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July 6, 2010

EPA Holds Meeting Concerning Draft NPDES General Permit

Bergeson & Campbell, P.C.

On Wednesday, June 23, 2010, the U.S. Environmental Protection Agency (EPA) held a public hearing on the draft National Pollutant Discharge Elimination System (NPDES) Pesticides General Permit (PGP). This hearing, along with three previous public meetings, was held during the 45-day public comment period (through July 19, 2010) on the draft PGP for point source discharges from the application of pesticides to waters of the U.S. EPA proposed the PGP in response to the 2009 decision by the Sixth Circuit Court of Appeals in National Cotton Council, et al. v. EPA. In National Cotton Council, the court vacated EPA’s 2006 rule that stated pesticides were not pollutants under the Clean Water Act (CWA) and, therefore, pesticide applications to U.S. waters did not require NPDES permits. EPA requested a two-year stay of the mandate, which the court granted to allow time to draft and execute the PGP. The stay will remain effective until April 9, 2011. EPA has stated that it intends to issue the PGP in final in December 2010.

Presenters at the June 23, 2010, public hearing included:

  • Allison Wiedeman, Chief, Rural Branch, Water Permits Division, EPA Headquarters; and
  • Jack Faulk, Project Team Leader, EPA Headquarters.

The presentation is available online.

Wiedeman provided a background and overview of the draft permit and its requirements. There are two types of permits: individual and general. NPDES-authorized states issue an individual permit when an application is completed, and it will include detailed information indicating the specific discharges covered under the permit, including the nature and concentration of discharges. For a PGP, according to EPA’s June 4, 2010, Federal Register notice, one permit is issued per state when a Notice of Intent (NOI) is submitted by each permittee, and must identify: area of coverage, sources covered, and other information. The PGP would authorize point source discharges to waters of the U.S. from the application of biological pesticides, and chemical pesticides that leave a residue. The draft PGP would cover the following pesticide use patterns:

  • Mosquito and other flying insect pest control;
  • Aquatic weed and algae control;
  • Aquatic nuisance animal control; and
  • Forest canopy pest control.

EPA estimates that the above-listed use patterns will affect approximately 35,000 pesticide applicators across the U.S. that perform nearly half a million pesticide applications yearly in states where EPA has NPDES permitting authority.

Once the PGP is issued in final, it will be available in:

  • Alaska, Idaho, Massachusetts, New Hampshire, New Mexico, and Oklahoma;
  • All U.S. territories except the Virgin Islands and including Washington, DC and Puerto Rico;
  • Most tribal lands; and
  • Federal facilities in four additional states (Colorado, Delaware, Vermont, and Washington) where EPA is the authorized NPDES permitting authority.

EPA will continue to work closely with the remaining 44 states (and the Virgin Islands) to develop and issue the NPDES pesticide permits.

Outside the scope of the PGP are:

  • Terrestrial applications to control pests on agricultural crops or forest floors;
  • Off target spray drift; and
  • Activities exempt from permitting under the CWA, such as irrigation return flow and agricultural stormwater runoff.

The following discharges are not authorized under the PGP:

  • Discharges of pesticides to waterbodies that are impaired under CWA Section 303(d) for that pesticide or its degradates;
  • Discharges to Tier 3 waterbodies; and
  • Discharges from other pesticide uses not specifically eligible for coverage.

EPA will request public comments on whether other types of pesticide applications contain discharges that should also be covered under the PGP, in addition to the pesticide uses listed above.

The PGP identifies an operator as any entity involved in the application of a pesticide that results in a discharge to waters of the U.S. An operator must meet at least one of the following two criteria:

  • The entity has control over the financing for or the decision to perform pesticide applications; or
  • The entity has day-to-day control of or performs activities that are necessary to ensure compliance with the permit.

EPA also defines who has to file an NOI. An NOI will be required for entities that know or reasonably should have known that they will exceed any of the pesticide application thresholds (see table below). In most circumstances, the NOI filer would be the entity with financial control or the ability to decide to perform pesticide applications. Any contract applicator would need to file an NOI, however, if it exceeds the application threshold for any applications not already covered under another NOI.

PGP PartPesticide UseAnnual Threshold
Part 2.2.1Mosquitos and Other Flying Insect Pest Control640 acres of treatment
Part 2.2.2Aquatic Weed and Algae Control 
 In Water20 acres of water treatment area (1)
 At Water’s Edge20 linear miles at water’s edge (2)
Part 2.2.3Aquatic Nuisance and Animal Control 
 In Water20 acres of water treatment area (1)
 At Water’s Edge20 linear miles at water’s edge (2)
Part 2.2.4Forest Canopy Pest Control640 acres of forest canopy
  1. Calculations should include the area of the applications made to: (1) waters of the U.S. and (2) conveyances with a hydrologic surface connection to waters of the U.S. at the time of pesticide application. For calculating annual treatment area totals, count each pesticide application activity as a separate activity. For example, applying pesticides twice a year to a ten acre site should be counted as twenty acres of treatment area.
  2. Calculations should include the area of the application made at water’s edge adjacent to: (1) waters of the U.S. and (2) conveyances with a hydrologic surface connection to waters of the U.S. at the time of pesticide application. For calculating annual treatment totals, count each pesticide application activity as a separate activity. For example, treating both sides of a ten mile ditch is equal to twenty miles of water treatment area.

The draft PGP would require all permittees to minimize discharges by: using the lowest effective amount of pesticide; performing regular maintenance; and calibrating, cleaning, and repairing equipment. Operators submitting NOIs would also be required to implement additional Integrated Pest Management (IPM) Practices: identify and assess the pest problem; assess the pest management alternatives; and follow the appropriate procedures for pesticide use. The draft PGP would contain a narrative water-quality based effluent limitation applicable to all operators covered under the permit: “Your discharge must be controlled as necessary to meet applicable numeric and narrative state, territory, or tribal water quality standards.” EPA states that it expects that compliance with the Federal Insecticide, Fungicide, and Rodenticide Act, plus compliance with permit conditions, “will generally control discharges as necessary to meet applicable water quality standards.” The draft PGP would also include monitoring for all permittees: visual monitoring for adverse effects or incidents during application and during any post-application surveillance; and monitoring of management practices. Operators who submit NOIs would also be required to prepare a Pesticide Discharge Management Plan; submit annual reports documenting pesticide application activities; report adverse incidents; and maintain pest control practice records.