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Aquatic Laws, Aquatic Permits, MPDES, 308’s …what Pesticide Applicators Need to Know

Aquatic Laws, Aquatic Permits, MPDES, 308’s …what Pesticide Applicators Need to Know. MT Department of Environmental Quality (DEQ) Water Protection Bureau February 12, 2014 Christine Weaver. Basic Premise:.

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Aquatic Laws, Aquatic Permits, MPDES, 308’s …what Pesticide Applicators Need to Know

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  1. Aquatic Laws, Aquatic Permits, MPDES, 308’s …what Pesticide Applicators Need to Know MT Department of Environmental Quality (DEQ) Water Protection Bureau February 12, 2014 Christine Weaver

  2. Basic Premise: Unlawful to discharge to state waters without a valid wastewater discharge permit

  3. Wastewater Discharge Permits • MT DEQ Water Protection Bureau is the responsible agency in Montana, except EPA has jurisdiction within Indian Reservations. • Program is called the Montana Pollutant Discharge Elimination System (MPDES) • Some exemptions…

  4. History of Pesticide Permitting • FIFRA was historically the only national pesticide regulation. • EPA did not believe application of pesticides to water was regulated as discharge of a pollutant. • Federal Court January 2009 decision - pesticides discharged to water are pollutants that require a wastewater discharge permit.

  5. History of Pesticide Permitting • Court Decision means: wastewater discharge permits are required for all biological pesticide applications,and chemical pesticide applications that leave a residue in water. • Became effectiveNovember 1, 2011

  6. As of November 1, 2011 - • Illegal to apply pesticides to water without a wastewater discharge permit. • Federal – EPA’s Pesticide General Permit (PGP), e.g. within Indian Reservations • Delegated States –In Montana, DEQ is responsible for PGP. Montana Department of Agriculture is not involved in the PGP – MDA retains existing pesticide regulatory authority.

  7. How has pesticide discharge been permitted in Montana?

  8. State History - 308 Authorization Montana’s 308 Authorizationprogram existed since 1993. 308 Authorizations allowed‘temporary exceedence’ ofwater quality standards forapplication of pesticides. State law 75-5-308, MCA stillon the books – but MT PGP replaced the 308 program in 2011.

  9. What is the PGP? • PGP = Wastewaterdischargepermit • Regulates pesticide application to surface waters • Montana’s PGP developed in conformance with national requirements. • Responsible party must submit request (NOI) to be covered under the General Permit. • “Insurance” • Protects against citizen lawsuits

  10. MT PGP – Who is subject? Anyone that discharges any pesticide into or over “statesurface waters” in Montana (no threshold for applicability). Exception: EPA regulates within boundaries of Indian lands, through the national PGP Responsible party = “owner/operator”

  11. State Waters “State waters” means a body of water, irrigation system, or drainage system…The term does not apply to: (i) ponds or lagoons used solely for treating, transporting, or impounding pollutants; or (ii) irrigation waters or land application disposal waters when the waters are used up … and the waters are not returned to state waters.

  12. PGP exemptions & exceptions … Do not need to apply for coverage under PGP if pesticide application is: • Not to state water: wastewater lagoons and non-returning irrigation canals are not regulated by DEQ. • Not a point discharge: • Storm water discharge • Spray drift • Applications made “near” (but NOT in or over) state surface water • DEQ will not authorize the discharge of a pesticide that is not labeled for use in water under FIFRA

  13. Owner/Operator… “…means a person who owns, leases, operates, controls, or supervises a point source. For the MT PGP, this could include: • Entity with control over the financing or decision to perform pesticide applications, (i.e., county weed control district, BLM); or • Entity with day-to-day control (i.e., pesticide applicators).

  14. Requesting PGP Coverage • Decide if you are subject: • Plan to apply pesticide to state water? • Are owner/operator? • Complete Notice of Intent (NOI) for coverage under the General Permit

  15. NOI classifications • Will the pesticide application occur in onecounty ormultiple counties? • What type(s) of pesticide use patterns and what is the total annual acreage that you intend to treat for each? • Tier I (no threshold) vs. Tier II

  16. MT PGP Tier II Annual Thresholds

  17. Threshold Area Calculations Include: (1) state surface waters that contain water at the time of pesticide application, and (2) conveyances with a hydrologic surface connection to state surface water at the time of pesticide application.  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.

  18. MT PGP Program – General Requirements • Submit fee • Submit complete Notice of Intent (NOI) Form • Comply with PGP

  19. “New Permit” Fee (application fee + first annual): • Less than Annual Threshold (Tier I) • Single-County $50 • Multi-County $100 • Greater than Annual Threshold (Tier II) • Single-County $500 • Multi-County $1200

  20. Notice of Intent (NOI) Package • Real-time authorization (authorized upon DEQ’s receipt of complete NOI package). • DEQ will send letter of acknowledgement to all applicants, including NOI #MTG870xxx. • Authorized for five years/General Permit renewal unless terminated (Form NOT). • Current General Permit expires October 31, 2016

  21. NOI Certification • A principal officer for the designated owner/operator must certify the NOI. • Certification attests to accuracy & completeness of NOI, as well as compliance with PGP.

  22. MT PGP Requirements Remember… Certification of the NOI attests to compliance with the MT PGP! What are you agreeing to?

  23. Requirements for Tier I vs. Tier II • Tier I – general requirements for all owners/operators subject to PGP. • Tier II – includes above, PLUS additional regulatory requirements for “over threshold” (larger) owner/operators.

  24. Tier I Effluent Limits Apply pesticides within labeled rates and/or in accordance with pesticide use directions under FIFRA and other state pesticide requirements.

  25. Tier I Monitoring Document the rationale for determining the type & amount of pesticide used Satisfied by having the pesticide label available.

  26. Tier I Reporting • Adverse incident reporting required within 24-hrs & follow-up written report within 5 days of becoming aware of an adverse incident. • Adverse incident = unusual or unexpected effects on nontarget organisms.

  27. Tier I Recordkeeping Records to be maintained: • Copy/access to MT PGP • NOI Copy • DEQ Authorization Letter MAINTAIN RECORDS FOR 3 YEARS

  28. Tier II (Greater than Threshold) Additional requirements for larger owner/ operators: • Pesticide management plan • Maintenance • Calibration (and recordkeeping) • Annual Report (AR-3)

  29. Tier II – Special Condition: Pesticide Discharge Management Plan (PDMP) • PDMP must be reviewed at least annually and updated as needed. • May reference existing documents such as Integrated Pest Management (IPM) Plans and weed control plans as appropriate.

  30. Tier II Effluent Limits • Ensure pesticide application equipment is maintained in proper operating condition by inspecting, cleaning and repairing such equipment on a regular basis. Applicant determines & documents what maintenance is required.

  31. Tier II Effluent Limits • Ensure pesticide application equipment is calibrated in order to have effective pesticide application and pest control by adhering to any manufacturer’s conditions and industry practices. Applicant determines what manufacturer’s conditions and industry practices apply to their equipment and maintains calibration records.

  32. Tier II Monitoring • Conduct appropriate visual monitoring: • spot checks for adverse incidents, such as fish kills or distressed macro-invertebrates • assessments during pesticide application when feasible • post-application assessment for efficacy if normally performed.

  33. Tier II Reporting Tier II applicants must submit an annual report: • Form AR-3 - due to DEQ each year by January 28th

  34. Tier II Recordkeeping In addition to Tier I basic records, Tier II applicants must also maintain: • PDMP, including updates • Pesticide application information • Copies of or access to documentation of equipment calibration records • Post-application monitoring including any unusual or unexpected effects identified to non-target organisms MAINTAIN RECORDS FOR 3 YEARS

  35. By November 1, 2016… • DEQ is responsible for renewing the PGP. • Each owner/operator is responsible for submitting updated NOI prior to permit expiration date (unless authorization termination already requested through Notice of Termination (NOT) form).

  36. MT PGP • Website to keep current information @ http://deq.mt.gov/wqinfo/mpdes/pesticides.mcpx • Contact : Christine Weaver at 406-444-3927 or email cweaver@mt.gov Jeff Ryan at 406-444-4626 or email jeryan@mt.gov

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