Pesticides
Frequently Asked Questions
The following is a list of Frequently Asked Questions for Pesticides organized from general questions about the NPDES Program to more technical questions about Pesticides.
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I. PESTICIDE ACTIVITIES THAT REQUIRE AN NPDES PERMIT
- Why are NPDES permits required for pesticide applications?
- When are NPDES permits required for pesticide applications?
- Which pesticide application activities require NPDES permits?
- What if the label for a pesticide says it is approved for use in aquatic environments (i.e., use in water)? Do discharges to waters of the United States resulting from these pesticide applications still need an NPDES permit?
- What if the label for a pesticide says it is not approved for use in water? Do discharges from these pesticides need an NPDES permit?
- Is an NPDES permit required for discharges from pesticides applications that only occur for a short time?
- Do any of the following affect whether an NPDES permit is required for my pesticide discharge:
- Method of application (e.g., using hand sprayers, vehicle-mounted tanks with sprayer nozzles, or fixed- or rotary-wing aircrafts, etc.)
- Type of product (e.g., adulticides, larvacides, herbicides, insecticides, piscicides, algaecides, rodenticides, fungicides, etc.); or
- Industry (e.g., utility right-of-way, agricultural, golf course, railroad track maintenance, irrigation control, mosquito control, etc.)?
- Are federal agencies required to obtain NPDES permits for their pesticide applications?
- Are federal agencies required to obtain an NPDES permit for pesticide applications conducted on federal property but where those applications are operated by a non-federal lessee or similar non-federal party?
- How close to waters of the United States do my applications have to be to require an NPDES permit?
- How does the EPA define “near” waters of the United States?
- Is an NPDES permit required for pesticides applied to waters of the United States that are dry at the time of the discharge?
- How does one determine whether a discharge occurs to waters of the United States (for example, if the discharge is to dry ditches along public roads)?
- Is an NPDES permit required for chemical pesticide applications that do not leave a residue?
- Are there thresholds for application areas below which an NPDES permit is not required? For example, are Operators exempt from NPDES permitting for pesticides applied below the “annual treatment area threshold” values listed in the EPA’s Pesticide General Permit (e.g., 80 acres, 20 linear miles, 6400 acres)?
- Did the Sixth Circuit Court of Appeals’ decision address pesticide applications made to locations other than to waters of the United States where, for example, other NPDES permits may already exist for discharges from the facility/site?
- Does obtaining an NPDES permit expose pesticide applicators to increased legal liabilities?
II. DIFFERENT NPDES PERMITS THAT ARE AVAILABLE FOR PESTICIDE APPLICATIONS
III. ELIGIBILITY CRITERIA FOR THE EPA’S PESTICIDE GENERAL PERMIT
IV. WHO IS RESPONSIBLE FOR OBTAINING PERMIT COVERAGE UNDER THE EPA’s PGP?
V. HOW TO OBTAIN PERMIT COVERAGE UNDER THE EPA’s PGP (INCLUDING SUBMISSION OF NOTICES OF INTENT)
VI. REQUIREMENTS FOR OPERATORS WHO ARE COVERED UNDER THE PGP
VII. DECLARED PEST EMERGENCY
I. PESTICIDE ACTIVITIES THAT REQUIRE AN NPDES PERMIT
Why are NPDES permits required for pesticide applications?
Section 301(a) of the Clean Water Act (CWA) prohibits any point source discharge of a pollutant to waters of the United States unless the discharge is in compliance with certain sections of the Act. One way a person may discharge pollutants without violating the Section 301 prohibition is by obtaining authorization under a Section 402 National Pollutant Discharge Elimination System (NPDES) permit.
The requirement to obtain NPDES permits for point source discharges from pesticide applications to waters of the United States stems from a 2009 decision by the Sixth Circuit Court of Appeals. In its ruling on National Cotton Council, et al. v. EPA, the Court vacated the EPA’s 2006 rule which said NPDES permits were not required for discharges of pesticides to waters of the United States for applications of pesticides to, or over, including near such waters when in compliance with the existing label (per the Federal Insecticide, Fungicide, and Rodenticide Act, or “FIFRA”). In its ruling, the Sixth Circuit determined that (1) biological pesticides and (2) chemical pesticides that leave a residue are pollutants as defined under the CWA and as such are subject to regulations applicable to pollutants. Courts have previously determined that applications of pesticides, such as from nozzles of planes and trucks, irrigation equipment, etc. are point sources. As a result of the Sixth Circuit’s decision, point source discharges to waters of the United States from the application of pesticides require NPDES permits as of October 31, 2011.
When are NPDES permits required for pesticide applications?
A National Pollutant Discharge Elimination System (NPDES) permit is required for discharges of pollutants from pesticide applications as of October 31, 2011.
Which pesticide application activities require NPDES permits?
National Pollutant Discharge Elimination System (NPDES) permits are required for any point source discharge to waters of the United States from the application of (1) biological pesticides and (2) chemical pesticides that leave a residue. The EPA identified four pesticide use patterns that generally include the full range of pesticide application activities that meet this condition, including mosquitoes and other flying insect pests, weeds and algae, animal pests, and forest canopy pests. This includes point source discharges from entities such as irrigation and mosquito control districts, federal, state, and local governments, and for-hire pesticide applicators.
NPDES permits are not required for non-point source discharges. The Clean Water Act (CWA) also exempts discharges of agricultural stormwater or irrigation return flow from the need for NPDES permits. Furthermore, in promulgating the 2006 NPDES Pesticides Rule, the EPA expressly noted that the Rule did not cover applications of pesticides to terrestrial agricultural crops where runoff from the crop, either as irrigation return flow or agricultural stormwater, discharges into waters of the United States. It is important to note that if the pest to be targeted is a distance from waters of the United States, but that application is made such that a portion of the pesticide will be unavoidably deposited to waters of the United States and result in a discharge (for example, an application is made on a creek bank), an NPDES permit is required.
What if the label for a pesticide says it is approved for use in aquatic environments (i.e., use in water)? Do discharges to waters of the United States resulting from these pesticide applications still need an NPDES permit?
Yes. National Pollutant Discharge Elimination System (NPDES) permits for pesticide discharges to waters of the United States are required under the Clean Water Act (CWA). In addition to NPDES permits, the user of the pesticide must follow the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) label. The CWA and FIFRA requirements operate independently of each other. This permit does not negate the requirements under FIFRA and its implementing regulations to use registered pesticides consistent with the product’s labeling. Applications in violation of certain FIFRA requirements could also be a violation of the permit and therefore a violation of the CWA (e.g., exceeding label application rates).
What if the label for a pesticide says it is not approved for use in water? Do discharges from these pesticides need an NPDES permit?
Possibly. Some pesticide labels refer to “water” and not “waters of the United States.” It is possible that some pesticide products that are not approved for use in “water” may result in discharges to waters of the United States. For example, waters of the United States may be dry at the time of pesticide application, such as during applications for weed control in dry washes and ephemeral streams on forest or range lands. As such, there may be situations where pesticide applications to temporarily dry waters of the United States are performed using pesticides labeled for terrestrial or seasonally-dry use. The National Pollutant Discharge Elimination System (NPDES) permit requirements apply regardless of whether the waters of the United States are wet or dry at the time of the discharge.
Is an NPDES permit required for discharges from pesticides applications that only occur for a short time?
Yes. All applications of (1) biological pesticides and (2) chemical pesticides that leave a residue, in which applications are made directly to waters of the United States, or where a portion of the pesticide will unavoidably be deposited to waters of the United States, are required to be covered under a National Pollutant Discharge Elimination System (NPDES) permit. The Clean Water Act does not provide the EPA with the authority to exclude certain types of discharges from the need to obtain permit coverage, such as small “de minimus” or short-term discharges, discharges from emergency situations (except in very limited circumstances as described in 40 CFR 122.3(d) where discharge is in compliance with the instructions of an On-Scene Coordinator), or discharges to “small” waters of the United States.
Do any of the following affect whether an NPDES permit is required for my pesticide discharge:
- Method of application (e.g., using hand sprayers, vehicle-mounted tanks with sprayer nozzles, or fixed- or rotary-wing aircrafts, etc.)
- Type of product (e.g., adulticides, larvacides, herbicides, insecticides, piscicides, algaecides, rodenticides, fungicides, etc.); or
- Industry (e.g., utility right-of-way, agricultural, golf course, railroad track maintenance, irrigation control, mosquito control, etc.)?
No. National Pollutant Discharge Elimination System (NPDES) permits are required for any pesticide applications that result in discharges to waters of the United States (unless exempted irrigated return flow or agricultural stormwater), regardless of the method of application, type of product, or industry.
Are federal agencies required to obtain NPDES permits for their pesticide applications?
Yes. For determining the need for National Pollutant Discharge Elimination System (NPDES) permit coverage, federal agencies are not treated differently than any other discharger and thus, are required to obtain NPDES permits for any pesticide applications that result in discharges to waters of the United States.
Are federal agencies required to obtain an NPDES permit for pesticide applications conducted on federal property but where those applications are operated by a non-federal lessee or similar non-federal party?
It depends. The National Pollutant Discharge Elimination System (NPDES) regulations, at 40 CFR §122.21(b), require that when a facility or activity is owned by one entity but operated by another, it is the Operator’s duty to obtain a permit. The EPA, in its pesticide general permit (PGP), defines “Operator” as any entity associated with the application of pesticides which results in a discharge to waters of the United States that meets either of the following two criteria: (1) any entity who performs the application of a pesticide or who has day-to-day control of the application (i.e., they are authorized to direct workers to carry out those activities), or (2) any entity with control over the decision to perform pesticide applications including the ability to modify those decisions. Thus, in certain instances, more than one entity may meet the definition of “Operator.” In these instances, each Operator is required to be covered under an NPDES permit.
If a federal agency leases land to, or enters into a purchase agreement with, another entity (such as for grazing, operating a ski resort, exploring for or producing oil and gas, or managing and harvesting timber), the lessee or purchaser generally is required to obtain an NPDES permit as the “Operator” of those pesticide activities. A possible exception to the lessee/purchaser scenario described above would be if the lease agreement contains specific language imposing pesticide application requirements (i.e., detailing how the lessee is to control pests). Such requirements might also specify the timing of applications, chemical/product types, application rates, or specific weeds or other pests to be controlled on the lease. Such language may indicate that the federal agency is controlling the pesticide application decision, and therefore is an Operator as is the entity who is applying the pesticides.
The EPA, in its PGP, used the terms “Decision-maker” and “Applicator” to assign responsibilities for complying with the permit. The different terms acknowledge the different roles that these two types of Operators play in the process of applying pesticides. By definition, both are required to obtain NPDES permit coverage.
How close to waters of the United States do my applications have to be to require an NPDES permit?
If a pesticide discharge occurs directly to waters of the United States, a National Pollutant Discharge Elimination System (NPDES) permit is required. If the pest to be targeted is at a distance from waters of the United States, but that application is made such that a portion of the pesticide will be unavoidably deposited to waters of the United States (for example, an application is made on a creek bank), an NPDES permit is required.
How does the EPA define “near” waters of the United States?
Although the Sixth Circuit Court of Appeals did not define the term “near” in the context of the 2006 Pesticides Final Rule, the EPA interprets this term to refer to the unavoidable discharge of pesticides to waters of the United States in order to target pests in close proximity to but not necessarily in such waters. For example, this can occur while treating weeds along the bank of a ditch. The EPA does not use or define the term “near” in its pesticide general permit or elsewhere in its regulations.
Is an NPDES permit required for pesticides applied to waters of the United States that are dry at the time of the discharge?
Yes. If a permitting authority determines that the pesticide application will indeed result in a discharge to waters of the United States, a National Pollutant Discharge Elimination System (NPDES) permit is required. A water of the United States does not lose its jurisdictional status if it becomes dry during extraordinary circumstances such as drought or if it flows continuously during parts of the year and has no flow during dry months. A discharger will need a permit regardless of whether the waters of the United States are wet, partially wet, or dry at the time of the discharge.
How does one determine whether a discharge occurs to waters of the United States (for example, if the discharge is to dry ditches along public roads)?
The determination of whether a discharge from the application of pesticides requires a National Pollutant Discharge Elimination System (NPDES) permit requires a site-specific evaluation of whether that discharge will be made to (i.e., within the boundary of) “waters of the United States” or to an area with a direct hydrologic surface connection to waters of the United States at the time of application. This determination is to be made based on the definition of “waters of the United States” in the EPA’s and the U.S. Army Corps of Engineers’ respective regulations at 40 C.F.R. 122.2 and 33 C.F.R. 328.3(a), in accordance with principles enunciated in the U.S. Supreme Court’s opinions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v.United States, 547 U.S. 715 (2006). The boundary of such waters, i.e., the landward limit of waters of the United States, is defined as the ordinary high water mark in non-tidal waters and the high tide line in tidal waters, and when adjacent wetlands are present, the limit of jurisdiction extends to the limit of the wetland.
The ordinary high water mark is the line on shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding area.
The high tide line is the line or mark left upon tide flats, beaches, or along shore objects that indicates the intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined by tidal gages, physical markings or characteristics, vegetation lines, a more or less continuous deposit of fine shell or debris on the foreshore or berm, or other suitable means such as a line of oil or scum along the shore that delineate the general height reached by a rising tide. The term includes spring high tides and other high tides that occur with periodic frequency, but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm (See http://www.nae.usace.army.mil/Regulatory/JD/JurisdictionLimits.pdf.)
Additional information on the EPA’s interpretation and implementation of the term “waters of the United States” can be accessed from the EPA’s website. Interested parties may also contact their NPDES permitting authority.
Is an NPDES permit required for chemical pesticide applications that do not leave a residue?
No. A National Pollutant Discharge Elimination System (NPDES) permit would not be necessary if it is determined that a residual did not enter waters of the United States. However, if a chemical pesticide is discharged to waters of the United States, any excess pesticides or pesticides that no longer provide any pesticidal benefit that remain in those waters are considered “residual.” Thus, the EPA expects that some portion of every pesticide applied to waters of the United States will leave a residual in those waters. As such the EPA assumes that every application of chemical pesticides to waters of the United States will trigger the requirement for an NPDES permit.
The EPA recommends that an entity applying chemical pesticides with a discharge to waters of the United States who disagrees with this assumption be able to provide scientific data supporting such a determination. Such data should show what level of the pesticide can be detected in water, and at what level in water the pesticide provides a pesticidal benefit. Such data should address the properties of the chemical pesticide under different water conditions (e.g., different pH, organic content, temperature, depth, etc.) that might affect the pesticide’s properties. A permit would not be necessary if the data indicates that a residual does not enter waters of the United States.
Are there thresholds for application areas below which an NPDES permit is not required? For example, are Operators exempt from NPDES permitting for pesticides applied below the “annual treatment area threshold” values listed in the EPA’s Pesticide General Permit (e.g., 80 acres, 20 linear miles, 6400 acres)?
No. There are no threshold values in the National Pollutant Discharge Elimination System (NPDES) program to determine whether or not NPDES permit coverage is required for pesticide discharges. NPDES permit coverage, either under an individual permit or a general permit, is required for all applications of biological pesticides, and chemical pesticides that leave a residue, when applications are made directly to waters of the United States or where a portion of the pesticide will unavoidably be deposited to waters of the United States.
The “annual treatment area threshold” values listed in the EPA’s Pesticide General Permit (PGP) establish whether or not Operators must submit a Notice of Intent (NOI) to obtain coverage under the EPA’s PGP and comply with more comprehensive permit requirements.
Did the Sixth Circuit Court of Appeals’ decision address pesticide applications made to locations other than to waters of the United States where, for example, other NPDES permits may already exist for discharges from the facility/site?
No. Pesticide discharges from industrial operations where pesticides are applied within a facility/site for control of pests within the process/site and then ultimately discharged via end-of-pipe were not part of the National Cotton Council, et al. v. EPA lawsuit or Sixth Circuit Court of Appeals’ decision. National Pollutant Discharge Elimination System (NPDES) permit coverage has been required for those types of pesticide discharges since the inception of the NPDES program. For example, discharges to waters of the United States from the application of pesticides for the control of zebra mussels within a piped cooling system required NPDES permit coverage prior to the Sixth Circuit Court of Appeals’ decision. Such is still the case.
Does obtaining an NPDES permit expose pesticide applicators to increased legal liabilities?
No. In fact, the opposite is true. Any Operator who does not have a National Pollutant Discharge Elimination System (NPDES) permit, and whose application of pesticides results in a discharge to waters of the United States, is discharging illegally and may be in violation of the Clean Water Act. An NPDES permit authorizes the discharge of pollutants provided all of the permit conditions are met and thus, obtaining an NPDES permit and complying with the terms of an NPDES permit actually shields the Operator from liability, including certain forms of third party citizen suit liability.
II. DIFFERENT NPDES PERMITS THAT ARE AVAILABLE FOR PESTICIDE APPLICATIONS
Which government agencies issue NPDES permits?
The Clean Water Act (CWA) establishes a framework that provides the ability for states and territories to assume responsibility for administering National Pollutant Discharge Elimination System (NPDES) permits. Most states and the Virgin Islands have obtained this authority and as such are the ones issuing the NPDES permits. Typically it is the state environmental protection agencies that issue these permits. However, the EPA still issues permits in certain areas and for certain types of discharges where states, territories, and tribes have not obtained NPDES permitting authority. As of October 31, 2011, areas where the EPA is still the authorized NPDES permitting authority for pesticide discharges are as follows:
- Alaska (note: the state will take over permitting on 10/31/2012)
- Idaho
- Massachusetts
- New Hampshire
- New Mexico
- Oklahoma
- Texas, but only for activities associated with oil and gas, or geothermal resources
- Washington, DC
- Puerto Rico plus all other U.S. territories except the Virgin Islands
- Indian Country lands nationwide except within the State of Maine
- Federal facilities in four additional states:
- Colorado
- Delaware
- Vermont
- Washington (federal facilities in other NPDES-authorized states must seek coverage under a state-issued NPDES permit)
A detailed list of the areas where the EPA is the NPDES permitting authority for pesticide discharges is available at: http://www.epa.gov/npdes/pubs/pgp_appc.pdf.
The remaining 44 states (and the Virgin Islands) are authorized to administer the NPDES permitting program, and as such, are responsible for developing and issuing their own state NPDES pesticide permits.
If an Operator has discharges in more than one state, what should the Operator do to obtain permit coverage?
Operators must obtain permit coverage separately for each state where their discharges will occur. For example, if the discharges will occur in Oklahoma and Arkansas, the Operator must obtain a permit from the EPA for the discharges in Oklahoma (since it is an EPA-administered area), and a permit from Arkansas for the discharges in Arkansas.
Where can an Operator find more information on National Pollutant Discharge Elimination System (NPDES) pesticide permitting in their state?
Information on applicable pesticide permitting in each state can be accessed from the pesticides home page. Contact information and permitting details for NPDES-authorized states can be accessed at the pesticides contacts page.
If an NPDES-authorized state does not have a general permit for pesticide discharges, what should Operators do to obtain permit coverage?
In this instance, the only permitting option available is for the Operator to apply for a National Pollutant Discharge Elimination System (NPDES) individual permit by submitting a permit application to the state.
Is there a fee for coverage under an NPDES permit?
The EPA does not charge a fee for applying for or obtaining coverage under any National Pollutant Discharge Elimination System (NPDES) permit; however, many of the NPDES-authorized states do charge fees for permit applications, Notices of Intent, and/or permit coverage.
What types of NPDES permits are available for pesticide applications that result in discharges to waters of the United States?
The National Pollutant Discharge Elimination System (NPDES) program provides for two types of permits: individual and general. Permitting authorities may develop general permits in part to reduce administrative burdens associated with individual permits for Operators. Without coverage under a general permit, any pesticide discharge to waters of the United States that requires coverage under an NPDES permit must be controlled under an individual permit.
What are the primary differences between an NPDES individual permit and an NPDES general permit?
A National Pollutant Discharge Elimination System (NPDES) individual permit is written to reflect site-specific conditions of a single discharger (or in rare instances to multiple co-permittees) based on information submitted by that discharger in a permit application and is unique to that discharger whereas an NPDES general permit is written to cover multiple dischargers with similar operations and types of discharges based on the permit writer’s professional knowledge of those types of activities and discharges. Individual permits are issued directly to an individual discharger whereas a general permit is issued to no one in particular with multiple dischargers obtaining coverage under that general permit after it is issued, consistent with the permit eligibility and authorization provisions. As such, dischargers covered under general permits know their applicable requirements before obtaining coverage under that permit. Furthermore, obtaining coverage under a general permit is typically quicker than an individual permit with coverage under a general permit often occurring immediately (depending on how the permit is written) or after a short waiting period. Coverage under an individual permit may take six months or longer.
What is the process for applying for coverage under an NPDES general permit?
National Pollutant Discharge Elimination System (NPDES) general permits do not require that Operators “apply” for coverage; rather, general permits typically rely on the submission of a document called a Notice of Intent (NOI). An NOI differs from an individual permit application in that it is submitted by Operators after the general permit is issued by the permitting authority. An NOI for a general permit is a notice to the NPDES permitting authority of an Operator’s intent to be covered under a general permit, and typically contains basic information about the Operator and the planned discharge for which coverage is being requested. Some general permits, such as the EPA’s Pesticide General Permit, automatically cover some Operator discharges without submission of an NOI. In these instances, Operators must comply with applicable permit requirements for their pesticide applications without submission of any paperwork to the permitting authority (or in some instances, submission of some other type of notification document).
How do Operators apply for coverage under an NPDES individual permit?
An Operator must submit a permit application to apply for coverage under a National Pollutant Discharge Elimination System (NPDES) individual permit. The application form must be submitted to the permitting authority at least180 days before the expected commencement of the discharge. NPDES permit application requirements are in Part 122, Subpart B and identified on forms developed by the EPA. NPDES-authorized states are not required to use the EPA application forms; however, any alternative form used by an NPDES-authorized state must include the federal requirements at a minimum. The EPA’s application forms are available at the permit applications and forms page.
How are the requirements developed in NPDES permits for pesticide discharges?
National Pollutant Discharge Elimination System (NPDES) permits must contain permit conditions determined necessary to meet the Clean Water Act (CWA) and NPDES regulatory requirements for controlling discharges of pesticides to waters of the United States. For example, the EPA’s Pesticide General Permit (PGP) includes both technology-based effluent limitations and water quality-based effluent limitations as necessary, which is consistent with CWA requirements. Since there are no national effluent limitation guidelines for such discharges, the EPA developed the PGP’s effluent limitations based on permit writer’s Best Professional Judgment (BPJ) necessary to meet the requirements of the CWA. NPDES permits also contain many other conditions (e.g., monitoring, reporting, recordkeeping) required under the NPDES regulations but based on permit writer’s BPJ specific to these pesticide discharges. In addition, all NPDES permits are required to include “standard conditions” consistent with the regulation requirements in 40 CFR 122.41. NPDES permits issued by NPDES-authorized states are required to follow similar procedures although states may include more stringent requirements consistent with any applicable state laws.
Do the NPDES-authorized states need to include requirements to protect endangered species and critical habitat, as the EPA’s PGP does?
This varies by state. Section 7 of the Endangered Species Act (ESA) of 1973 requires all federal agencies to ensure, in consultation with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the “Services”), that any federal action carried out by any agency is not likely to jeopardize the continued existence of any endangered species or threatened species (together, “listed” species), or result in the adverse modification or destruction of habitat of such species that is designated by the Services as critical (“critical habitat”). See 16 U.S.C. 1536(a)(2), 50 CFR 402. The EPA’s issuance of the Pesticide General Permit (PGP) is a federal action requiring such consultation. Section 7 of the ESA does not apply to NPDES-authorized states for issuance of their National Pollutant Discharge Elimination System (NPDES) permits; although a number of states have adopted procedures to evaluate listed species and their critical habitat consistent with federal procedures.
III. ELIGIBILITY CRITERIA FOR THE EPA’S PESTICIDE GENERAL PERMIT
What is the EPA’s Pesticide General Permit?
The Pesticide General Permit (PGP) is an EPA-issued National Pollutant Discharge Elimination System (NPDES) general permit that became effective beginning October 31, 2011. The EPA’s PGP provides a means by which Operators can seek NPDES permit coverage for discharge to waters of the United States that result from the application of pesticides. Specifically the permit is available in areas where the EPA is the permitting authority. Without the availability of an NPDES permit, such Operators would be required to obtain coverage under a more administratively burdensome NPDES individual permit.
What types of discharges are eligible for the EPA’s PGP?
Generally the EPA’s Pesticide General Permit (PGP) is available for Operators who apply (1) biological pesticides or (2) chemical pesticides that leave a residue, which result in point source discharges to waters of the United States from the following pesticide use patterns:
- Mosquito and other flying insect pest control;
- Weed and algae control;
- Animal pest control; and
- Forest canopy pest control.
The PGP includes additional eligibility criteria although these criteria are mostly for infrequent situations. The EPA has developed a step-by-step, interactive, online tool to help pesticide Operators determine whether they are eligible for the EPA’s PGP, which is available at the pesticides permit decision tool page.
Is the EPA’s PGP available for pesticide applications that result in discharges to impaired waters?
In certain instances, coverage under the EPA’s Pesticide General Permit (PGP) is not available for discharges to impaired waters. Specifically, the following discharges of pesticides are not authorized for coverage under the PGP:
- To waters which are impaired for the active ingredient of the pesticide
- To waters which are impaired for degradates of that active ingredient
- To waters which are impaired for the class of pesticides (e.g., pyrethroids) to which the pesticide to be applied belongs.
Discharges to waters impaired for temperature or some other indicator parameter, or for physical impairments such as “habitat alteration,” are eligible for PGP coverage unless the Operator is otherwise notified by the EPA.
If a discharge is not eligible for coverage under the PGP, Operators have to choose between obtaining coverage under an individual permit for such a discharge or selecting some other means of pest management, e.g., using mechanical means or a different pesticide active ingredient. For further discussion, see the PGP Comment Response Impaired Waters Essay in the Response to Public Comments document for the EPA’s PGP, which can be viewed or downloaded at: www.regulations.gov, under docket number EPA-HQ-OW-2010-0257.
What are “Tier 3 waters” referenced in the EPA’s PGP?
States, territories, and certain tribes (i.e., those tribes with “treatment as state status” for purposes of water quality standards) are required to adopt appropriate designated uses (i.e., goals) for their waters. Based on those goals, these states, territories, and tribes are required to adopt necessary water quality criteria to protect those designated uses for each of their waters. In addition to establishing designated uses and water quality criteria, these states, territories, and tribes must adopt an anti-degradation policy to help protect existing water quality and high quality waters. That anti-degradation policy is to address three categories:
- Tier 1 – for the protection of water quality for existing uses
- Tier 2 – for the protection of high quality waters
- Tier 3 – for the protection of Outstanding National Resource Waters (ONRWs).
Tier 3 waters are identified by the state, territory, or tribe as waters having unique characteristics to be preserved (e.g., waters of exceptional recreational, environmental, or ecological significance). No degradation is allowed in Tier 3 waters except on a short-term or temporary basis, meaning weeks or months, rather than years. Of note, many states/tribes have levels of protection that are similarly protective as Tier 3 waters but may allow more flexibility when making water quality determinations. These waters are often called Tier 2½ waters. Examples of such Tier 2½ designations include "Outstanding State Resource Waters," "Outstanding Natural Resource Waters," and "Exceptional Waters."
Is the EPA’s PGP available for pesticide applications that result in discharges to waters designated as Outstanding National Resource Waters (Tier 3)?
The EPA’s Pesticide General Permit (PGP) provides coverage for discharges from pesticide applications made to Tier 3 waters but only for applications made to those waters to restore or maintain water quality or to protect public health or the environment that either do not degrade water quality or only degrade water quality on a short-term or temporary basis. A list of Tier 3 waters in geographic areas covered under the EPA’s PGP is available on the EPA’s pesticides home page.
Is the EPA’s PGP available for pesticide applications that result in discharges to waters of the United States that are dry (e.g., a dry streambed) at the time when the pesticide applications are actually performed?
Yes. Discharges to waters of the United States, whether wet or dry at the time of application, are required to be covered under a National Pollutant Discharge Elimination System (NPDES) permit and can be covered by the EPA’s Pesticide General Permit (PGP) where the PGP is available. This includes discharges to features such as certain dry washes and ephemeral streams on forest or range lands to control pests that may be found in these occasionally wet areas. As such, these pesticide applications may be performed using pesticides labeled for terrestrial, seasonally-dry, or aquatic uses.
The lateral extent of a stream identified as a water of the United States is generally the width of the stream channel delineated by the ordinary high water mark as defined by the U.S. Army Corps of Engineers (COE) in 33 CFR 329.11. Where no ordinary high-water mark is identified, the width of the stream channel is defined by its bankfull elevation, that being the level where water leaves the channel and flows into the floodplain (Rosgen, 1996) - which occurs approximately every 1 to 2 years (Dunne and Leopold 1978). Bankfull elevation can be readily identified in many streams using recognizable water lines or vegetation boundaries (Rosgen, 1996).
Is coverage under the EPA’s PGP available for pesticide applications made to control pests in areas that are not waters of the United States (e.g., certain ditches or other conveyances) but that result in pesticide discharges to waters of the United States?
Yes. The EPA’s Pesticide General Permit (PGP) is available for pesticide applications that result in discharges to waters of the United States from the application of pesticides: (1) directly to waters of the United States to control pests, and (2) over waters of the United States, including near such waters, where a portion of the pesticides will be unavoidably deposited to those waters in order to target the pest effectively. For two of the use patterns, Weed and Algae Pest Control and Animal Pest Control, the permit specifies that covered activities include applications to control pests “in water and at water’s edge.” The EPA intends for the phrase “at water’s edge” to allow for coverage of activities targeting pests that are not necessarily in the water but are near enough to the water such that a discharge of pesticides to a water of the United States is unavoidable when trying to control the pests. Pesticide activities for the other two use patterns, Mosquito and Other Flying Insect Control and Forest Canopy Pest Control, may also have similar activities “at water’s edge” for which the EPA’s PGP is available. Additionally, it is important to note that a pesticide application to an area that has a direct hydrologic surface connection to a water of the United States at the time of application (e.g., a pesticide is applied to a ditch that is not itself a water of the United States, but contains water at the time of application and that water is flowing into a water of the United States) is also eligible for coverage under the EPA’s PGP.
Is the EPA’s PGP available for pesticide applications that result in discharges to waters of the United States containing endangered species?
The EPA’s Pesticide General Permit (PGP) is available for Operators that can ensure that pesticide discharges are not likely to adversely affect species that are federally-listed as endangered or threatened under the Endangered Species Act (ESA) or habitat that is federally-designated as critical under the ESA, with certain exceptions outlined in the permit. This includes listed species and critical habitat managed by both the US fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). Operators with discharges to waters of the United States containing NMFS Listed Resources of Concern must determine their eligibility for coverage through additional ESA-related criteria outlined in the permit and submit Notice of Intents (NOIs) and annual reports and implement Integrated Pest Management (IPM)-like practices. See Part 1.1.2.4 of the EPA’s PGP for more information. Operators with discharges to waters of the United States containing FWS listed species and critical habitats have no additional permit requirements. The EPA may, through consultation with FWS, determine that additional permit conditions are necessary and will follow the appropriate measures necessary to achieve this.
Does the method of pesticide application affect the determination of whether or not discharges from those applications are eligible for coverage under the EPA’s PGP?
No. The EPA’s Pesticide General Permit (PGP) covers discharges that result from pesticide applications to waters of the United States irrespective of whether the pesticide applications are made by hand sprayers, vehicle-mounted tanks with sprayer nozzles, fixed- or rotary-wing aircrafts, or other types of application methods.
Are pesticide activities to control pests along rights-of-ways or similar linear features (e.g., railroad, roadway, utility line) that result in discharges to waters of the United States eligible for coverage under the EPA’s PGP?
The EPA’s Pesticide General Permit (PGP) is available for discharges from pesticide applications to waters of the United States for purposes of pest control along rights-of-ways or similar linear features for any of the four pesticide use patterns. For example, weed control using herbicides would be covered under the Weed and Algae Pest Control use pattern for those portions of the pest control that result in discharges to waters of the United States. Also, the EPA’s PGP is available whether the pesticides are applied aerially or on the ground. To be clear, pesticide activities performed along rights-of-ways or similar linear features that do not result in discharges to waters of the United States do not require coverage under a National Pollutant Discharge Elimination System (NPDES) permit.
Is pesticide spray drift covered under the EPA’s PGP?
The EPA’s Pesticide General Permit (PGP) does not cover spray drift. In promulgating the 2006 NPDES Pesticides Rule, the EPA expressly noted that the Rule did not cover either spray drift (i.e., the airborne movement of pesticide sprays away from the target application site into waters of the United States) or applications of pesticides to terrestrial agricultural crops where runoff from the crop, either as irrigation return flow or agricultural stormwater, discharges into waters of the United States. The EPA’s PGP is consistent with the 2006 Rule in that it does not cover spray drift. Instead, to address spray drift, the EPA established a multi-stakeholder workgroup under the Pesticides Program Dialogue Committee (PPDC), an advisory committee chartered under the Federal Advisory Committee Act (FACA) to explore policy issues relating to spray drift.
It should also be pointed out that some pesticide applications, such as ultra low volume (ULV) spraying of mosquito adulticides, are applied as a fog with the intent of the pesticide remaining airborne. The EPA does not consider ULV applications to targeted sites to be “spray drift” and, therefore, ULV applications are eligible for coverage under the EPA’s PGP.
Are pesticide discharges that are covered under another NPDES permit eligible for coverage under the EPA’s PGP?
No, discharges already covered under another National Pollutant Discharge Elimination System (NPDES) permit are not eligible for coverage under the EPA’s Pesticide General Permit (PGP). For example, a city may have discharges from pesticide applications already covered under an existing municipal separate storm sewer system (MS4) permit. In that instance, those covered discharges would not be eligible for coverage under the EPA’s PGP. This includes discharges currently covered under a different NPDES permit as well as discharges from activities where the associated NPDES permit has been or is in the process of being denied, terminated, or revoked by the EPA (although this latter provision does not apply to the routine reissuance of permits every five years).
If a pesticide application activity is not eligible for coverage under the EPA’s PGP, does this mean an NPDES permit is not required for discharges from those activities?
Not necessarily. While the EPA’s Pesticide General Permit (PGP) covers many pesticide application discharges required to obtain a National Pollutant Discharge Elimination System (NPDES) permit in the areas where the EPA is the NPDES permitting authority, there may still be some pesticide application discharges requiring NPDES permit coverage that are not eligible under the EPA’s PGP. For example, pesticide application discharges may already be covered under another NPDES permit, in which case, those discharges would not be eligible for coverage under the PGP yet still require coverage under some other NPDES permit. Similarly, certain discharges of pesticides to Tier 3 waters (i.e., Outstanding National Resource Waters) are not eligible for coverage under the PGP but do still require coverage under an NPDES permit (e.g., an NPDES individual permit).
Is the EPA’s PGP available only for Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registered products?
No. “Pesticide” is defined in Appendix A of the EPA’s Pesticide General Permit (PGP) to include a wide range of materials, and includes both FIFRA registered and unregistered products. If a pesticide is being applied for any of the four pesticide use patterns included in the permit, that activity is subject to the requirement for National Pollutant Discharge Elimination System (NPDES) permit coverage and eligible for coverage under the EPA’s PGP. If a pesticide is being applied for some other reason, for example, clove oil use to stun fish for collection purpose, or alum use to control phosphorus levels in the water as a way to inhibit algae growth (as an algaestat, not as an algaecide), that activity is not eligible for coverage under the EPA’s PGP. Pesticide activities not eligible for coverage under the EPA’s PGP may need an NPDES individual permit.
Is the EPA's PGP available for the use of copper sulfate to control algae in a drinking water source that itself is a water of the United States?
Unless that waterbody is impaired for copper or sulfate, the EPA’s Pesticide General Permit (PGP) is available for those applications. In this situation, the EPA’s PGP is available for application of copper sulfate to control algae for taste and odor control under the weed and algae control pesticide use pattern. Operators wanting to apply copper sulfate to waters of the United States impaired for copper or sulfate must obtain coverage under an NPDES individual permit rather than the EPA’s PGP.
Is the EPA’s PGP available for activities in areas for which an existing Endangered Species Act Section 7 consultation has been completed?
Yes. Provided all conditions and/or requirements of that consultation that address pesticide application activities covered under the EPA’s Pesticide General Permit (PGP) are met, those activities are eligible for coverage under the EPA’s PGP. See Part 1.6 of the EPA’s PGP.
Does the EPA’s PGP cover pesticide application activities in areas with threatened and endangered species managed by the U.S. Fish and Wildlife Service (USFWS) even though the EPA has not completed its consultation with the USFWS?
Yes. The EPA’s Pesticide General Permit (PGP) does cover pesticide application activities in areas with threatened and endangered species listed by the USFWS. The EPA was able to issue the permit consistent with section 7(d) of the Endangered Species Act because its issuance does not foreclose either the formulation by the Services, or the implementation by EPA, of any alternatives that might be determined in the consultation to be necessary to comply with section 7(a)(2). The EPA’s PGP also covers pesticide applications in areas containing threatened and endangered species listed by the National Marine Fisheries Services (NMFS) although the permit includes additional terms for discharges to certain areas with NMFS-listed species and critical habitat.
IV. WHO IS RESPONSIBLE FOR OBTAINING PERMIT COVERAGE UNDER THE EPA’s PGP?
What does it mean to be “covered” under the EPA’s PGP?
The EPA uses the term “covered” or “coverage” in the National Pollutant Discharge Elimination System (NPDES) program to identify Operators’ discharges to waters of the United States that meet all the necessary eligibility and application provisions of an existing NPDES permit and as such are authorized to discharge under the terms and conditions of that permit. For example, a pesticide applicator that is “covered under the Pesticide General Permit (PGP)” has met all eligibility requirements of the permit and is authorized to discharge to waters of the United States consistent with the terms and conditions of the permit.
Who is responsible for seeking coverage under the PGP?
The National Pollutant Discharge Elimination System (NPDES) regulations require that any “person” that discharges pollutants to waters of the United States can do so only under the terms and conditions provided in an NPDES permit. The NPDES regulations define “person” as an “individual, association, partnership, corporation, municipality, state or federal agency, or an agent or employee thereof.” This may include entities such as municipalities responsible for pest control, pest control districts, farmers, for-hire pesticide applicators, etc. Further, the regulations clarify that when an activity is owned by one person but operated by another person, it is the Operator’s duty to obtain a permit. Thus, the EPA uses the term “Operator” when describing who is required to obtain NPDES permit coverage. The EPA’s Pesticide General Permit (PGP) defines “Operator” to mean any entity associated with the application of pesticides which results in a discharge to waters of the United States that meets either of the following two criteria:
- any entity who performs the application of a pesticide or who has day-to-day control of the application (i.e., they are authorized to direct workers to carry out those activities); or
- any entity with control over the decision to perform pesticide applications including the ability to modify those decisions.
For the PGP, the EPA calls any Operator identified by (i) above an “Applicator” and any Operator identified by (ii) above a “Decision-maker.” Thus, in some instances, there may be more than one Operator responsible for a discharge and as such, more than one Operator required to have coverage under the EPA’s PGP. As described elsewhere, even when more than one Operator is responsible for a given discharge, the EPA’s PGP never requires more than one Operator to submit a Notice of Intent (NOI) to be covered under the permit. Any other Operators meeting the eligibility requirements of the permit are covered automatically without the need to submit an NOI (or, for that matter, any other application or similar paperwork).
How do Operators obtain coverage under the EPA’s PGP?
Operators that meet the eligibility provisions specified in the permit can be covered under the permit in one of two ways. As detailed in the EPA’s Pesticide General Permit (PGP), certain Operators are automatically covered under the permit and are authorized to discharge pesticides immediately. Some Operators, namely certain Decision-makers as identified in the EPA’s PGP, must submit a Notice of Intent (NOI) to obtain coverage under the permit and are authorized to discharge pesticides at some point in time (generally, 10 to 30 days) after the EPA receives such NOI and posts that complete and accurate NOI on the Agency website.
Do all Operators have the same requirements under the EPA’s PGP?
No. The EPA’s Pesticide General Permit (PGP) delineates different responsibilities for different types of Operators as well as different types of pesticide application activities and locations of those activities. Decision-makers and Applicators are both Operators and thus in some instances, more than one Operator may be responsible for compliance with the permit for any given pesticide application activity. The permit assigns different responsibilities to Decision-makers and Applicators; although any Operator covered under the permit is still responsible, jointly and severally, for any violation associated with its discharge.
What is the difference between an Applicator and a Decision-maker?
For purposes of the EPA’s Pesticide General Permit (PGP), an Applicator is an entity who performs the application of a pesticide, or who has day-to-day control of the application (i.e., they are authorized to direct workers to carry out those activities). A Decision-maker is an entity with control over the decision to perform pesticide applications, including the ability to modify those decisions. A Decision-maker, for example, is the entity that hires a pesticide application company to apply pesticides or instructs its own staff to apply pesticides. Decision-makers and Applicators are both Operators and thus in some instances, more than one Operator may be responsible for compliance with the permit for any given pesticide application activity.
If an agency leases land to another entity, and applicators are hired to perform pest control activities on that land, who is the Decision-maker?
An entity is unlikely to be a Decision-maker if it owns the land but the pesticide application activities are being performed without its input or control (e.g., a private party is spraying for weeds on public lands that the private party leases from the federal government). In this scenario, the lessee is the Decision-maker.
If an agency provides funds for pest control activities on private lands, is the agency a Decision-maker?
An agency is not considered a Decision-maker if it does not have control over the decision to perform pest control activities. Merely providing funds for such an activity is not considered to be a Decision-making activity. The entity who authorizes the pest control activities is the Decision-maker.
V. HOW TO OBTAIN PERMIT COVERAGE UNDER THE EPA’s PGP (INCLUDING SUBMISSION OF NOTICES OF INTENT)
What is the procedure for obtaining coverage under the EPA’s PGP?
Certain dischargers of pesticides must submit a Notice of Intent (NOI) to be authorized to discharge under the EPA’s Pesticide General Permit (PGP). The NOI form is a short document requesting basic information about the nature of the activities under consideration. Many other dischargers are covered under the EPA’s PGP without submission of an NOI, or for that matter, any type of documentation (e.g., a permit application).
What does submittal of an NOI mean?
A Notice of Intent (NOI) for a general permit is similar to a permit application, in that it is notification to the regulatory authority of a planned discharge for which coverage under a specific National Pollutant Discharge Elimination System (NPDES) general permit is needed and contains information about the discharge and the Operator of that discharge. The NOI serves as the Operator’s notice to the permitting authority that the Operator intends for the discharge to be authorized under the terms and conditions of that general permit. By signing and submitting the NOI, the Operator is certifying that the discharge meets all of the eligibility conditions specified in the general permit (e.g., that a pesticide discharge management plan has been developed if necessary) and that the Operator intends to follow the terms and conditions of the permit. A fraudulent or erroneous NOI invalidates permit coverage. An incomplete NOI delays permit coverage until such time as the NOI has been completed.
Who must submit an NOI to obtain permit coverage under the EPA’s PGP?
Certain Decision-makers, as defined in Appendix A of the EPA’s Pesticide General Permit (PGP), must submit Notice of Intents (NOIs). See Table 1-1 of the PGP for identification of Decision-makers required to submit NOIs.
Decision-makers with discharges to waters of the United States that contain National Marine Fisheries Service (NMFS) Listed Resources of Concern are required to submit NOIs. How do Decision-makers determine whether or not waters of the United States contain NMFS Listed Resources of Concern?
The EPA’s pesticides home page provides links to a number of websites with detailed information to help Operators comply with the requirements of the EPA’s Pesticide General Permit (PGP). One of the links is to “NMFS Listed Resources of Concern Applicable to the EPA’s Pesticide General Permit.” That webpage contains maps, tables, descriptions, etc. of the species and locations of concern to NMFS for the EPA’s PGP.
Are for-hire pesticide applicators required to submit NOIs?
Where an applicator is hired or authorized by an entity to perform pest control activities, the applicator is not considered a “Decision-maker” and therefore is not required to submit an Notice of Intent (NOI).
What are the requirements under the EPA’s PGP for an Operator who is eligible for the EPA’s PGP, but is not required to submit an NOI?
Under the PGP, an Operator who is not required to submit an NOI is subject to fewer requirements than an Operator who is required to submit an NOI. Each part or subpart of the permit clarifies whether requirements in that part or subpart apply only to Operators required to submit an NOI or some other subset of Operators (for example, “all Operators,” “all Applicators,” “all For-Hire Applicators,” etc). Operators covered under the EPA’s PGP that are not required to submit an NOI must still comply with the provisions of the permit applicable to them where those requirements are not identified as only applicable to Operators required to submit an NOI.
Are separate NOIs required from Decision-makers for each pesticide application and/or for each separate treatment area?
No. The EPA’s Pesticide General Permit (PGP) provides flexibility for Decision-makers on how information can be provided in the Notice of Intent (NOI); although, the EPA expects that in most instances the Decision-maker will submit one NOI to cover all its pesticide applications in all treatment areas. The NOI is structured to allow for this flexibility. The only exception is that an NOI cannot include information for more than one state. So, if a Decision-maker is required to submit an NOI for permit coverage and that Decision-maker’s activities are performed in more than one state, an NOI must be submitted for each state where those activities are to be performed. “Pest management areas” are those areas where the Decision-maker may be managing pests, and such management results in a discharge to waters of the United States. For example, an NOI may identify multiple pest management areas at the different state parks throughout an entire state, a mosquito district, or a single lake. Decision-makers do have flexibility to decide which pest management areas are included on a single NOI. For example, a Decision-maker may, if it so chooses, submit separate NOIs for each of its treatment areas. However, the EPA expects most Decision-makers will prefer having all their activities identified on one NOI, an option that is also available.
If a Decision-maker requires permit coverage in multiple states covered by the EPA’s PGP, can that Decision-maker file one NOI for all the states?
No. The EPA established the Notice of Intent (NOI) requirements to address states on an individual basis, corresponding with the applicable National Pollutant Discharge Elimination System (NPDES) permit number identified in Appendix C of the EPA’s Pesticide General Permit (PGP). As such, an NOI cannot include information for more than one state. Decision-makers requiring permit coverage in more than one state covered by the EPA’s PGP (e.g., Massachusetts and New Hampshire) must submit an NOI for each state for which permit coverage is required with that NOI containing information specific to pesticide application activities in that state.
Is an NOI required if an Operator applies only larvicides (not adulticides) for mosquito control?
It depends. Any mosquito control district (or similar pest control district) or agency (federal or state) for which pest management for land resource stewardship is an integral part of the organization’s operations is required to submit a Notice of Intent (NOI) for all of its pesticide applications (larvicides and adulticides) that result in discharges to waters of the United States. See Table 1-1 of the EPA’s Pesticide General Permit (PGP). Conversely, except for discharges to Tier 3 waters (i.e., Outstanding National Resource Water) or National Marine Fisheries Service (NMFS) Listed Resources of Concern, which always require an NOI, any local government or other type of Operator is not required to submit an NOI if it:
- uses only larvicides, or
- uses both larvicides and adulticides but applies adulticides to less than 6,400 acres a year.
Regardless of whether an NOI is required, discharges from both adulticides and larvicides require coverage under the EPA’s PGP and discharges from these activities must comply with the appropriate provisions of the EPA’s PGP.
Are all federal facilities (in areas where the EPA’s PGP applies) required to submit an NOI for their pesticide application activities?
The EPA’s Pesticide General Permit (PGP) specifies that “any agency for which pest management for land resource stewardship is an integral part of the organization’s operations” is required to submit a Notice of Intent (NOI) for any discharges eligible for coverage under the EPA’s PGP. The EPA uses the term “agency” in the PGP to refer to federal and state agencies. The EPA believes that most pest control activities performed by federal and state agencies that result in discharges to waters of the United States will meet the requirement to submit an NOI. The EPA recognizes, however, that many such public entities may perform ad-hoc pest control on a small-scale that is not related to land resource stewardship, but rather incidental, for example, to its occupancy of a building. As an example, the U.S. Social Security Administration may maintain a building or group of buildings where weeds have overtaken a parking lot that is adjacent to a lake, and the local office determines that it should control those weeds with an herbicide. The EPA would not consider this type of weed control related to land resource stewardship but rather as incidental to operation of the facility. By contrast, a federal or state transportation department controlling weeds in flowing waters adjacent to roads would be considered to be performing a function associated with its land resource management purposes and as such would be required to submit an NOI. Similarly, the application of adulticides on a military base by the Department of Defense would also be considered to be an activity associated with a land resource management responsibility to protect public health although incidental weed management around buildings on the base generally would not be considered a stewardship responsibility. To be clear, in all instances described above, discharges would require permit coverage; however, the requirement to submit an NOI are based only on those land stewardship responsibilities.
How do Operators calculate the area treated?
The “Treatment Area” as defined in Appendix A of the EPA’s Pesticide General Permit (PGP) is the entire area, whether over land or water, where a pesticide application is intended to provide pesticidal benefits within the pest management area. In some instances, the treatment area will be larger than the area where pesticides are actually applied. For example, the treatment area for a stationary drip treatment into a canal includes the entire width and length of the canal over which the pesticide is intended to control weeds. Similarly, the treatment area for a lake or marine area is the water surface area where the application is intended to provide pesticidal benefits.
The procedures for calculating the treatment area are identified in Appendix A of the EPA’s PGP in the definition of the term “annual treatment area threshold.”
For calculating annual treatment areas for Weed and Algae Control and Animal Pest Control, calculations should include either the linear extent of or the surface area of waters for applications made to waters of the United States or at water’s edge adjacent to waters of the United States. For calculating the annual treatment area, count each treatment area only once, regardless of the number of pesticide application activities performed on that area in a given year. Also, for any linear feature (e.g., a canal or ditch), use the length of the linear feature whether treating in or adjacent to the feature, regardless of the number of applications made to that feature during the calendar year. For example, whether treating the bank on one side of a ten-mile long ditch, banks on both sides of the ditch, and/or water in that ditch, the total treatment area is ten miles. Additionally, if the same 10 mile area is treated more than once in a calendar year, the total area treated is still 10 miles. Also, the treatment area for these two pesticide use patterns is not additive over the calendar year. Each pesticide use pattern is to be evaluated separately and compared to the applicable threshold.
For calculating annual treatment areas for Mosquitoes and Other Flying Insect Pest Control and Forest Canopy Pest Control, calculations should include all applications made by the Decision-maker regardless of whether those individual applications may result in a discharge to waters of the United States. As long as some portion of the treatment results in a discharge requiring permit coverage, the calculation of treatment area for these two use patterns are to include all activities made by the Decision-maker during the calendar year. Also, unlike the previous two use patterns, the treatment area is additive over the calendar year (i.e., multiple treatments to the same area are to be combined to calculate a cumulative treatment area). Also, it is important to note that for purposes of calculating annual treatment areas for mosquito control, only adulticide applications are to be counted. While larvaciding that results in discharges to waters of the United States do require permit coverage, those activities are not to be included in the calculation of area treatment (for purpose of determining if an Notice of Intent is required). Similar to the previous two pesticide use patterns, do not add treatment areas for the two different pesticide use patterns to each other.
If a Decision-maker is required to submit an NOI solely due to the fact that their pesticide applications will exceed an annual treatment area threshold, when should the NOI be filed?
The Decision-maker must file the Notice of Intent (NOI) at least ten days before exceeding an annual treatment area threshold consistent with the deadlines in Table 1-2 of the EPA’s Pesticide General Permit.
If only a portion of a Decision-maker’s pesticide applications result in discharges to waters of the United States, can the rest of the treatment area be excluded from the annual treatment area calculation?
The EPA’s Pesticide General Permit (PGP) establishes annual treatment area thresholds for each of the four pesticide use patterns (i.e., mosquito and other flying insect pests, weeds and algae, animal pests, and forest canopy pests). For two of the four pesticide use patterns, weeds and algae and animal pests, the annual treatment area is to be calculated based only on those applications that result in discharges to waters of the United States covered under the EPA’s PGP (i.e., treatment areas can be excluded that do not result in discharges to waters of the United States). However, for the other two pesticide use patterns, mosquito and other flying insect pests and forest canopy pests, the area treated is the entire area to be treated rather than only those areas that result in discharges to waters of the United States.
Is permit coverage under the EPA’s PGP automatic upon submission of a Notice of Intent?
No. See Table 1-2 of the EPA’s Pesticide General Permit (PG), NOI Submittal Deadlines and Discharge Authorization Dated for Discharges from the Application of Pesticides. Activities may be covered as soon as ten days after the EPA receives a complete and accurate Notice of Intent (NOI) but may take 30 days or longer such as in areas with National Marine Fisheries Service (NMFS) Listed Resources of Concern where someone, such as NMFS, identifies concerns with information submitted on the NOI form.
Can a senior executive officer at a federal facility be the signatory for an NOI required by the EPA’s PGP?
It depends. Appendix B.11.A.3 of the EPA’s Pesticide General Permit (PGP) states that the Notice of Intent (NOI) for a municipality, state, federal, or other public agency is to be signed by either a principal executive officer or ranking elected official. A principal executive officer of a federal agency includes (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit or the agency (e.g., Regional Administrator of EPA).
A federal facility can be considered a principal geographic unit if the senior executive officer has responsibility for the overall operation of the federal facility. Otherwise a senior executive officer of the regional office or the agency that has responsibility for the overall operation of the federal facility is the signatory for the NOI.
Can a principal executive officer of a federal agency delegate NOI approval and signature responsibility?
No. The National Pollutant Discharge Elimination System (NPDES) regulations do not allow for delegation of responsibility for signing and certifying a Notice of Intent (NOI). Other types of NPDES documents, such as annual reports and Pesticide Discharge Management Plans, may be delegated and signed by a duly authorized representative of the principal executive officer consistent with delegation procedures described in Section B.11.B of Appendix B of the EPA’s Pesticide General Permit.
Do Decision-makers need to submit an updated NOI when the signatory for their NOI (i.e., principal executive officer, ranking elected official, responsible corporate officer) moves to another position?
No. There is no need to submit a new Notice of Intent (NOI) or update an existing NOI because the signatory of the NOI has changed. Any subsequent documents that need to be signed can be signed by the new signatory. If an updated NOI is required, the new signatory can contact the EPA NOI processing center to gain access to the NOI submitted by a previous signatory.
Do Decision-makers need to submit an updated Notice of Intent (NOI) if a different chemical is selected for the treatment area within the pest management area defined in the original NOI?
No, unless the discharge is to waters of the United States containing National Marine Fisheries Service (NMFS) Listed Resources of Concern. See Part 1.2.3, Table 1-3 of the EPA’s Pesticide General Permit.
Do Decision-makers need to submit an updated Notice of Intent when they change their Applicator?
No. Any updated Applicator information is to be provided to the EPA in the annual report not in an updated Notice of Intent.
VI. REQUIREMENTS FOR OPERATORS WHO ARE COVERED UNDER THE PGP
What are the requirements under the EPA’s PGP?
The EPA’s Pesticide General Permit (PGP) delineates different responsibilities for different types of Operators as well as different types of pesticide application activities and locations of those activities. For example, the permit assigns different responsibilities to Decision-makers and Applicators; although any Operator covered under the permit is still responsible, jointly and severally, for any violation associated with its discharge. Similarly, the permit includes different requirements for discharges from the control of mosquitoes or from the control of pests in the forest canopy. EPA has developed a step-by-step, interactive, online tool to help Operators summarized their requirements under the EPA’s PGP, which is available at: http://www.epa.gov/npdes/pesticides/pgptool.
How do Decision-makers determine if they are a large entity or small entity for the purpose of the EPA’s PGP?
Under the EPA’s Pesticide General Permit (PGP), “small entity” is defined as any (1) private enterprise that does not exceed the Small Business Administration size standard as identified at 13 CFR 121.201 (http://www.sba.gov/sites/default/files/files/Size_Standards_Table(1).pdf (PDF) (46 pp, 1MB) ), or (2) local government that serves a population of 10,000 or less. All other Operators are considered large entities for purposes of the EPA’s PGP.
Are all federal agencies considered large entities for the purpose of the EPA’s Pesticide General Permit?
Yes.
How do quasi-governmental entities, such as irrigation districts, determine if they are large or small entities for purposes of the EPA’s Pesticide General Permit?
Small Business Administration statutory language implies that special districts fall into the government category. See SEC. 601. DEFINITIONS [CITE: 5 USC 601]. Thus, quasi-governmental entities should use the population of the area served, not the number of customer accounts, to determine if they are large or small entity.
Does compliance with Whole Effluent Toxicity testing to demonstrate consistency with the "free from toxics" narrative standard apply under the EPA’s PGP?"
The EPA’s Pesticide General Permit (PGP) does not require Operators to perform water quality testing (including no requirement to monitor whole effluent toxicity). As written, the EPA assumes that pesticide applications performed consistent with the PGP will generally be adequate to protect water quality.
How do aerial applicators comply with the "visual monitoring" requirement?
The monitoring requirements in the EPA’s Pesticide General Permit (PGP) provide flexibility for Applicators to respond to the wide range of environments, situations, and targets to which pesticides may be applied. Visual monitoring is required only when safety and feasibility allow visual assessment of the treatment area. See Part 4.1 of the EPA’s PGP. Visual monitoring during post-application surveillance is required of all Operators, but only if the Operator (i.e. Applicator, the Decision-maker or both) performs post-application surveillance in the normal course of business. The PGP does not require aerial applicators to perform post-application surveillance unless such surveillance is part of the Operator’s normal course of business.
Are Decision-makers, who are required to submit an NOI solely because their application will result in discharges to waters of the United States containing NMFS Listed Resources of Concern, required to develop a PDMP?
No. Any Decision-maker who is or will be required to submit a Notice of Intent (NOI) must prepare a Pesticide Discharge Management Plan (PDMP) with two exceptions:
- The application made in response to a Declared Pest Emergency Situation, or
- The Decision-maker is required to submit an NOI solely because their application results in a point source discharge to waters of the United States containing U.S. National Marine Fisheries Service (NMFS) Listed Resources of Concern.
When are Decision-makers who are required to develop a PDMP required to develop that plan?
Decision-makers required to develop a Pesticide Discharge Management Plan (PDMP) must do so by the time the Notice of Intent (NOI) is filed.
When do Decision-makers need to update their PDMP?
Decision-makers must modify the Pesticide Discharge Management Plan (PDMP) whenever necessary to address any of the triggering conditions for corrective action in Part 6.1 of the EPA’s Pesticide General Permit, or when a change in pest control activities significantly changes the type or quantity of pollutants discharged. Changes to the PDMP must be made before the next pesticide application that results in a discharge, if practicable, or if not practicable, no later than 90 days after any change in pesticide application activities. The revised PDMP must be signed and dated in accordance with Appendix B, Subsection B.11 of the EPA’s Pesticide General Permit.
Does the EPA’s PGP require submission of records indicating that visual monitoring for adverse effects has taken place?
EPA’s Pesticide General Permit (PGP) does not require submission of visual monitoring records. However, all Decision-makers who are required to submit an NOI and all Operators who are For-Hire Applicators are required to retain records on whether or not visual monitoring was conducted during pesticide application and/or post-application. If visual monitoring was not conducted they must note why not. In addition, they must also note whether monitoring identified any possible or observable adverse incidents caused by application of pesticides.
For the annual report, are Decision-makers required to identify which Applicator applied which products?
Not necessarily. The EPA’s Pesticide General Permit (PGP) requires Decision-makers who submitted Notices of Intent to submit annual reports that identify the total amount of each pesticide product applied to each treatment area and a list of Applicators who performed the activities in each treatment area. The PGP does not require the Decision-maker to link each specific application with the specific Applicator who performed that activity.
VII. DECLARED PEST EMERGENCY
If there is a pest-related public health emergency (e.g., West Nile Virus from mosquitoes), are Operators waived from obtaining an NPDES permit for pesticide application activities that result in discharges to waters of the United States?
No. The Clean Water Act and the National Pollutant Discharge Elimination System (NPDES) regulations do not provide a waiver from NPDES permits for emergency situations, even those related to public health. Although permit coverage is required, the EPA’s Pesticide General Permit allows Operators to be covered for declared pest emergency without delay by:
- delaying the submission of the Notice of Intent (NOI) for those Decision-makers otherwise required to submit an NOI (see Table 1-2 and Table 1-3 of the Pesticide General Permit), and
- not requiring development of a Pesticide Discharge Management Plan (PDMP) for such a pesticide application.
Are pesticide activities that are conducted as part of a public declaration of a pest emergency but begin ten days or more after the identification of the need for pest control considered “Declared Pest Emergency Situation” under the EPA’s PGP?
No. The EPA’s Pesticide General Permit (PGP) defines “Declared Pest Emergency Situation” as an event defined by a public declaration by a federal agency, state, or local government of a pest problem determined to require control through application of a pesticide beginning less than ten days after identification of the need for pest control. See Appendix A of the EPA’s PGP. The goal of the “Declared Pest Emergency Situation” provision is to allow Decision-makers to respond to pest emergencies without delay.
Is a Declared Pest Emergency Situation, as defined in the EPA’s PGP, limited to only pesticide activities conducted within ten days of that declaration?
No, although for an event to be considered a Declared Pest Emergency Situation under the EPA’s Pesticide General Permit (PGP), the first pesticide application must be conducted less than ten days after the public declaration. Any subsequent pesticide activities that are necessary and described in the declaration are also considered to be part of the emergency.
When are Decision-makers required to submit an NOI for pesticide applications made in response to a Declared Pest Emergency Situation?
Decision-makers are required to submit a Notice of Intent (NOI) within 30 days of commencing a pesticide application that results in a discharge to waters of the United States unless those waters contain U.S. National Marine Fisheries Service (NMFS) Listed Resource of Concerns, in which case the NOI must be submit within 15 days of commencing discharge.
EPA expects that in many instances, the Decision-maker responding to a Declared Pest Emergency Situation will already have an active NOI for the routine pest control activities in the same pest management area. In those instances, the Decision-maker is not required to submit a new NOI for the emergency provided the contents of the active NOI includes activities included in the emergency declaration.
After a declared pest emergency, is the Decision-maker required to submit another NOI for routine pesticide applications in the same area?
No. Another Notice of Intent (NOI) is not required but the Decision-maker is required to update the NOI if the criteria in Part 1.2.3, Table 1-3 of the EPA’s Pesticide General Permit are met.
Are Decision-makers required to develop a PDMP for pesticide activities associated with a Declared Pest Emergency Situation?
No. However, if there will be pesticide activities in the same area after the emergency event, a Pesticide Discharge Management Plan (PDMP) must be developed for those pesticide activities.
Are Decision-makers required to submit an annual report for activities associated with a Declared Pest Emergency Situation?
Yes. For activities covered under the EPA’s Pesticide General Permit, an annual report is due by February 15th of the following calendar year.
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