### 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 byintent have degraded water quality from urban or agricultural runof f

.

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: 850-245-2815Fx: 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!

JackWater Permits Division US Environmental Protection Agency
EPA East (4203M) 1200 Pennsylvania Avenue, NW Washington, DC 20460

Telephone (202) 564-0768
Fax (202) 564-6431

------------------------------------------ You are currently subscribed to waterpests as: jeff.schardt@myfwc.com

To unsubscribe, send a blank email to leave-989341-929500.ec02f030440ca9d7ae73d4d045c6a01e@lists.epa.gov

OR: Use the listserver's web interface at https://lists.epa.gov/read/?forum=waterpests to manage your subscription.

For problems with this list, contact waterpests-Owner@lists.epa.gov

------------------------------------------