FW: [waterpests] NPDES Pesticides General Permit Question on NOIs

Schardt, Jeffrey to: Jack Faulk 12/21/2009 04:50 PM

Cc: "Caton, William", "Dwinell, Steve" , "Potts, Elsa", "Coram, 

Phil", "Daiker, Dave"

History: This message has been forwarded.

Hello Jack - Some thoughts on NOI thresholds

As Bill Caton pointed out in his December 16th email on NOI thresholds, the 

Florida Fish & Wildlife Conservation Commission supports the proposed 250-acre 

/ 100 mile shoreline threshold for submitting an NOI for aquatic weeds / algae 

control. This level of regulation will capture as much as 50% of the acreage 

to which herbicides are applied for aquatic weed control in Florida. It will 

also allow staff to focus on large-scale aquatic weed problems and management 

programs that have the greatest potential for impacts in FL waters.

I have learned during the NPDES process over the past several months that 

there is a clear difference in the magnitude of mosquito control and aquatic 

plant management. Therefore, it seems logical that there should be different 

thresholds for each of these venues. However, within each venue, I would 

recommend as few triggers or thresholds as possible to minimize confusion and 

interpretations. For example, I have recently seen suggestions to base NOI 

application requirements on herbicide half-life, concentrations, dilution, and 

risk factors - processes that can be both lengthy and confusing given the high 

degree of variability among these parameters. NOI thresholds need to be clear 

and straight forward. In developing thresholds for aquatic plant management we 

need to keep in mind that herbicides used for aquatic plant control are 

registered specifically for use in water. If they are applied according to 

label requirements, then risks (that have been developed during the 

registration process) are relatively low. If they are applied contrary to the 

label (the law), then there are enforcement provisions already in place. In 

the case of invasive aquatic plant management, delays in application may 

present more of a risk to the environment or human health, safety, and welfare 

than any benefits derived from requiring an NOI if the application and 

assessment process is confusing, cumbersome, or lengthy.

Florida has permitted aquatic plant management activities using herbicides for 

nearly 40 years. These activities are conducted by a variety of private and 

public entities ranging from individual property owners to large, for-profit 

management companies as well as by state and local governments. We currently 

have more than 7,000 active permits throughout the State and fund the control 

of about 65,000 acres of (mostly invasive) aquatic plants each year in FL 

public waters. Early on we learned that we cannot oversee all activities in 

all waters and re-evaluated the purpose of permitting in the first place. Our 

mission is not to regulate businesses or to tabulate quantities of 

EPA-registered herbicides placed in FL waters, but rather to manage aquatic 

plants in a manner that conserves or enhances the uses and functions of 

individual water bodies using management strategies that are compatible with 

current conditions and activities associated with the water body. FL exempts 

plant management activities from permitting in waters 10 acres in size or less 

or waters owned wholly by one entity, other than the state, regardless of 

size. This exempts thousands of small retention / detention ponds or waters on 

private property and allows us to focus staff and resources on Waters of the 

State or U.S. Waters. If we regulate businesses by the cumulative acreage of 

aquatic plant management they conduct across the state, we would end up 

permitting activities in the aforementioned retention ponds - many of which by 
intent have degraded water quality from urban or agricultural runoff.

There also has been discussion to base NOI thresholds on the number of 

applications in a water body or the number of applications across the state by 

a managing entity. The number of applications may likely have less impact on a 

water body than the magnitude of individual applications. Florida's management 

philosophy for invasive floating plants like water hyacinth and water lettuce 

is to conduct frequent inspections and small-scale management efforts to 

prevent small plant populations from becoming large-scale problems. Basing NOI 

thresholds on the number of applications in a water body may force applicators 

away from maintenance programs in which small amounts of herbicides are 

applied, to waiting until large-scale problems occur in order to reduce the 

number of herbicide applications to 1-2 times per year. From our experience, 

the net result from the latter management scenario is more herbicide use, 

higher management costs, and most importantly, more negative impacts 

associated with higher levels of invasive plants. 

From a logistics perspective, we have also learned that the permitting process 

needs to be straight forward and as streamlined and inexpensive as possible. 

If confusion exists or permits are too expensive or difficult to obtain, 

people may control plants without permits in hopes they will not get caught. 

We believe it is far more productive to provide extension services to assist 

people in developing responsible aquatic plant management plans in large water 

bodies or waters of greater importance than to enter into lengthy, expensive, 

after-the-fact enforcement proceedings in small or less significant waters. 

Most of the 7,000 permits issued in FL are to riparian land owners for small 

control acreages to get access to water bodies. By far, most of the plant 

acreages controlled in FL are funded by the State in public reservoirs and 

rivers, and most of the plants controlled are invasive floating or submersed 

species. The State authorizes and funds thousands of individual herbicide 

applications to control plants ranging in size from a few square feet to more 

than 1,000 acres. 

As the size of an annual management program increases (i.e. number of acres 

controlled) on a water body so does the level of program development 

(stakeholder involvement) and regulatory oversight. Likewise, larger water 

bodies or water bodies with multiple uses or functions usually require more 

planning to ensure management plans are compatible with the primary uses of 

the system. Having said that, decades of experience in developing aquatic 

plant management plans have shown us that basic considerations regarding 

control tools or management strategies are remarkably similar from one water 

body to the next. Therefore, I strongly recommend that EPA allows states to 

address basic considerations in a comprehensive BAT / BMP website or manual 

and only address management objectives and issues that are unique to a given 

water body in the IPM plan for that water body.

Thank you for allowing us to comment on the NPDES process as you develop these 

new regulations. Although the scale is smaller, we have evaluated the same 

issues in developing Florida's aquatic plant management program that you are 

now confronting with the national permitting program. We will gladly share 

these experiences with you to develop a meaningful program that focuses on 

sound environmental resource management practices.

Jeffrey D. Schardt

Environmental Administrator

FL Fish and Wildlife Conservation Commission

Invasive Plant Management Section

3900 Commonwealth Blvd. MS705

Tallahassee FL 32399

Ph: 850-245-2815
Fx: 850-245-2834

jeff.schardt@myfwc.com

-----Original Message-----

From: Faulk.Jack@epamail.epa.gov [mailto:Faulk.Jack@epamail.epa.gov] 

Sent: Friday, December 18, 2009 5:33 PM

To: Waterpests Mailing List

Subject: [waterpests] NPDES Pesticides General Permit Question on NOIs

All,

We are getting close to having a draft permit to share with regulators

(i.e., EPA and states) but are still trying to work out details of the

NOI (i.e., who has to "apply" for permit coverage as opposed to who will

be covered automatically without having to notify the Agency). We have

received some ideas from state and industry representatives but are

still trying to work out the details of how best to establish thresholds

for (1) who must submit an NOI and (2) who must implement more

comprehensive permit requirements (e.g., develop a written pest

management plan). Our original thought was to not require NOIs from any

but the largest permittees but we are thinking that there may be

advantages (both to us and to permittees) to also require NOIs from a

second set of permittees that may not be the largest but are still

entities for which we would like to have some basic information (e.g.,

name, location, pesticide use pattern for which permit coverage is

needed).

Under the scenario described above, we may need two thresholds: (1) who

is required to submit an NOI and (2) who should be subject to more

comprehensive permit conditions. I'm hoping that some of you have been

thinking about this issue over the past month or so and may have some

additional thoughts on how we may want to address this. I should add

that the thresholds may also take into account something other than

simply area treated, for example, may be based on the type of entity

(e.g., mosquito control district) or the type of pesticide use pattern

(e.g., aquatic weed control).

Also, your thoughts on when a threshold value triggers additional

requirements are welcome. For example, and this is strictly

hypothetical, if we set an "written plan" threshold of 1000 water-acres

treated, when should those IPM implementation requirements apply? Some

options include: (1) as soon as the permittee has reason to believe it

will exceed 1,000 water-acres treated under the permit, (2) as soon as

the permittee has reason to believe it will exceed 1,000 water acres

treated in a given permit year, (3) as soon as the permittee applies

pesticides that exceed the 1000 water-acre threshold (i.e., they would

not have to follow IPM practices for the first 999.9 acres, or (4) some

other approach. Sorry if this is confusing but this is turning out to

be the most complicated logistical aspect of the permit. I would

appreciate if you could really take some time and think through this

process and provide me with your ideas before Janauary 5, 2010. All

ideas are welcome. I hate the phrase, but we really do have to think

outside the box to make this NOI concept workable and appropriate.

Thanks in advance for your ideas.

Enjoy the holidays!

Jack
Water Permits Division

US Environmental Protection Agency

EPA East (4203M)

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Telephone (202) 564-0768

Fax (202) 564-6431

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