Draft National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit for Point Source Discharges From the Application of Pesticides, 31775-31785 [2010-13468]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 107 (Friday, June 4, 2010)]
[Notices]
[Pages 31775-31785]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13468]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9159-2]


Draft National Pollutant Discharge Elimination System (NPDES) 
Pesticide General Permit for Point Source Discharges From the 
Application of Pesticides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of draft permit and notice of public meetings.

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SUMMARY: All ten EPA Regions today are proposing a draft NPDES general 
permit for point source discharges from the application of certain 
pesticides to waters of the United States. Once finalized, this permit 
will be available to operators in those areas where EPA is the NPDES 
permitting authority. This action is in response to the Sixth Circuit 
Court's ruling that vacated an EPA regulation that excluded discharges 
from the application of pesticides to or over, including near waters of 
the United States from the need to obtain an NPDES permit if the 
application was done in accordance with other laws. EPA requested and 
was granted a two-year stay of the Court's mandate to provide time to 
draft and implement the permit noticed today. The stay of the mandate 
expires on April 9, 2011; where after, NPDES permits will be required 
for all point source discharges to waters of the United States of 
biological pesticides, and chemical pesticides that leave a residue.
    This Federal Register notice briefly summarizes the requirements in 
this draft general permit for pesticides applications to waters of the 
U.S. EPA is soliciting public comment on all aspects of the draft NPDES 
permit. This Federal Register notices also includes a list of specific 
issues about which the Agency is particularly asking for comment. 
Supporting documentation to the permit is contained in an accompanying 
fact sheet. The public is encouraged to read this fact sheet to better 
understand the permit requirements. The fact sheet and permit can be 
found at https://www.epa.gov/npdes/pesticides.

DATES: Comments on the draft general permit must be received on or 
before July 19, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0257, by one of the following methods:
    1. https://www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. E-mail: ow-docket@epa.gov.
    3. Mail to: Water Docket, U.S. Environmental Protection Agency, 
Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention: Docket ID No. EPA-HQ-OW-2010-0257.
    4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 
Constitution Avenue, NW., Washington, DC 20004, Attention: Docket ID 
No. EPA-HQ-OW-2010-0257. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0257. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA

[[Page 31776]]

cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional information about EPA's public docket visit the EPA Docket 
Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at a docket facility. The Office 
of Water (OW) Docket Center is open from 8:30 until 4:30 p.m., Monday 
through Friday, excluding legal holidays. The OW Docket Center 
telephone number is (202) 566-2426, and the Docket address is OW 
Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, 
DC 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744.
    Public meetings and public hearing: EPA will hold three (3) public 
meetings in: Albuquerque, New Mexico on June 14, 2010; Boise, Idaho on 
June 16, 2010; Boston, Massachusetts on June 21, 2010; and a public 
hearing in Washington, DC on June 23, 2010. The focus of each meeting/
hearing is to present the draft general permit and the basis for the 
draft permit requirements, and to answer questions concerning the draft 
permit. At these meetings, any person may provide written or oral 
statements and data pertaining to the draft permit. The date, time and 
location of the public meetings and public hearing are as follows:
     Albuquerque, New Mexico: Monday, June 14, 2010, at the CNM 
Workforce Training Center, Room 101, 5600 Eagle Rock Avenue, NE, 
Albuquerque, New Mexico, from 12 p.m.-3 p.m.
     Boise, Idaho: Wednesday, June 16, 2010, at the Bureau of 
Reclamation, Rooms 206 & 219, 1150 North Curtis Road, Boise, Idaho from 
9 a.m. to 12 p.m.
     Boston, Massachusetts: Monday, June 21, 2010, at EPA 
Region 1, 5 Post Office Square--Suite 100, Conference Room 1529, 
Boston, MA 02109-3912, from 1 p.m. to 4 p.m.
     Washington, DC: Wednesday, June 23, 2010, at the EPA East 
Building, Room 1153, 1301 Constitution Avenue, NW., Washington, DC 
20004, from 10 a.m. to 1 p.m.

If you would like to present a statement at the public hearing in 
Washington, DC, please contact Virginia Garelick at 202-564-2316 to 
register your intent to provide a public statement. Speakers will be 
given up to three minutes (or as time allows) to provide their comments 
on a first come first served basis. Any additional comments will need 
to be provided in writing. EPA will consider all comments received and 
will include copies of such in the Administrative Record.
    EPA encourages interested and potentially affected stakeholders to 
attend one of the scheduled public meetings and provide oral or written 
comments. Please note that the public meetings may close early if all 
business is finished. Oral or written comments received at the public 
meetings will be entered into the Docket for this permit. If you are 
unable to attend, you may submit comments to the EPA Water Docket at 
the address identified in the ADDRESSES section listed above.
    More information on these meetings will be available on the 
Internet at https://www.epa.gov/npdes/pesticides, including any 
additional dates and locations if scheduled. Due to limited seating, 
those wishing to attend EPA's public meetings are asked to please send 
an e-mail message containing their name, telephone number and 
organization to Virginia Garelick at garelick.virginia@epa.gov. An e-
mail message is not required, however. Anyone wishing to may attend 
provided space is available. If you need a sign language interpreter at 
any of these meetings, you should notify Ms. Garelick of such at least 
ten business days prior to the meetings so that appropriate 
arrangements can be made. For further information, including 
registration information, please refer to the following Web site: 
https://www.epa.gov/npdes/pesticides.
    Webcast: EPA has scheduled a Webcast to provide information on this 
draft permit and to answer questions for interested parties that are 
unable to attend the public meetings or hearing. The webcast will be 
broadcast on June 17, 2010, from 1 p.m. to 3 p.m. Eastern Standard Time 
(EST). For information on how to register and attend the webcast, see 
EPA's Web site at https://www.epa.gov/npdes/training.

FOR FURTHER INFORMATION CONTACT: For further information on this draft 
NPDES general permit, contact the appropriate EPA Regional Office 
listed in Section I.F, or contact Jack Faulk, EPA Headquarters, Office 
of Water, Office of Wastewater Management at tel.: 202-564-0768 or e-
mail: faulk.jack@epa.gov.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of this document and other related 
information?
    C. What should I consider as I prepare my comments for EPA?
    D. Finalizing This Permit
    E. Who are the EPA regional contacts for this draft permit?
II. Statutory and Regulatory History
    A. Clean Water Act
    B. NPDES Permits
    C. History of Pesticide Application Regulations
    D. Court Decisions Leading to the CWA Regulation Concerning 
Pesticide Applications
    E. 2006 Agency Rulemaking Excluding Discharges From Pesticide 
Applications From NPDES Permitting
    F. Legal Challenges to the 2006 NPDES Pesticides Rule and 
Resulting Court Decision
III. Scope and Applicability of This NPDES Pesticides General Permit
    A. Geographic Coverage
    B. Categories of Facilities Covered
    C. Summary of Permit Terms and Requirements
    D. Key Permit Provisions for Which EPA is Soliciting Comment
    E. Permit Appeal Procedures
IV. Economic Impacts of the Pesticides General Permit
V. Executive Order 12866

I. General Information

A. Does this action apply to me?

    You may be affected by this action if your application of 
pesticides, under the use patterns in Section III.B., results in a 
discharge to waters of the United States in one of the geographic areas 
identified in Section III.A. Potentially affected entities, as 
categorized in the North American Industry Classification System 
(NAICS), may include, but are not limited to:

[[Page 31777]]



         Table 1--Entities Potentially Regulated by This Permit
------------------------------------------------------------------------
                                                         Examples of
          Category                    NAICS         potentially affected
                                                          entities
------------------------------------------------------------------------
Agriculture parties--General  111 Crop Production.  Producers of crops
 agricultural interests,                             mainly for food and
 farmers/producers,                                  fiber including
 forestry, and irrigation.                           farms, orchards,
                                                     groves,
                                                     greenhouses, and
                                                     nurseries that have
                                                     irrigation ditches
                                                     requiring pest
                                                     control.
                              113110 Timber Tract   The operation of
                               Operations.           timber tracts for
                                                     the purpose of
                                                     selling standing
                                                     timber.
                              113210 Forest         Growing trees for
                               Nurseries Gathering   reforestation and/
                               of Forest Products.   or gathering forest
                                                     products, such as
                                                     gums, barks, balsam
                                                     needles, rhizomes,
                                                     fibers, Spanish
                                                     moss, ginseng, and
                                                     truffles.
                              221310 Water Supply   Operating irrigation
                               for Irrigation.       systems.
Public health parties         923120                Government
 (includes mosquito or other   Administration of     establishments
 vector control districts      Public Health         primarily engaged
 and commercial applicators    Programs.             in the planning,
 that service these).                                administration, and
                                                     coordination of
                                                     public health
                                                     programs and
                                                     services, including
                                                     environmental
                                                     health activities.
Resource management parties   924110                Government
 (includes State departments   Administration of     establishments
 of fish and wildlife, State   Air and Water         primarily engaged
 departments of pesticide      Resource and Solid    in the
 regulation, State             Waste Management      administration,
 environmental agencies, and   Programs.             regulation, and
 universities).                                      enforcement of air
                                                     and water resource
                                                     programs; the
                                                     administration and
                                                     regulation of water
                                                     and air pollution
                                                     control and
                                                     prevention
                                                     programs; the
                                                     administration and
                                                     regulation of flood
                                                     control programs;
                                                     the administration
                                                     and regulation of
                                                     drainage
                                                     development and
                                                     water resource
                                                     consumption
                                                     programs; and
                                                     coordination of
                                                     these activities at
                                                     intergovernmental
                                                     levels.
Public health parties         923120                Government
 (includes mosquito or other   Administration of     establishments
 vector control districts      Public Health         primarily engaged
 and commercial applicators    Programs.             in the planning,
 that service these).                                administration, and
                                                     coordination of
                                                     public health
                                                     programs and
                                                     services, including
                                                     environmental
                                                     health activities.
                              924120                Government
                               Administration of     establishments
                               Conservation          primarily engaged
                               Programs.             in the
                                                     administration,
                                                     regulation,
                                                     supervision and
                                                     control of land
                                                     use, including
                                                     recreational areas;
                                                     conservation and
                                                     preservation of
                                                     natural resources;
                                                     erosion control;
                                                     geological survey
                                                     program
                                                     administration;
                                                     weather forecasting
                                                     program
                                                     administration; and
                                                     the administration
                                                     and protection of
                                                     publicly and
                                                     privately owned
                                                     forest lands.
                                                     Government
                                                     establishments
                                                     responsible for
                                                     planning,
                                                     management,
                                                     regulation and
                                                     conservation of
                                                     game, fish, and
                                                     wildlife
                                                     populations,
                                                     including wildlife
                                                     management areas
                                                     and field stations;
                                                     and other
                                                     administrative
                                                     matters relating to
                                                     the protection of
                                                     fish, game, and
                                                     wildlife are
                                                     included in this
                                                     industry.
Utility parties (includes     221 Utilities.......  Provide electric
 utilities).                                         power, natural gas,
                                                     steam supply, water
                                                     supply, and sewage
                                                     removal through a
                                                     permanent
                                                     infrastructure of
                                                     lines, mains, and
                                                     pipes.
------------------------------------------------------------------------

B. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2010-0257. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Although 
all documents in the docket are listed in an index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. EPA policy is that copyrighted material will 
not be placed in EPA's electronic public docket but will be available 
only in printed, paper form in the official public docket. Publicly 
available docket materials are available in hard copy at the EPA Docket 
Center Public Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is 202-566-1744, and the telephone number for the 
Water Docket is 202-566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the United States government on-line source for 
Federal regulations at https://www.regulations.gov.
    Electronic versions of this draft permit and fact sheet are 
available on EPA's NPDES Web site at www.epa.gov/npdes/pesticides.
    An electronic version of the public docket is available through 
EPA's

[[Page 31778]]

electronic public docket and comment system, EPA Dockets. You may use 
EPA Dockets at https://www.regulations.gov to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. For additional information about EPA's public docket, 
visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the Docket Facility identified in Section 
I.A.1.

C. What should I consider as I prepare my comments for EPA?

1. Submitting CBI
    Do not submit this information to EPA through regulations.gov or e-
mail. Clearly mark all of the information that you claim to be CBI. For 
CBI information on computer discs mailed to EPA, mark the surface of 
the disc as CBI. Also identify electronically the specific information 
contained in the disc that you claim is CBI. In addition to one 
complete version of the specific information claimed as CBI, you must 
submit a copy that does not contain the information claimed as CBI for 
inclusion in the public document. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments in paper form that are mailed or delivered to 
the Docket will be scanned and placed in EPA's electronic public 
docket. Where practical, physical objects will be photographed, and the 
photograph will be placed in EPA's electronic public docket along with 
a brief description written by the docket staff.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify this permit by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a section or 
part of this permit.
     Explain why you agree or disagree, suggest alternatives, 
and suggest substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.

D. Finalizing This Permit

    After the close of the public comment period on this draft, EPA 
will issue a final permit. That final permit will be issued after all 
public comments received during the public comment period have been 
considered and appropriate changes made to this permit. EPA's response 
to comments received will be included in the docket as part of the 
final permit decision.

E. Who are the EPA regional contacts for this draft permit?

    For EPA Region 1, contact George Papadopoulos at USEPA Region 1, 5 
Post Office Square--Suite 100, Boston, MA 02109-3912; or at tel.: (617) 
918-1579; or e-mail at papadopoulos.george@epa.gov.
    For EPA Region 2, contact Maureen Krudner at USEPA Region 2, 290 
Broadway, New York, NY 10007-1866; or tel.: (212) 637-3874; or e-mail 
at krudner.maureen@epa.gov.
    For EPA Region 3, contact Peter Weber at USEPA Region 3, 1650 Arch 
Street, Mail Code: 3WP41, Philadelphia, PA 19103-2029; or at tel.: 
(215) 814-5749; or e-mail at weber.peter@epa.gov.
    For EPA Region 4, contact Sam Sampath at USEPA Region 4, 61 Forsyth 
Street, SW., Atlanta, CA 30303-8960; or at tel.: (404) 562-9229; or e-
mail at sampath.sam@epa.gov.
    For EPA Region 5, contact Morris Beaton at USEPA Region 5, 77 West 
Jackson Boulevard, Mail Code: WN16J, Chicago, IL 60604-3507; or at 
tel.: (312) 353-0850; or e-mail at beaton.morris@epa.gov.
    For EPA Region 6, contact Phillip Jennings at USEPA Region 6, 1445 
Ross Avenue, Suite 1200, Mail Code: 6WO, Dallas, TX 75202-2733; or at 
tel.: (214) 665-7538 or e-mail at jennings.phillip@epa.gov.
    For EPA Region 7, contact Kimberly Hill at USEPA Region 7, 901 
North Fifth Street, Mail Code: XX, Kansas City, KS 66101; or at tel.: 
(913) 551-7841 or e-mail at: hill.kimberly@epa.gov.
    For EPA Region 8, contact David Rise at USEPA Region 8, Montana 
Operations Office, Federal Building, 10 West 15th Street, Suite 3200, 
Mail Code: 8MO, Helena, MT 59626; or at tel.: 406-457-5012 or e-mail 
at: rise.david@epa.gov.
    For EPA Region 9, contact Pascal Mues, USEPA Region 9, 75 Hawthorne 
Street, Mail Code: WTR-5, San Francisco, CA 94105; or at tel.: (415) 
972-3768 or e-mail at: mues.pascal@epa.gov.
    For EPA Region 10, contact Dirk Helder, USEPA Region 10 Idaho 
Operations Office, 1435 North Orchard Street, Boise, ID 83706 or at 
tel.: 208-378-5749 or e-mail at: helder.dirk@epa.gov.

II. Statutory and Regulatory History

A. Clean Water Act

    Section 301(a) of the Clean Water Act (CWA) provides that ``the 
discharge of any pollutant by any person shall be unlawful'' unless the 
discharge is in compliance with certain other sections of the Act. 33 
U.S.C. 1311(a). The CWA defines ``discharge of a pollutant'' as ``(A) 
any addition of any pollutant to navigable waters from any point 
source, (B) any addition of any pollutant to the waters of the 
contiguous zone or the ocean from any point source other than a vessel 
or other floating craft.'' 33 U.S.C. 1362(12). A ``point source'' is 
any ``discernible, confined and discrete conveyance'' but does not 
include ``agricultural stormwater discharges and return flows from 
irrigated agriculture.'' 33 U.S.C. 1362(14).
    The term ``pollutant'' includes, among other things, ``garbage * * 
* chemical wastes, biological materials * * * and industrial, 
municipal, and agricultural waste discharged into water.'' 33 U.S.C. 
1362(6).
    A person may discharge a pollutant without violating the section 
301 prohibition by obtaining authorization to discharge (referred to 
herein as

[[Page 31779]]

``coverage'') under a section 402 National Pollutant Discharge 
Elimination System (NPDES) permit (33 U.S.C. 1342). Under section 
402(a), EPA may ``issue a permit for the discharge of any pollutant, or 
combination of pollutants, notwithstanding section 1311(a)'' upon 
certain conditions required by the Act.

B. NPDES Permits

    An NPDES permit authorizes the discharge of a specified amount of a 
pollutant or pollutants into a receiving water under certain 
conditions. The NPDES program relies on two types of permits: 
individual and general. An individual permit is a permit specifically 
tailored for an individual discharger. Upon receiving the appropriate 
permit application(s), the permitting authority, i.e., EPA or a state 
or territory, develops a draft permit for public comment for that 
particular discharger based on the information contained in the permit 
application (e.g., type of activity, nature of discharge, receiving 
water quality). Following consideration of public comments, a final 
permit is then issued to the discharger for a specific time period (not 
to exceed 5 years) with a provision for reapplying for further permit 
coverage prior to the expiration date.
    A general permit covers multiple facilities/sites/activities within 
a specific category for a specific period of time (not to exceed 5 
years). For general permits, EPA or a state or territory develops and 
issues the permit with dischargers then obtaining coverage under the 
permit, typically through submission of a Notice of Intent (NOI). A 
general permit is also subject to public comment, as is being done 
under this Federal Register notice, and is developed and issued by a 
permitting authority (in this case, EPA).
    Under 40 CFR 122.28, general permits may be written to cover 
categories of point sources having common elements, such as facilities 
that involve the same or substantially similar types of operations, 
that discharge the same types of wastes, or that are more appropriately 
regulated by a general permit. Given the vast number of pesticide 
applicators requiring NPDES permit coverage and the discharges common 
to these applicators, EPA believes that it makes administrative sense 
to issue this general permit, rather than issuing individual permits to 
each applicator. Entities still have the ability to seek individual 
permit coverage. Courts have approved of the use of general permits. 
See e.g., Natural Res. Def. Council v. Costle, 568 F.2d 1369 (DC Cir. 
1977); EDC v. U.S. EPA, 344 F.3d 832, 853 (Ninth Cir. 2003). The 
general permit approach allows EPA to allocate resources in a more 
efficient manner and to provide more timely coverage. As with any 
permit, the CWA requires the general permit to contain technology-based 
effluent limitations, as well as any more stringent limits when 
necessary to meet applicable state water quality standards.

C. History of Pesticide Application Regulation Under FIFRA

    EPA regulates the sale, distribution and use of pesticides in the 
United States under the statutory framework of FIFRA to ensure that, 
when used in conformance with FIFRA labeling directions, pesticides 
will not pose unreasonable risks to human health and the environment. 
All new pesticides must undergo a rigorous registration procedure under 
FIFRA during which EPA assesses a variety of potential human health and 
environmental effects associated with use of the product. Under FIFRA, 
EPA is required to consider the effects of pesticides on the 
environment by determining, among other things, whether a pesticide 
``will perform its intended function without unreasonable adverse 
effects on the environment,'' and whether ``when used in accordance 
with widespread and commonly recognized practice [the pesticide] will 
not generally cause unreasonable adverse effects on the environment.'' 
7 U.S.C. 136a(c)(5). In performing this analysis, EPA examines, among 
other things, the ingredients of a pesticide, the intended type of 
application site and directions for use, and supporting scientific 
studies for human health and environmental effects and exposures. The 
applicant for registration of the pesticide must submit data as 
required by EPA regulations.
    When EPA approves a pesticide for a particular use, the Agency 
imposes labeling restrictions governing such use. Compliance with the 
labeling requirements ensures that the pesticide serves an intended 
purpose and avoids unreasonable adverse effects. It is illegal under 
Section 12(a)(2)(G) of FIFRA to use a registered pesticide in a manner 
inconsistent with its labeling. States have primary authority under 
FIFRA to enforce ``use'' violations, but both the States and EPA have 
ample authority to prosecute pesticide misuse when it occurs.

D. Court Decisions Leading to the CWA Regulation Concerning Pesticide 
Applications

    Over the past ten years, several courts addressed the question of 
whether the CWA requires NPDES permits for pesticide applications. 
These cases resulted in some confusion among the regulated community 
and other affected citizens about the applicability of the CWA to 
pesticides applied to waters of the United States. In 2001, the U.S. 
Court of Appeals for the Ninth Circuit held in Headwaters, Inc. v. 
Talent Irrigation District (Talent) that an applicator of herbicides 
was required to obtain an NPDES permit under the circumstances before 
the court. 243 F.3rd 526 (Ninth Cir. 2001).
    In 2002, the Ninth Circuit in League of Wilderness Defenders et al. 
v. Forsgren (Forsgren) held that the application of pesticides to 
control Douglas Fir Tussock Moths in National Forest lands required an 
NPDES permit. 309 F.3d 1181 (Ninth Cir. 2002). The court in Forsgren 
did not analyze the question of whether the pesticides applied were 
pollutants, because it incorrectly assumed that the parties agreed that 
they were (in fact, the United States expressly reserved its arguments 
on that issue in its brief to the District Court. Id. at 1184, n.2). 
The court instead analyzed the question of whether the aerial 
application of the pesticide constituted a point source discharge, and 
concluded that it did. Id. at 1185.
    Since Talent and Forsgren, California, Nevada, Oregon, and 
Washington, all of which are within the Ninth Circuit, have issued 
permits for the application of certain types of pesticides (e.g., 
products to control aquatic weeds and algae and products to control 
mosquito larvae). Other States have continued their longstanding 
practice of not issuing permits to people who apply pesticides to 
waters of the United States. These varying practices reflected the 
substantial uncertainty among regulators, the regulated community, and 
the public regarding how the CWA applies to pesticides that have been 
properly applied and used for their intended purpose.
    Additionally, the Second Circuit Court of Appeals addressed the 
applicability of the CWA's NPDES permit requirements to pesticide 
applications. In Altman v. Town of Amherst (Altman), the court vacated 
and remanded for further development of the record a District Court 
decision holding that the Town of Amherst was not required to obtain an 
NPDES permit to spray mosquitocides over waters of the United States. 
47 Fed. Appx. 62, 67 (Second Cir. 2002). The United States filed an 
amicus brief setting forth the Agency's views in the context of that 
particular case. In its opinion, the Second Circuit stated that 
``[u]ntil the EPA articulates a clear interpretation of

[[Page 31780]]

current law--among other things, whether properly used pesticides 
released into or over waters of the United States can trigger the 
requirement for NPDES permits * * * --the question of whether properly 
used pesticides can become pollutants that violate the CWA will remain 
open.'' Id. at 67.
    In 2005, the Ninth Circuit again addressed the CWA's applicability 
to pesticide applications. In Fairhurst v. Hagener, the court held that 
pesticides applied directly to a lake to eliminate non-native fish 
species, where there are no residues or unintended effects, are not 
``pollutants'' under the CWA because they are not chemical wastes. 422 
F.3d 1146 (Ninth Cir. 2005).
    Recently, the Second Circuit reaffirmed the recent Sixth Circuit 
decision in ruling that trucks and helicopters that sprayed pesticides 
should be considered point sources under the CWA. Peconic Baykeeper 
Inc. v. Suffolk County, 2nd Cir., No. 09-97-cv, 3/30/10.

E. 2006 Agency Rulemaking Excluding Discharges From Pesticides From 
NPDES Permitting

    On November 27, 2006 (71 FR 68483), EPA issued a final rule 
(hereinafter called the ``2006 NPDES Pesticides Rule'') clarifying two 
specific circumstances in which an NPDES permit is not required to 
apply pesticides to or over, including near water provided that the 
application is consistent with relevant Federal Insecticide, Fungicide 
and Rodenticide Act (FIFRA) requirements. They are: (1) The application 
of pesticides directly to water to control pests; and (2) the 
application of pesticides to control pests that are present over, 
including near, water where a portion of the pesticides will 
unavoidably be deposited to the water to target the pests.

F. Legal Challenges to the 2006 NPDES Pesticides Rule and Resulting 
Court Decision

    On January 19, 2007, EPA received petitions for review of the 2006 
NPDES Pesticides Rule from both environmental and industry groups. 
Petitions were filed in eleven circuit courts with the case, National 
Cotton Council, et al, v. EPA, assigned to the Sixth Circuit Court of 
Appeals (Sixth Circuit). On January 9, 2009, the Sixth Circuit vacated 
EPA's 2006 NPDES Pesticides Rule under a plain language reading of the 
CWA. National Cotton Council of America v. EPA, 553 F.3d 927 (Sixth 
Cir. 2009). The Court held that the CWA unambiguously includes 
``biological pesticides,'' and ``chemical pesticides'' that leave a 
residue within its definition of ``pollutant.'' Specifically, the 
application of chemical pesticides that leaves no residue is not a 
pollutant. The Court also found that the application of pesticides is 
from a point source.
    Based on the Court's decision, chemical pesticides that leave no 
residue do not require an NPDES permit. However, EPA assumes for 
purpose of this permit that all chemical pesticides have a residue, 
and, therefore would need a permit unless it can be shown that there is 
no residual. Unlike chemical pesticides (where the residual is the 
pollutant), the Court further found that biological pesticides are 
pollutants regardless of whether the application results in residuals 
and such discharges need an NPDES permit.
    In response to this decision, on April 9, 2009, EPA requested a 
two-year stay of the mandate to provide the Agency time to develop 
general permits, to assist NPDES-authorized states to develop their 
NPDES permits, and to provide outreach and education to the regulated 
community and other stakeholders. On June 8, 2009, the Sixth Circuit 
granted EPA the two-year stay of the mandate until April 9, 2011. On 
November 2, 2009, Industry Petitioners of the Sixth Circuit Case 
petitioned the Supreme Court to review the Sixth Circuit's decision. On 
February 22, 2010, the Supreme Court issued its decision denying 
petitions to review the Sixth Circuit decision.
    As a result of the Court's decision on the 2006 NPDES Pesticides 
Rule, at the end of the two-year stay, NPDES permits will be required 
for point source discharges to waters of the U.S. of biological 
pesticides, and of chemical pesticides that leave a residue. Until 
April 9, 2011, the rule remains in effect and NPDES permits are not 
required.
    In response to the Court's decision, EPA is proposing this draft 
general permit for four specific pesticide use patterns. The specified 
use patterns may not represent every pesticide application activity for 
which a discharge requires NPDES permit coverage. The four use patterns 
included in this draft permit are generally consistent with what was 
addressed in the 2006 NPDES Pesticides Rule.
    Neither the Court's ruling nor EPA's issuance of this general 
permit affects the existing CWA exemptions for irrigation return flow 
and agricultural stormwater runoff, which are excluded from the 
definition of a point source under Section 502(14) of the CWA and do 
not require NPDES permit coverage.

III. Scope and Applicability of This NPDES Pesticides General Permit

A. Geographic Coverage

    EPA will provide permit coverage for classes of discharges where 
EPA is the NPDES permitting authority. The geographic coverage of 
today's draft permit is listed below. Where this permit covers 
activities on Indian Country lands, those areas are as listed below 
within the borders of that state:

EPA Region 1

     The Commonwealth of Massachusetts, including Indian 
Country lands
     Indian Country lands within the State of Connecticut
     The State of New Hampshire
     Indian Country lands within the State of Rhode Island
     Federal Facilities in the State of Vermont

EPA Region 2

     Indian Country lands within the State of New York
     The Commonwealth of Puerto Rico

EPA Region 3

     The District of Columbia
     Federal Facilities in the State of Delaware

EPA Region 4

     Indian Country lands within the State of Alabama
     Indian Country lands within the State of Florida
     Indian Country lands within the State of Mississippi
     Indian Country lands within the State of North Carolina

EPA Region 5

     Indian Country lands within the State of Michigan
     Indian Country lands within the State of Minnesota
     Indian Country lands within the State of Wisconsin

EPA Region 6

     Indian Country lands within the State of Louisiana
     The State of New Mexico, including Indian Country lands 
within the State of New Mexico, except Navajo Reservation Lands (see 
Region 9) and Ute Mountain Reservation Lands (see Region 8)
     The State of Oklahoma, including Indian Country lands
     Discharges in the State of Texas that are not under the 
authority of the Texas Commission on Environmental Quality (formerly 
TNRCC), including activities associated with the exploration, 
development, or production of oil or gas

[[Page 31781]]

or geothermal resources, including transportation of crude oil or 
natural gas by pipeline
     Indian Country lands within the State of Texas

EPA Region 7

     Indian Country lands within the State of Iowa
     Indian Country lands within the State of Kansas
     Indian Country lands the State of Nebraska, except Pine 
Ridge Reservation lands (see Region 8)

EPA Region 8

     Federal Facilities in the State of Colorado, except those 
located on Indian Country lands
     Indian Country lands within the State of Colorado, as well 
as the portion of the Ute Mountain Reservation located in New Mexico
     Indian Country lands within the State of Montana
     Indian Country lands within the State of North Dakota
     Indian Country lands within the State of South Dakota, as 
well as the portion of the Pine Ridge Reservation located in Nebraska 
(see Region 7)
     Indian Country lands within the State of Utah, except 
Goshute and Navajo Reservation lands (see Region 9)
     Indian Country lands within the State of Wyoming

EPA Region 9

     The Island of American Samoa
     Indian Country lands within the State of Arizona as well 
as Navajo Reservation lands in New Mexico (see Region 6) and Utah (see 
Region 8)
     Indian Country lands within the State of California
     The Island of Guam
     The Johnston Atoll
     The Midway Island and Wake Island
     The Commonwealth of the Northern Mariana Islands
     Indian Country lands within the State of Nevada, as well 
as the Duck Valley Reservation in Idaho, the Fort McDermitt Reservation 
in Oregon (see Region 10) and the Goshute Reservation in Utah (see 
Region 8)

EPA Region 10

     The State of Alaska, including Indian Country lands
     The State of Idaho, including Indian Country lands within 
the State of Idaho, except Duck Valley Reservation lands (see Region 9)
     Indian Country lands within the State of Oregon, except 
Fort McDermitt Reservation lands (see Region 9)
     Federal Facilities in the State of Washington, including 
those located on Indian Country lands within the State of Washington

B. Categories of Facilities Covered

    Today's draft general permit regulates discharges to waters of the 
United States from the application of (1) biological pesticides, and 
(2) chemical pesticides that leave a residue for the following 
pesticide use patterns:
     Mosquito and Other Flying Insect Pest Control--to control 
public health/nuisance and other flying insect pests that develop or 
are present during a portion of their life cycle in or above standing 
or flowing water. Public health/nuisance pests in this use category 
include but are not limited to mosquitoes and black flies.
     Aquatic Weed and Algae Control--to control weeds and algae 
in water and at water's edge.
     Aquatic Nuisance Animal Control--to control invasive or 
other nuisance species in water and at water's edge. Aquatic nuisance 
animals in this use category include, but are not limited to fish, 
lampreys, and mollusks.
     Forest Canopy Pest Control--aerial application of a 
pesticide over a forest canopy to control the population of a pest 
species (e.g., insect or pathogen) where to target the pest effectively 
a portion of the pesticide unavoidably will be applied over and 
deposited to water.
    The scope of activities encompassed by these pesticide use patterns 
is described in greater detail in Part 2.2 of this draft general 
permit.

C. Summary of Permit Terms and Requirements

Coverage Under This Permit
    This permit will be available to operators of discharges to waters 
of the U.S. from the application of (1) biological pesticides, and (2) 
chemical pesticides that leave a residue for the following pesticide 
use patterns: mosquito and other flying insect pest control; aquatic 
weed and algae control; aquatic nuisance animal control; and forest 
canopy pest control. Not eligible for coverage under this permit are 
discharges to waters of the U.S. identified as impaired for the 
specific pesticide or its degradates being applied and any discharges 
to outstanding national resource waters (i.e., Tier 3 waters under 
anti-degradation regulations). To obtain authorization under this 
permit an operator must meet the eligibility requirements identified 
above and if the operator knows or reasonably should have known that 
its activities will exceed any annual treatment area threshold 
described in Part 1.2.2 of the permit, then an NOI must be submitted 
for permit coverage.
Threatened and Endangered Species and Critical Habitat
    Section 7(a)(2) of the Endangered Species Act (ESA) requires that 
EPA consult with the U.S. Fish and Wildlife Service and U.S. National 
Marine Fisheries Service (collectively called the ``Services'') to 
ensure that the permit is not likely to jeopardize the continued 
existence of any threatened or endangered species or adversely affect 
its critical habitat. Consultation between EPA and the Services is 
currently ongoing with the results of that action to be included in the 
final permit. As a result of these consultations, EPA may need to 
consider adding conditions to the permit to further protect listed 
species and critical habitat. These requirements may include additional 
effluent limitations, monitoring, planning, recordkeeping, and/or 
reporting. A more detailed discussion of the permit conditions that may 
be considered is provided in Part III.10.F. of the permit fact sheet. 
Based on consultation to date, EPA included language in the draft 
general permit that would require:

--Any operator that is required to submit an NOI to indicate in that 
NOI whether threatened and endangered species and/or its critical 
habitat are present in the area where permit coverage is being 
requested;
--Where a pre-existing ESA Section 7 or Section 10 action already 
addresses discharges from activities also covered under this permit, 
that the conditions and/or requirements of those actions are 
incorporated as enforceable conditions of this general permit; and
--All operators to notify the Services if they become aware of any 
adverse incident to a Federally-listed threatened or endangered species 
or its critical habitat, that may have resulted from a discharge from 
their pesticide application.

EPA requests comment on appropriate measures to protect endangered and 
threatened species, including the possible measures discussed in Part 
III.10.F of the draft Permit Fact Sheet.
Technology-Based Effluent Limitations
    The draft permit, in Part 2, requires all operators to minimize 
pesticide discharges into waters by doing the following: (1) Use the 
lowest effective amount of pesticide product per application and 
optimum frequency of pesticide applications necessary to control the 
target pest; (2) perform

[[Page 31782]]

regular maintenance activities to reduce leaks, spills, or unintended 
discharges of pesticides associated with the application of pesticides 
covered under this permit; and (3) maintain application equipment in 
proper operating condition by calibrating and cleaning/repairing such 
equipment on a regular basis to ensure effective pesticide application 
and pest control. Operators that exceed an annual treatment area 
threshold must also implement Integrated Pest Management (IPM) 
practices that require these operators to: (1) Identify and assess the 
pest problem; (2) evaluate effective pest management; and (3) follow 
appropriate procedures for pesticide use.
    It is important to note that although the FIFRA labeling is not an 
effluent limitation, if the permittee is found to have applied a 
pesticide in a manner inconsistent with the relevant water-quality 
related FIFRA labeling requirements, EPA will presume that the effluent 
limitation to minimize pesticides entering the Waters of the United 
States has been violated under the NPDES permit. Therefore, use 
inconsistent with certain FIFRA labeling requirements could result in 
the permittee being held liable for CWA violation as well as a FIFRA 
violation.
Water Quality-Based Effluent Limitations
    In addition to the technology-based effluent limitations, the 
operator is required to control its discharge as necessary to meet 
applicable water quality standards. In general, EPA expects that 
compliance with the technology-based effluent limitations and other 
terms and conditions in this permit will meet the water-quality 
effluent limitation. Part 3 contains permit conditions to prohibit any 
discharges that causes or contributes to an excursion of any applicable 
numeric or narrative EPA-approved State, territory, or tribal or EPA 
promulgated water quality standard.
Site Monitoring
    Part 4 requires entities to monitor to assess compliance with this 
permit. Permittees must monitor for observable adverse incidents in the 
treatment area and where pesticides are discharged to waters of the 
United States. Specifically operators are required to visually monitor 
for adverse impacts (as defined in the permit) during application, or 
during post application surveillance that is conducted as a regular 
part of doing business.
Pesticide Discharge Management Plan
    An operator who is subject to Part 2.2 of this permit (i.e., one 
who is required to submit an NOI) must prepare a pesticide discharge 
management plan (PDMP) for its pest management area. Operators who know 
or should have reasonably known prior to commencement of discharge, 
that they will exceed an annual treatment area threshold identified in 
Part 1.2.2 for that year, must develop a PDMP prior to first pesticide 
application covered under this permit. Operators who do not know or 
would reasonably not know until after commencement of discharge, that 
they will exceed an annual treatment area threshold identified in Part 
1.2.2 for that year, must develop a PDMP prior to exceeding the annual 
treatment area threshold. Operators commencing discharge in response to 
a declared pest emergency situation as defined in Appendix A, that will 
cause the operator to exceed an annual treatment area threshold, must 
develop a PDMP no later than 90 days after responding to the declared 
pest emergency. The PDMP must include information on the pesticide 
discharge management team, pest management area, control measure, 
including evaluation and selection of pest management, and schedules 
and procedures for pest surveillance, equipment maintenance, 
application rate and frequency, assessing environmental conditions, 
spill prevention, spill response, adverse incident response, and 
pesticide monitoring. The PDMP, together with the additional 
documentation requirements in Part 7, document the practices the 
operator is implementing to meet the effluent limitations in this 
permit.
Corrective Action
    Part 6 outlines situations that require operators to review and 
revise their control measures. Changes to control measures must be made 
before the next pesticide application that results in a discharge or, 
if not possible, as soon as practicable. This draft permit also 
outlines the procedures for notification, reporting, and documentation 
of corrective actions for adverse incidents, spills and leaks and other 
situations triggering the need for such actions.
Recordkeeping and Annual Reporting
    In Part 7, operators required to submit an NOI are required to keep 
certain records of their pesticide discharges to demonstrate compliance 
with the permit conditions. This draft permit specifies which records 
must be kept and the timeframe for record retention. In addition, any 
operator who is required to submit an NOI must submit an annual report 
to EPA. The draft permit specifies the information that must be 
included in the annual report and the timeframe for submission.

D. Key Permit Provisions for Which EPA Is Soliciting Comment

    EPA seeks comment on all aspects of this draft general permit and 
the accompanying fact sheet; however, in particular, EPA is soliciting 
comments on the following aspects of this permit:
Number of Entities Covered Under This Permit
    This general permit provides coverage for the following four use 
patterns: mosquito and other flying insect pest control; aquatic weed 
and algae control; aquatic nuisance animal control; and forest canopy 
pest control. To gain a better understanding of the universe of 
permittees that would be covered under this permit, EPA is soliciting 
information on the numbers, types and sizes of entities that conduct 
pesticide application for each use pattern. Entities include those who 
decide that application of pesticides is necessary (for example, 
mosquito control districts, counties, irrigation control districts and 
other local governments) as well as those entities that apply the 
pesticides (for example, for-hire commercial applicators).
Activities Covered
    This general permit provides coverage for the following four use 
patterns: mosquito and other flying insect pest control; aquatic weed 
and algae control; aquatic nuisance animal control; and forest canopy 
pest control.
    EPA believes that these four use patterns would encompass the 
majority of pesticide applications that would result in point source 
discharges to waters of the U.S. This draft permit would not provide 
coverage for other pesticide use patterns; however, EPA is still 
exploring whether other use patterns should be included. Specifically, 
EPA has not included most use patterns that target land-based pests and 
flying pests that are not near or over water. EPA is seeking comment on 
whether certain pesticide application activities targeting such pests 
may involve unavoidable point-source discharges to waters of the United 
States. EPA is also requesting comment on whether this general permit 
should provide coverage for any such activities, and if so, which 
activities should be covered. If, after considering comments, EPA 
expands coverage of this permit, the effluent limitations for the

[[Page 31783]]

additional use patterns would likely be similar to what is being 
proposed in this draft permit. Due to the likely similarities between 
such additional activities and the associated effluent limitations, EPA 
expects that there will not be a need to re-propose the general permit 
to cover such additional activities in the final permit. In this case, 
entities in the newly included use pattern(s) could seek coverage under 
this general permit. Any point source discharges of pollutants to 
waters of the United States not covered by this or another general 
permit will need coverage under an individual permit. EPA also requests 
comments on how the effluent limitations provided in this permit could 
apply to the additional activities and whether there are additional or 
different effluent limitations that might be appropriate for such 
activities. EPA is also soliciting comments on whether it should 
exclude from coverage under the general permit all discharges to waters 
that are impaired generally for ``pesticides'' rather than only 
excluding from coverage those discharges to waters that are impaired 
for the specific pesticide being applied or its degradates.
Limitations on Coverage
    This permit does not authorize coverage for certain discharges to 
pesticide-impaired waters and Tier 3 waters. Specifically, this permit 
does not authorize discharges of pesticides or their degradates to 
waters impaired for those specific pesticides or degradates. 
Additionally, this permit does not authorize discharges to outstanding 
national resource waters (Tier 3 waters). EPA would like input on 
whether it is appropriate to exclude these discharges from coverage 
under the general permit or if there are conditions that could be added 
to the general permit that could adequately address these situations.
Sharing of Responsibilities
    This permit establishes requirements to control discharges from the 
application of pesticides that are specific to the discharge regardless 
of who is defined as the ``operator'' of the discharge. An ``operator'' 
is defined as that entity required under the NPDES program to obtain 
permit coverage for point source discharges of pollutants to waters of 
the United States. As written, this permit acknowledges that in many 
instances, the entity making the decision to apply pesticides is 
different than the entity that actually applies the pesticides (for 
example, a mosquito control district may decide that a pesticide 
application is needed and enter into a contract with a for-hire 
commercial applicator to perform the application). EPA, however, 
defines both of these entities as ``operators.'' EPA drafted this 
permit with the intent of clarifying which entity is expected to 
implement which permit conditions with the goal of minimizing 
duplication of effort while still providing flexibility for multiple 
operators to decide how compliance with permit conditions will be 
achieved. Generally, the entity making the decision to apply pesticides 
is responsible for complying with provisions of the permit leading up 
to the actual application of the pesticide (such as IPM identifying and 
assessing the pest problem) and any activities after application of the 
pesticide. The applicator of the pesticide, if different, is 
responsible for those permit requirements that occur during or directly 
related to the actual application of the pesticide (such as maintaining 
and calibrating equipment). EPA is interested in whether the approach 
in this draft general permit is clear and if it provides a logical 
approach to the expected sharing of responsibilities.
Notices of Intent
    In general, as set forth in 40 CFR 122.28(b)(2), dischargers 
seeking coverage under a general permit must submit a notice of intent 
(NOI) to be covered by the permit. However, 40 CFR 122.28(b)(2)(v) 
provides EPA the authority to cover entities under a general permit 
without requiring the submission of an NOI. In Part 1.2.2 of this 
permit, EPA proposes annual treatment area thresholds for the 
submission of NOIs. EPA is proposing this NOI framework to: (1) Obtain 
NOIs from the largest dischargers, (2) eliminate duplicative reporting 
by multiple operators for an individual discharge, and (3) clarify the 
type of entity responsible for submitting the NOI. Operators that do 
not exceed an annual treatment area threshold are covered automatically 
under this permit without the need to submit an NOI. EPA is interested 
in feedback on whether this NOI framework strikes an appropriate 
balance between capturing information on discharges from the largest 
pesticide application activities and avoiding the imposition of 
unreasonable burdens on operators whose pesticide application 
activities affect smaller areas. EPA is also interested in information 
on whether the size of the thresholds is appropriate, and whether they 
result in obtaining NOIs from an appropriately targeted set of large 
dischargers.
    If an NOI is required, it must contain either a map or narrative 
description of the area and the waters of the United States and the 
pesticide use patterns for which permit coverage is being requested for 
the duration of the permit. Operators can identify specific waters or 
request coverage for all waters within the area for which they are 
requesting permit coverage. EPA is interested in feedback on whether 
this approach adequately captures the areas and associated waters of 
the United States for which permit coverage is being requested.
Technology-Based Effluent Limitations
    This draft permit contains narrative technology-based effluent 
limitations for the class and scope of activities and operators covered 
under this permit. After much research and discussion with experts, EPA 
determined that the effluent limitations identified in Part 2 of the 
permit, including IPM practice