On October 31, 2011, the EPA finalized a general permit under the Clean Water Act National Pollutant Discharge Elimination System (NPDES) for pesticide applications [76 FR 68750, November 7, 2011
]. This action is the final step in fulfilling the Agency’s obligations in response to the Sixth Circuit’s vacature of the 2006 NPDES Pesticides [National Cotton Council of America v. EPA, January 7, 2009, 553 F.3d 927
]. Based on the National Cotton Council of America case, beginning October 31, 2011, any person discharging biological pesticides and chemical pesticides leaving a residue through a point source to waters of the United States will be required to obtain an NPDES permit beforehand. Activities for which the general permit were established include:
- Mosquito and other flying insect pest control
- Weed and algae pest control on the water and water’s edge
- Animal pest control (e.g., fish, lampreys, insects, mollusks, and pathogens)
- Forest canopy pest control where pesticides will be unavoidable applied over and deposited into water
Becoming Subject to the General Permit
As with other general NPDES permits, 40 CFR 122.28 typically requires that a person covered by a general permit must submit a Notice of Intent (NOI) prior to commencing discharge activities. The Pesticides General Permit (PGP) does exclude a few covered persons from having to submit an NOI, including persons applying over relatively small areas and certain for-hire applicators [Table 1.1, Part 1.2.2 of the PGP]. Persons excluded from the NOI requirements are still expected to comply with all aspects of the general permit.
The PGP contains non-numeric technology-based limits that are unique to each of the four covered categories. However, each category is required to annually identify the pest problem and evaluate the various options, including pesticide application. When pesticide application is selected, the permit holder must have a surveillance program to evaluate the application process and determine when the action threshold has been achieved.
Visual monitoring must be conducted during and following pesticide applications. The monitoring must be designed to observe adverse incidents as defined in the permit, including unanticipated death or distress of non-target organisms, disruption of wildlife habitat, and disruption of recreational and municipal water use.
Any person qualifying as a large entity must prepare a Pesticide Discharge Management Plan (PDMP). The PDMP must include:
- A pesticide discharge management team
- Problem identification
- Pesticide management options evaluation
- Response procedures, including spill response and adverse incident response
- Documentation to support eligibility
- Signature requirements
A copy of the PDMP must be available for inspection and may be distributed to the public by the EPA. The PGP considers a large entity to be any covered applicator that is not a small business as defined at 13 CFR 121 or a municipal government serving more than 10,000.
If the permit holder observes a qualifying adverse incident, a telephone notice must be made to the EPA within 24 hours. Follow-up written reporting is required within 30 days of a reportable adverse incident.
The PGP is available to any covered person in regions where the EPA is the NPDES-permitting authority. If a state or tribe is the NPDES permitting authority, a person discharging pesticide into a water of the United States must obtain an individual permit or comply with a state-developed general permit.
For more information regarding the PGP, including a copy of a detailed fact sheet, please review the EPA’s Web site http://www.epa.gov/npdes