The Impact of National Pollutant Discharge Elimination System (NPDES) Permits on Pesticide Use

1. The Impact of National Pollutant Discharge Elimination System (NPDES) Permits on Pesticide Use Dirk Helder (208) 378-5749 U.S. Environmental Protection Agency Preliminary Agency Position Under Consideration - Working Draft

2. Nov. 2006-Final Clean Water Act (CWA) Pesticides Rule The application of a pesticide…under the Federal Insecticide Fungicide Rodenticide Act (FIFRA) does not constitute the discharge of a pollutant that requires an NPDES permit in the following two circumstances: 1. The application of pesticides directly to watersof the US to control pests, such as mosquito larvae, aquatic weeds, or other pests that are present in waters of the US; 2. The application of pesticides to control pests that are present over waters of the US, including near such waters, where a portion of the pesticides will unavoidably be deposited towaters to target pests such as aerial applications to a forest canopy where waters of the US are below or when pesticides are applied over or near water for control of adult mosquitoes or other pests. Preliminary Agency Position Under Consideration - Working Draft

3. Example: Direct Application to Water for Aquatic Pests (“To”)– Covered by 2006 Rule Preliminary Agency Position Under Consideration - Working Draft

4. Example: Aerial Mosquito Control (“Over”) – Covered by 2006 Rule Preliminary Agency Position Under Consideration - Working Draft

5. Example: Weed and Insect Control Near Water (“Near”)– Covered by 2006 Rule Preliminary Agency Position Under Consideration - Working Draft

6. Example: Off-Target Spray Drift. Not Covered by 2006 Rule Preliminary Agency Position Under Consideration - Working Draft

7. Challenge to 2006 CWA Pesticides Rule • December 2006 - petitions were filed in all 11 Circuit Courts. Petitions were consolidated in the 6th Circuit Court of Appeals. • January 2009 - 6th Circuit vacated the CWA pesticides rule, stating that the rule was not a reasonable interpretation of CWA. • Biological materials – are a “pollutant” because they “undeniably alter the physical integrity of the waters.” • Chemicals pesticides – are a “pollutant” because they leave a residue or waste. • June 2009 - 6th Circuit granted EPA a two-year stay of the mandate until April 9, 2011. Preliminary Agency Position Under Consideration - Working Draft

8. BackgroundResult of Court Actions • August 2009 - The 6th Circuit rejected industry’s request for a rehearing. • February 2010 - Supreme Court rejected industry’s request to review the case. • Today - NPDES permits are not required for pesticide applications applied to or over, including near waters of the U.S. • April 10, 2011 - Discharges into a water of the U.S. from pesticide applications will require an NPDES permit. Preliminary Agency Position Under Consideration - Working Draft

9. BackgroundCourse of Action • EPA will develop a Pesticide General Permit (PGP) for areas where EPA remains the NPDES permitting authority including Idaho. • EPA will work closely with the NPDES authorized States to concurrently develop their permits. Preliminary Agency Position Under Consideration - Working Draft

10. ScheduleEfforts to Date • Established State and Regional workgroups and have held regular conference calls with them. • Participated in numerous “listening sessions” with industry and environmental groups. • Developed a prototype general permit and shared with States and Regions at two face-to-face meetings in Kansas City (9/30-10/1/09) and Dallas (1/20-1/21/10). • Hosted webcasts (10/09; 1/10) for stakeholders (over 1,500 participants) and met with Pesticides Program Dialogue Committee (Federal Advisory Committee). • Established email listserv to promote EPA and state co-regulator dialogue. Preliminary Agency Position Under Consideration - Working Draft

11. Pesticide General Permit (PGP)Scope-Current Thinking • Pesticide uses to be covered under PGP: • Mosquito and Other Aquatic Nuisance Insect Control • Aquatic Weed and Algae Control • Area Wide Pest Control • Aquatic Nuisance Animal Control • Should other pesticide uses be in PGP? • Activities exempt from permitting under CWA • Irrigation Return Flow • Agricultural Stormwater Runoff

12. Pesticide General Permit (PGP)Water-Quality Based Effluent Limits All applicators-must meet a narrative Water Quality Based Effluent Limit (WQBEL), “Your discharge must be controlled as necessary to meet applicable water quality standards (WQS).” EPA expects that compliance with FIFRA plus compliance with permit conditions will generally control discharges to meet applicable water quality standards. Preliminary Agency Position Under Consideration - Working Draft 12

13. Pesticide General Permit (PGP) Technology Based Effluent Limits-Current Thinking All applicators-must follow basic Integrated Pest Management (IPM) practices: Minimize discharges Calibrate and maintain equipment Applicators above threshold-must follow comprehensive IPM practices: Identify/assess pest problem Assess effective pest management Follow appropriate procedures for pesticide use Preliminary Agency Position Under Consideration - Working Draft 13

14. Pesticide General Permit (PGP)Monitoring- Current Thinking All applicators-required to monitor, such as: Visual monitoring for adverse effects Monitoring of management practices Ambient water quality monitoring EPA assessing how best to gather pesticide water quality data to evaluate permit effectiveness. Preliminary Agency Position Under Consideration - Working Draft 14

15. Pesticide General Permit (PGP)Who Has to File NOI-Current Thinking • Applicators above threshold-Notice of Intent (NOIs) will be required for entities that exceed a pesticide application threshold. • The NOI filer would be the entity responsible for deciding to conduct the pesticide applications. • The applicator would need to file an NOI, if they exceed the application threshold for applications not already covered under another NOI. Preliminary Agency Position Under Consideration - Working Draft

16. Pesticide General Permit (PGP) Plan Development & Documentation • Applicators above threshold-Pesticide Discharge Management plan. • Contents include items such as application information, problem description, control measures, pest surveillance, spill control, adverse incident response. Preliminary Agency Position Under Consideration - Working Draft

17. Pesticide General Permit (PGP) Reporting and Recordkeeping • Adverse Incident Reporting • All applicators-report adverse incidents. Help identify possible permit violations & where permit modifications needed to further protect water quality. Preliminary Agency Position Under Consideration - Working Draft

18. Pesticide General Permit (PGP) Reporting and Recordkeeping • Annual Reporting • Applicators above threshold-submit annual reports documenting pesticide application activities. • Records • Applicators above threshold-pesticide management logs, adverse incident reports, corrective action documentation, IPM plans, annual reports, etc. • Kept on-site and accessed by public through requests to EPA.

19. ScheduleNext Steps Public Notice of Draft Permit – May 2010 Outreach/Webcast/Public Meetings June 16, 2010 Boise, ID Public Meeting Public Comment Period - June 2010 Issuance of Final Permit – Dec 2010 Permit Effective Date – April 9, 2011 Preliminary Agency Position Under Consideration - Working Draft 19

20. Questions & More Information www.epa.gov/npdes/agriculture Dirk Helder, U.S. EPA (208) 378-5749 Preliminary Agency Position Under Consideration - Working Draft