An Act To Clarify the Permitted Use of Aquatic Pesticides
Maine Legislature, Session 126, LD 1430
Committee: Environment and Natural Resources
Sponsors: SAVIELLO
Amends: 38 MRSA §464, 38 MRSA §465, 38 MRSA §465-A, 38 MRSA §465-B

Legislative Document 
No. 1430 
S.P. 516 
In Senate, April 23, 2013 
An Act To Clarify the Permitted Use of Aquatic Pesticides 
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed. 
DAREK M. GRANT 
Secretary of the Senate 
Presented by Senator SAVIELLO of Franklin. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  38 MRSA §464, sub-§4, ¶A, as amended by PL 2007, c. 291, §1, is 
further amended to read: 
A.  Notwithstanding section 414-A, the department may not issue a water discharge 
license for any of the following discharges: 
(1)  Direct discharge of pollutants to waters having a drainage area of less than 10 
square miles, except that: 
(a)  Discharges into these waters that were licensed prior to January 1, 1986 
are allowed to continue only until practical alternatives exist; 
(b)  Storm water discharges in compliance with state and local requirements 
are exempt from this subparagraph; 
(c)  Aquatic pesticide or chemical discharges approved by the department and 
conducted by the department, the Department of Inland Fisheries and 
Wildlife or an agent of either agency for the purpose of restoring biological 
communities affected by an invasive species are exempt from this 
subparagraph;  
(d)  Chemical discharges for the purpose of restoring water quality in GPA 
waters approved by the department are exempt from this subparagraph; and 
(e)  Discharges of aquatic pesticides approved by the department for the 
control of mosquito-borne diseases in the interest of public health and safety 
using materials and methods that provide for protection of nontarget species 
are exempt from this subparagraph.  When the department issues a license for 
the discharge of aquatic pesticides authorized under this division, the 
department shall notify the municipality in which the application is licensed 
to occur and post the notice on the department's publicly accessible website.; 
and 
(f)  Discharges of pesticides approved by the department are exempt from 
this subparagraph that are: 
(i)  Unintended and an incidental result of the spraying of pesticides; 
(ii)  Applied in compliance with federal labeling restrictions; and 
(iii)  Applied in compliance with statute, Board of Pesticides Control 
rules and best management practices. 
(2)  New direct discharge of domestic pollutants to tributaries of Class-GPA 
waters; 
(3)  Any discharge into a tributary of GPA waters that by itself or in combination 
with other activities causes water quality degradation that would impair the 
characteristics and designated uses of downstream GPA waters or causes an 
increase in the trophic state of those GPA waters except for aquatic pesticide or 
chemical discharges approved by the department and conducted by the 
department, the Department of Inland Fisheries and Wildlife or an agent of either 
agency for the purpose of restoring biological communities affected by an 
invasive species in the GPA waters or a tributary to the GPA waters; the 
following: 
(a)  Aquatic pesticide or chemical discharges approved by the department and 
conducted by the department, the Department of Inland Fisheries and 
Wildlife or an agent of either agency for the purpose of restoring biological 
communities affected by an invasive species in the GPA waters or a tributary 
to the GPA waters; or 
(b)  Discharges of pesticides approved by the department that are: 
(i)  Unintended and an incidental result of the spraying of pesticides; 
(ii)  Applied in compliance with federal labeling restrictions; and 
(iii)  Applied in compliance with statute, Board of Pesticides Control 
rules and best management practices. 
(4)  Discharge of pollutants to waters of the State that imparts color, taste, 
turbidity, toxicity, radioactivity or other properties that cause those waters to be 
unsuitable for the designated uses and characteristics ascribed to their class; 
(5)  Discharge of pollutants to any water of the State that violates sections 465, 
465-A and 465-B, except as provided in section 451; causes the "pH" of fresh 
waters to fall outside of the 6.0 to 8.5 range; or causes the "pH" of estuarine and 
marine waters to fall outside of the 7.0 to 8.5 range; 
(6)  New discharges of domestic pollutants to the surface waters of the State that 
are not conveyed and treated in municipal or quasi-municipal sewage facilities.  
For the purposes of this subparagraph, "new discharge" means any overboard 
discharge that was not licensed as of June 1, 1987, except discharges from 
vessels and those discharges that were in continuous existence for the 12 months 
preceding June 1, 1987, as demonstrated by the applicant to the department with 
clear and convincing evidence.  The volume of the discharge from an overboard 
discharge facility that was licensed as of June 1, 1987 is determined by the actual 
or estimated volume from the facilities connected to the overboard discharge 
facility during the 12 months preceding June 1, 1987 or the volume allowed by 
the previous license, whichever is less, unless it is found by the department that 
an error was made during prior licensing.  The months during which a discharge 
may occur from an overboard discharge facility that was licensed as of June 1, 
1987 must be determined by the actual use of the facility at the time of the most 
recent license application prior to June 1, 1987 or the actual use of the facility 
during the 12 months prior to June 1, 1987, whichever is greater.  If the 
overboard discharge facility was the primary residence of an owner at the time of 
the most recent license application prior to June 1, 1987 or during the 12 months 
prior to June 1, 1987, then the facility is considered a year-round residence.  
"Year-round residence" means a facility that is continuously used for more than 8 
months of the year.  For purposes of licensing, the department shall treat an 
increase in the licensed volume or quantity of an existing discharge or an 
expansion in the months during which the discharge takes place as a new 
discharge of domestic pollutants; 
(7)  After the Administrator of the United States Environmental Protection 
Agency ceases issuing permits for discharges of pollutants to waters of this State 
pursuant to the administrator's authority under the Federal Water Pollution 
Control Act, Section 402(c)(1), any proposed license to which the administrator 
has formally objected under 40 Code of Federal Regulations, Section 123.44, as 
amended, or any license that would not provide for compliance with applicable 
requirements of that Act or regulations adopted thereunder; 
(8)  Discharges for which the imposition of conditions can not ensure compliance 
with applicable water quality requirements of this State or another state; 
(9)  Discharges that would, in the judgment of the Secretary of the United States 
Army, substantially impair anchorage or navigation; 
(10)  Discharges that would be inconsistent with a plan or plan amendment 
approved under the Federal Water Pollution Control Act, Section 208(b); and 
(11)  Discharges that would cause unreasonable degradation of marine waters or 
when insufficient information exists to make a reasonable judgment whether the 
discharge would cause unreasonable degradation of marine waters. 
Notwithstanding subparagraph (6), the department may issue a wastewater discharge 
license allowing for an increase in the volume or quantity of discharges of domestic 
pollutants from any university, college or school administrative unit sewage facility, 
as long as the university, college or school administrative unit has a wastewater 
discharge license valid on the effective date of this paragraph and the increase in 
discharges does not violate the conditions of subparagraphs (1) to (5) and (7) to (11) 
or other applicable laws. 
Sec. 2.  38 MRSA §465, sub-§1, ¶C, as amended by PL 2007, c. 291, §2, is 
further amended to read: 
C.  Except as provided in this paragraph, there may be no direct discharge of 
pollutants to Class AA waters. 
(1)  Storm water discharges that are in compliance with state and local 
requirements are allowed. 
(2)  A discharge to Class AA waters that are or once were populated by a distinct 
population segment of Atlantic salmon as determined pursuant to the United 
States Endangered Species Act of 1973, Public Law 93-205, as amended, is 
allowed if, in addition to satisfying all the requirements of this article, the 
applicant, prior to issuance of a discharge license, objectively demonstrates to the 
department's satisfaction that the discharge is necessary, that there are no other 
reasonable alternatives available and that the discharged effluent is for the 
purpose of and will assist in the restoration of Atlantic salmon and will return the 
waters to a state that is closer to historically natural chemical quality. 
(a)  The department may issue no more than a total of 3 discharge licenses 
pursuant to this subparagraph and subsection 2, paragraph C, subparagraph 
(2). 
(b)  A discharge license issued pursuant to this subparagraph may not be 
effective for more than 5 years from the date of issuance. 
(3)  Aquatic pesticide or chemical discharges approved by the department and 
conducted by the department, the Department of Inland Fisheries and Wildlife or 
an agent of either agency for the purpose of restoring biological communities 
affected by an invasive species are allowed. 
(4) Discharges of aquatic pesticides approved by the department for the control of 
mosquito-borne diseases in the interest of public health and safety using materials 
and methods that provide for protection of nontarget species are allowed.  When 
the department issues a license for the discharge of aquatic pesticides authorized 
under this subparagraph, the department shall notify the municipality in which 
the application is licensed to occur and post the notice on the department's 
publicly accessible website. 
(5)  Discharges of pesticides approved by the department are allowed that are: 
(a)  Unintended and an incidental result of the spraying of pesticides; 
(b)  Applied in compliance with federal labeling restrictions; and 
(c)  Applied in compliance with statute, Board of Pesticides Control rules and 
best management practices. 
Sec. 3.  38 MRSA §465, sub-§2, ¶C, as amended by PL 2007, c. 291, §3, is 
further amended to read: 
C.  Except as provided in this paragraph, direct discharges to these waters licensed 
after January 1, 1986 are permitted only if, in addition to satisfying all the 
requirements of this article, the discharged effluent will be equal to or better than the 
existing water quality of the receiving waters.  Prior to issuing a discharge license, 
the department shall require the applicant to objectively demonstrate to the 
department's satisfaction that the discharge is necessary and that there are no other 
reasonable alternatives available.  Discharges into waters of this classification 
licensed prior to January 1, 1986 are allowed to continue only until practical 
alternatives exist. 
(1)  This paragraph does not apply to a discharge of storm water that is in 
compliance with state and local requirements. 
(2)  This paragraph does not apply to a discharge to Class A waters that are or 
once were populated by a distinct population segment of Atlantic salmon as 
determined pursuant to the United States Endangered Species Act of 1973, Public 
Law 93-205, as amended, if, in addition to satisfying all the requirements of this 
article, the applicant, prior to issuance of a discharge license, objectively 
demonstrates to the department's satisfaction that the discharge is necessary, that 
there are no other reasonable alternatives available and that the discharged 
effluent is for the purpose of and will assist in the restoration of Atlantic salmon 
and will return the waters to a state that is closer to historically natural chemical 
quality. 
(a)  The department may issue no more than a total of 3 discharge licenses 
pursuant to this subparagraph and subsection 1, paragraph C, subparagraph 
(2). 
(b)  A discharge license issued pursuant to this subparagraph may not be 
effective for more than 5 years from the date of issuance. 
(3)  This paragraph does not apply to aquatic pesticide or chemical discharges 
approved by the department and conducted by the department, the Department of 
Inland Fisheries and Wildlife or an agent of either agency for the purpose of 
restoring biological communities affected by an invasive species. 
(4)  For the purpose of allowing the discharge of aquatic pesticides approved by 
the department for the control of mosquito-borne diseases in the interest of public 
health and safety, the department may find that the discharged effluent will be 
equal to or better than the existing water quality of the receiving waters as long as 
the materials and methods used provide protection for nontarget species.  When 
the department issues a license for the discharge of aquatic pesticides authorized 
under this subparagraph, the department shall notify the municipality in which 
the application is licensed to occur and post the notice on the department's 
publicly accessible website. 
(5)  This paragraph does not apply to discharges of pesticides approved by the 
department that are: 
(a)  Unintended and an incidental result of the spraying of pesticides; 
(b)  Applied in compliance with federal labeling restrictions; and 
(c)  Applied in compliance with statute, Board of Pesticides Control rules and 
best management practices. 
Sec. 4.  38 MRSA §465-A, sub-§1, ¶C, as amended by PL 2007, c. 291, §5, is 
further amended to read: 
C.  There may be no new direct discharge of pollutants into Class GPA waters.  The 
following are exempt from this provision: 
(1)  Chemical discharges for the purpose of restoring water quality approved by 
the department; 
(2)  Aquatic pesticide or chemical discharges approved by the department and 
conducted by the department, the Department of Inland Fisheries and Wildlife or 
an agent of either agency for the purpose of restoring biological communities 
affected by an invasive species;  
(3)  Storm water discharges that are in compliance with state and local 
requirements; and 
(4)  Discharges of aquatic pesticides approved by the department for the control 
of mosquito-borne diseases in the interest of public health and safety using 
materials and methods that provide for protection of nontarget species.  When the 
department issues a license for the discharge of aquatic pesticides authorized 
under this subparagraph, the department shall notify the municipality in which 
the application is licensed to occur and post the notice on the department's 
publicly accessible website.; and 
(5)  Discharges of pesticides approved by the department that are: 
(a)  Unintended and an incidental result of the spraying of pesticides; 
(b)  Applied in compliance with federal labeling restrictions; and 
(c)  Applied in compliance with statute, Board of Pesticides Control rules and 
best management practices. 
Discharges into these waters licensed prior to January 1, 1986 are allowed to continue 
only until practical alternatives exist.  Materials may not be placed on or removed 
from the shores or banks of a Class GPA water body in such a manner that materials 
may fall or be washed into the water or that contaminated drainage may flow or leach 
into those waters, except as permitted pursuant to section 480-C.  A change of land 
use in the watershed of a Class GPA water body may not, by itself or in combination 
with other activities, cause water quality degradation that impairs the characteristics 
and designated uses of downstream GPA waters or causes an increase in the trophic 
state of those GPA waters. 
Sec. 5.  38 MRSA §465-B, sub-§1, ¶C, as amended by PL 2009, c. 654, §7, is 
further amended to read: 
C.  There may be no direct discharge of pollutants to Class SA waters, except for the 
following: 
(1) Storm water discharges that are in compliance with state and local 
requirements;  
(2) Discharges of aquatic pesticides approved by the department for the control of 
mosquito-borne diseases in the interest of public health and safety using materials 
and methods that provide for protection of nontarget species.  When the 
department issues a license for the discharge of aquatic pesticides authorized 
under this subparagraph, the department shall notify the municipality in which 
the application is licensed to occur and post the notice on the department's 
publicly accessible website; and 
(3)  An overboard discharge licensed prior to January 1, 1986 if no practicable 
alternative exists.; and 
(4)  Discharges of pesticides approved by the department that are: 
(a)  Unintended and an incidental result of the spraying of pesticides; 
(b)  Applied in compliance with federal labeling restrictions; and 
(c)  Applied in compliance with statute, Board of Pesticides Control rules and 
best management practices. 
SUMMARY 
Due to a federal court decision, all discharges of pesticides to waters of the United 
States are now required to obtain a National Pollutant Discharge Elimination System 
permit.  Previously certain discharges of pesticides were exempt as long as the 
application of the pesticide was managed in accordance with the Federal Insecticide, 
Fungicide and Rodenticide Act.  This bill allows the Department of Environmental 
Protection to issue permits for certain discharges of pesticides to Class AA, A, SA and 
GPA waters, tributaries of Class GPA waters and waters having a drainage area of less 
than 10 square miles where, with limited exceptions, discharges are currently prohibited, 
allowing compliance with the federal court decision.  The discharges of pesticides that 
may be approved under this bill are discharges that are unintended and an incidental 
result of the spraying of pesticides, applied in compliance with federal labeling 
restrictions and applied in compliance with statute, Board of Pesticides Control rules and 
best management practices.