements; permittee can either 

accept the new requirements, or elect to apply for an individual permit. 
Alternatively, EPA could use its separate enforcement authority to require 

additional monitoring or other information to verify compliance or a return to 

compliance; 

• EPA expects that compliance with the conditions of the permit will control 

discharges as necessary to meet applicable water quality standards. A ‘visual’ 

monitoring approach based on narrative WQBELs may be appropriate for 

assessing compliance with permit conditions. Routine visual monitoring includes 

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

checks. 

• The pesticide general permit will cover pesticide applications covered under the 

2006 Final Rule (71 FR 68483, 11/27/06): The application of pesticides directly 

“to” the water to control pests, or the application of pesticides to control pests 

that are present “over” waters of the United States, including “near” such waters 

(e.g., ditch bank vegetation control), where a portion of the pesticides will 

unavoidably be deposited to waters of the US in order to target the pests 

effectively. Off-target spray drift was not covered by the 2006 rule. 

• This pesticide general permit will not cover activities exempt from permitting 

under the CWA: Agricultural stormwater runoff and irrigation return flow. 

• Implementing Integrated Pest Management (IPM) practices will be determined 

to be Best Available Technology (BAT) for many applicators. 

1. Who most appropriately should be permitted under a pesticide general NPDES 

permit? Recently we communicated that we believe NOI submissions should be 

made by the decision-making entities and persons (“decision makers”) who trigger 

pesticide applications. In their NOI submissions and annual reports they should 

identify the contract applicators they have hired during the course of the season. 

Subsequently hired applicators’ names would be submitted as supplements to the 

decision maker’s NOI or in annual reports. If the decision maker is the applicator, 

that fact should be stated in the NOI. For-hire aquatic pesticide applicators hired 

by NOI-submitting decision makers should be subject separately to the 

requirements of the general permit, but without the need to file a separate NOI on 

their own behalf to obtain coverage. Such for-hire applicators would be bound also 

to performance provisions of their contracts with decision makers. The general 

permit should clearly establish the respective responsibilities (e.g., IPM activities, 

recordkeeping, report submission, etc.) of NOI-filing decision makers and of their 

non-NOI-filing for-hire applicators, and there should be no obligations that fall 

amorphously to both. This will avoid the difficulties encountered in other multiple 

permittee settings where permit obligations frequently go unsatisfied because they 

have not been assigned clearly to one permit holder or to the other. The general 

permit also should be clear and flexible enough to re-assign responsibilities 

generally allocated to for-hire pesticide applicators to the decision makers where the 

latter also functioning as the applicator. 
Non-decision-making entities that may incidentally benefit from the pesticide 

application, such as absentee landowners of woodlots, individual homeowners 

within a homeowners’ association, or farmers who purchase water from irrigation 

districts, should be expressly exempted from NPDES permitting as entities and 

persons that do not constitute “operators” under the terms of 40 CFR 122.21(b). 

2. What are the consequences of requiring individual NPDES permit coverage for 

some pesticide treatments? What are possible alternatives to requiring permittees 

to apply for individual permits in some circumstances? As EPA develops the 

pesticide NPDES permits we believe it should take account of the significant 

adverse consequences that attach to any system that requires individual permits for 

each encountered Tier III waterbody or §303(d)-listed waterbody. We urge EPA 

(and delegated States) to explore alternative permitting strategies to avoid or at 

least minimize those consequences while still protecting these important or 

vulnerable waters. 

• Tier III waters: Often pipelines, power lines, railroads, canals and roads 

extend for hundreds or thousands of miles across numerous legal 

jurisdictions. Such utility and conveyance rights-of-ways must be maintained 

to control the growth of brush and weeds across long expanses of rural, often 

remote, wilderness in which Tier III waters (lakes, rivers, creeks, wetlands, 

etc.) may be encountered. Also, private, national or state forests often extend 

for hundreds of miles across remote and mountainous regions in which Tier 

III waters are likely to be encountered. Maintenance of forests involves the 

control of insects (e.g., Pine Bark Beetle, Gypsy Moth, etc.) and control of 

weeds/brush in reforestation areas. Requiring the negotiation of individual 

permits for each encountered waterbody will deny or delay necessary pest 

control measures; defeat critical maintenance strategies; jeopardize forest 

survival, safe operation of utilities and roadways; and challenge maintenance 

budgets. 

We believe that decision makers responsible for the maintenance of rights-ofway for interstate utilities and conveyances should be offered the opportunity 

for CWA coverage within the general permit, perhaps enhanced by EPA and 

States with the imposition of additional enforceable requirements. Such 

permittees could then either accept the additional requirements, or elect to 

apply for an individual permit. 

Alternatively, the Agency could accept, as a default assumption, that any 

area containing Tier III waters to which the proposed pesticide application 

has been made in the past without reported adverse impact can sustain 

similar application in the future without harm. This presumption would be 

rebutted by documentation of past impairment or future documentation of a 

water quality excursion resulting from future applications, with the 
consequence that future applications would need to be subject to an 

individual permit. The effect of this “presumptive approach” would be to 

enable EPA to rely on past data to authorize continued applications in the 

future under the general permit unless and until empirical past or future 

data reflect a threat to those waters. 

• §303(d)-listed waters: Situations may occur where decision makers will 

require aquatic pest control treatment of waterbodies that are listed as 

impaired due to residues of the specific pesticides needed, but that originated 

from the prior actions of others. Rather than penalizing the “innocent” 

decision maker by invoking the time-consuming and costly process of 

obtaining an individual permit, we believe a modified general permit should 

be considered for those situations. 

One alternative would be to simply import specific terms from the Waste 

Load Allocation of any such TMDL into the permit by the permit’s terms. 

This simple expedient would ensure that the permit was consistent with the 

applicable TMDL, as required by regulation, but would enable permittees to 

enjoy the benefits in efficiency that make the general permit EPA’s preferred 

vehicle for permitting this class of discharge. Such an approach has been 

adopted in prior EPA general permits, including the Vessel General Permit. 

Another alternative is to employ the “reasonable assurance” concept 

currently applied in the development of TMDLs. The notion here is that EPA 

(and the stream) gains new value by making the FIFRA label and any 

additional permit-based BMPs and monitoring enforceable for the first time 

under the CWA. This additional level of control over discharges constitutes 

the kind of “reasonable assurance” that water quality managers are allowed 

to rely upon when developing TMDLs. Such reasonable assurance of 

attainment of water quality standards is equally supportive of a finding that, 

with the addition of the new NPDES permit, the water quality of the 

receiving water will be restored. Should that finding be unsupported by the 

next triennial review of the 303(d) list an individual permit tailored to the 

remaining specific needs of the stream could be developed for future 

applications. 

3. How should EPA address compliance with “free from” narrative water quality 

standards? This is a complex issue, but one that we feel has at least two potential 

solutions: 

• Application to Treatment Zones: EPA in its October 7 webinar stated “Your 

discharge must be controlled as necessary so that your chemical residue 

meets applicable water quality standards”. This suggests that “free from” 

narrative water quality standards (“WQS”) would apply not to the pesticide 

treatment zone at the time of application, but to any residues remaining at 
the end of the effective period of treatment. We agree. Applying WQS to 

pesticide at the time of application could so reduce the application dosages 

that the treatment would be both ineffective and perhaps violate the product 

labeled application rate. Thus, the “free from” limitation should be applied 

exclusively to any pesticide residues after the treatment has been completed. 

• Sufficiency of Technology-Based Standards: EPA should stipulate explicitly 

that compliance with all applicable FIFRA-label requirements and CWANPDES TBELs will satisfy all applicable water quality standards, including 

narrative water quality standards. Title 40, CFR 122.44(k)(3) allows water 

quality-based effluent limitations to be implemented through BMPs if 

numeric effluent limits are infeasible. This was the position adopted by 

California’s Water Resources Control Board in its statewide NPDES permit 

for aquatic weed control.1 EPA should determine it is infeasible to establish 

numeric effluent limitations for pesticide general permits because, (1) the 

regulated discharge is over-applied or misdirected pesticide products and 

residues remaining after the effective period of beneficial use resulting from 

the pesticide application. At what point the pesticide becomes a waste or 

residue is not precisely known and varies depending on many factors. 

Therefore, in the application of aquatic pesticides, the exact effluent is 

unknown; (2) it would be impractical to treat the numerous short-duration 

intermittent pesticide releases to surface waters from many different 

locations; and (3) treatment in many cases may render the pesticide useless 

for aquatic pest control. Therefore, EPA (and States) should make a finding 

that the FIFRA label requirements and IPM-based narrative effluent 

limitations contained in pesticide general permits include the requirements 

necessary to comply with all applicable water quality standards, including 

narrative standards. 

4. What are the relative costs of the IPM measures suggested for pesticide general 

permits for BAT? Many aspects of IPM are integrated into FIFRA label 

requirements, and as such many are already mandatory. They protect workers, 

neighbors and the environment, while enhancing pest management strategies. 

These practices require time and expertise, and add direct and indirect costs to 

pesticide use for both decision makers and for-hire applicators. They include the 

requirement to carefully follow the precautionary statements on the label, proper 

use of personal safety equipment, storage and handling of pesticide containers, 

careful selection of pesticide dosage from a range of allowable application rates 

based on factors such as pest population and life stage, presence of beneficial or 

non-target species, soil type, and meteorological factors; preventative equipment 

maintenance and inspection; calibration of sprayers and applicators; proper 

pesticide mixing and loading procedures; spill avoidance and proper cleanup; spray 

 

1 California SWRCB. 2004. Water Quality Order No. 2004-0009-DWQ. Pp 9-11. 
drift minimization2; rinsing of equipment; recycling/disposal of empty containers; 

excess product disposal; worker safety training; recordkeeping; and other 

procedures. Certified pesticide applicators attend classes and must pass periodic 

examinations to earn and retain certification3, and the pesticide industry sponsors 

safety/emergency preparedness training schools and a national program that has 

collected and recycled 100 million pounds of plastic pesticide containers since 1992.4

Professional aerial applicators commonly rely on GPS-based application technology 

coupled with field mapping and flagging. Costs for training and use of such BMPs 

are significant. 

Additional IPM practices such as habitat modification, introduction of sterilized or 

beneficial insects, or hand weeding are useful in some circumstances when time and 

funding are available, but likely impractical as a requirement on a national scale for 

either routine or emergency management of utility rights of way, irrigation canals 

and recreational waterways, forests, roads, etc. Many federal, state and municipal 

agencies responsible for pest control will not have the resources or time to 

implement IPM measures beyond the requirements of the FIFRA label, state 

pesticide regulations, and professional BMPs described above. Furthermore, 

commercial applicators hired to apply pest control products have their performance 

responsibilities fully delineated by contracting decision makers; it is not their 

prerogative to consider alternatives that may involve time delays, alternative 

methods, or additional costs. 

NPDES-permit enforcement of IPM (those measures beyond FIFRA labels) would 

represent a quantum change in the manner in which IPM is affected (e.g., 

mandatory vs. voluntary). If IPM measures are to have a role in this permit, even 

under a more voluntary arrangement, then EPA should use the statutory definition 

of IPM (see #6 below) and not selected parts of it, fully value the BMPs required by 

FIFRA labels and state pesticide regulations, carefully define the meaning of phases 

such as “to the extent practical and in your control,” and ensure that IPM measures 

that can best be implemented by decision makers are not also required of their forhire applicators, and vice-versa. 

5. If EPA decided to cover terrestrial pesticide applications near streams running 

through fields, what would be the likely increase in the number of permittees? 

Were EPA to expand the jurisdictional reach of its pesticide NPDES general permit 

program to regulate all potential circumstances of accidental off-target applications 

to waters of the US, the number of permittees covered by such permits could well 

increase by at least 10-fold. This statement is not a condemnation of pesticide 

 

2 EPA recently proposed additional pesticide label spray drift policies (74 FR 57166; 11/04/09). 

3 Examples: Wisconsin http://ipcm.wisc.edu/pat/Certification/tabid/94/Default.aspx; 

Ohio http://www.agri.ohio.gov/apps/odaprs/pestfert-PRS-index.aspx; 

California http://www.cdpr.ca.gov/docs/license/liccert.htm 4 Ag Container Recycling Council, http://www.acrecycle.org/ 
application practices, either aerial or ground based, but simply an observation that 

a percentage of the 922 million acres5 of farmland have adjacent streams, creeks, 

ditches, lakes, wetlands, and other potentially jurisdictional waters of the US. EPA 

should not extend the reach of its NPDES program to terrestrial pesticide 

applications. 

CLA/RISE believes the NPDES general permit program under development should 

be limited to the scope of the vacated 2006 Final Rule (71 FR 68483, 11/27/06). 

That rule addressed applications of pesticides made directly “to” the water to 

control pests, and applications of pesticides to control pests that are present “over” 

waters, including “near” such waters (e.g., ditch bank vegetation control), where a 

portion of the pesticides will unavoidably be deposited to waters of the US in order 

to target the pests effectively. This last phrase effectively eliminates the need to 

extend the new general permits to include any terrestrial pesticide applications. 

The 2006 rule did not include spray drift from terrestrial applications that 

accidentally enters waters of the US, or attempt to disturb the statutory exemption 

of agricultural stormwater runoff and irrigation return flows and neither should 

these new general permits. 

6. How has the U.S. Congress defined Integrated Pest Management? Congress has 

defined Integrated Pest Management (IPM) three times in recent legislation. In 

each case the terminology has been the same. To the extent EPA integrates IPM 

measures in addition to the FIFRA label requirements into the BAT provisions of its 

NPDES general permit for pesticides use in, over or near waters of the US, we urge 

the Agency to adhere to the IPM envisioned by Congress: 

• The 1996 Food Quality Protection Act (PL 104-170) defines IPM as “a 

sustainable approach to managing pests by combining biological, cultural, 

physical, and chemical tools in a way that minimizes economic, health, and 

environmental risks.” 

• The Children’s Health Act of 2000 (PL 106-310) reaffirms the FQPA 

definition of IPM. The law states that “‘integrated pest management’ means 

an approach to the management of pests in public facilities that combines 

biological, cultural, physical, and chemical tools in a way that minimizes 

economic, health, and environmental risks.” 

• The 2008 Farm Bill, the “Food, Conservation and Energy Act of 2008” (PL 

110-246) also reaffirms the definition of IPM. It states that IPM is “a 

sustainable approach to managing pests by combining biological, cultural, 

physical, and chemical tools in a way that minimizes economic, health, and 

environmental risks.” 

 

5 2007 U.S. Farmland. USDA Economic Research Service. 

http://www.ers.usda.gov/StateFacts/US.htm 
7. What are the relative costs of monitoring? Monitoring costs will depend on the 

number, extent, and whether they are to be visual observations of selected biological 

indicators or involve analytical analysis of water samples for pesticide residues. 

Labor costs for sample collections may be significant for post-application monitoring 

of creeks, streams, wetlands and other waterbodies below vast expanses of forest 

canopies in remote areas, or wetlands following mosquito control. There is also the 

consideration of how many observations or samples would constitute a valid 

assessment; for large treatment areas this could be extremely significant. A critical 

question would be which entity (decision maker or for-hire pesticide applicator) 

should be tasked with monitoring responsibility and costs. 

Visual surveillance costs can be broken into two categories: (a) the direct costs of 

travel and the evaluation of the site. These are primarily labor and travel costs, 

and can be significant if the evaluation sites are remote, waterbodies are located 

extensively across large treatment areas, or access is difficult. It will also vary by 

the duration of surveillance (e.g., repeat visits over a period of time); (b) the indirect 

costs of lost productivity. Significant business “down time” costs and loss of income 

could be involved if the evaluator is required to return to the application site one or 

more times following treatment. These costs would apply to both decision makers 

and for-hire applicators, and would be especially problematic if individuals or small 

businesses were responsible for the evaluation. This would be especially costly for 

aerial applicators hired to apply pesticide treatments to sites hundreds of miles 

apart in different states, or for applicators or decision makers required to evaluate 

ground-based pesticide applications made to large expanses of utility, railroad or 

roadway rights-of-way that encounter large numbers of jurisdictional waters. 

Return travel on one or more separate dates to the application sites for surveillance 

may represent such a loss of income and/or expense burden that the business 

cannot be sustained. 

Analytical monitoring would include the costs outlined above for visual surveillance 

but would also include the very significant direct and indirect costs – sample 

collection (perhaps requiring a boat), purchase and pre-use cleaning of bottles or 

other sample containers, sample collection and transport, assurance of quality 

assurance/quality control, pre-analysis sample preparation, GC-Mass Spectrometer 

analysis, statistical data analysis – according to Bob Hirsch, Chief Hydrologist, US 

Geological Survey. The GC-MS analysis6 alone for aquatic pesticides costs $300 to 

$500 per sample in a state laboratory, according to Jon Jennings, Washington State 

Department of Ecology NPDES Permits Administrator. Such determinations by 

certified commercial laboratories may represent a higher or lower cost, depending 

on the number of analyses, sample preparation, and other factors. For-hire 

applicators would likely find analytical monitoring costs, direct and indirect, beyond 

 

6 EPA Method #525.2, “Determination of Organic Compounds in Drinking Water by Solid-Liquid 

Extraction and GC-Mass Spectrometry.” 
their capability. Even decision makers would find analytical monitoring a 

substantial burden. 

These considerations present EPA with a set of decisions that must be made with 

great deliberation if a balance between a mandate to incorporate compliance 

monitoring terms in NPDES permits and the inclusion of terms so onerous as to 

place such a critical industry’s viability in doubt. In the main, visual observations, 

properly defined and economically applied, are generally more useful and more 

economically sustainable than are measures requiring analytical monitoring. 

Individual attention to each class of pesticide application to be permitted will be 

necessary to, first, identify current practices as required by product labels and, 

then, to determine what if any new monitoring procedures need to be added to 

satisfy NPDES permitting requirements. These investigations should be 

undertaken between formal option selection and the publication of the first draft 

permits. CLA/RISE, of course, stands ready to assist the Agency in developing a 

more finely-tuned understanding of additional practices and understanding the 

degree to which proposed additional monitoring practices would impact each 

product use sector under consideration in this permitting process. 

Thank you for allowing us to contribute these observations on NPDES permits 

program considerations. We look forward to contributing our thoughts on other 

aspects of this. 

Sincerely, 

Doug Nelson 

General Counsel and Secretary