Final National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit for Point Source Discharges From the Application of Pesticides, 68750-68756 [2011-28770]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 215 (Monday, November 7, 2011)]
[Notices]
[Pages 68750-68756]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28770]



[[Page 68750]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2010-0257; FRL-9487-9]
 RIN 2040-ZA08


Final 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 final permit.

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SUMMARY: This notice announces the NPDES general permit for point 
source discharges from the application of pesticides to waters of the 
United States, also referred to as the Pesticide General Permit (PGP). 
A draft PGP was published on June 4, 2010 for public comment. 75 FR 
31775. All ten EPA Regions today are issuing the final NPDES PGP, which 
will be available 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 of 
biological pesticides and chemical pesticides that leave a residue 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 stay of the Court's mandate to provide time to draft and 
implement the permit noticed today. The stay of the mandate expires on 
October 31, 2011; after which, NPDES permits will be required for such 
point source discharges to waters of the United States.

DATES: This action is effective on October 31, 2011.

FOR FURTHER INFORMATION CONTACT: For further information on this final 
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 
email: 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. Who are the EPA regional contacts for this final permit?
II. Statutory and Regulatory History
    A. Clean Water Act
    B. NPDES Permits
    C. History of Pesticide Application Regulations Under FIFRA
    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
    G. Publication of the Draft NPDES Pesticide General Permit
III. Scope and Applicability of This NPDES Pesticide General Permit
    A. Geographic Coverage
    B. Categories of Facilities Covered
    C. Summary of Permit Terms and Requirements
IV. Economic Impacts of the Pesticide General Permit
V. Executive Orders 12866 and 13563

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:

         Table 1--Entities Potentially Regulated by This Permit
------------------------------------------------------------------------
                                                        Examples of
           Category                   NAICS         potentially affected
                                                          entities
------------------------------------------------------------------------
Agriculture parties--General    111 Crop           Producers of crops
 agricultural interests,         Production..       mainly for food and
 farmers/producers, forestry,                       fiber including
 and irrigation.                                    farms, orchards,
                                                    groves, greenhouses,
                                                    and nurseries that
                                                    have irrigation
                                                    ditches requiring
                                                    pest control.
                                113110 Timber      The operation of
                                 Tract Operations   timber tracts for
                                 113210 Forest      the purpose of
                                 Nurseries          selling standing
                                 Gathering of       timber. Growing
                                 Forest Products.   trees for
                                                    reforestation and/or
                                                    gathering forest
                                                    products, such as
                                                    gums, barks, balsam
                                                    needles, rhizomes,
                                                    fibers, Spanish
                                                    moss, ginseng, and
                                                    truffles.
                                221310 Water       Operating irrigation
                                 Supply for         systems.
                                 Irrigation.
Pesticide parties (includes     325320 Pesticide   Formulation and
 pesticide manufacturers,        and Other          preparation of
 other pesticide users/          Agricultural       agricultural pest
 interests, and consultants).    Chemical           control chemicals.
                                 Manufacturing.
Public health parties           923120             Government
 (includes mosquito or other     Administration     establishments
 vector control districts and    of Public Health   primarily engaged in
 commercial applicators that     Programs.          the planning,
 service these).                                    administration, and
                                                    coordination of
                                                    public health
                                                    programs and
                                                    services, including
                                                    environmental health
                                                    activities.
Resource management parties     924110             Government
 (includes State departments     Administration     establishments
 of fish and wildlife, State     of Air and Water   primarily engaged in
 departments of pesticide        Resource and       the administration,
 regulation, State               Solid Waste        regulation, and
 environmental agencies, and     Management         enforcement of air
 universities).                  Programs.          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.

[[Page 68751]]

 
                                924120             Government
                                 Administration     establishments
                                 of Conservation    primarily engaged in
                                 Programs.          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 final permit and fact sheet are 
available on EPA's NPDES Web site at https://www.epa.gov/npdes/pesticides.
    An electronic version of the public docket is available through 
EPA's 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. Who are the EPA regional contacts for this final 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 email 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 email 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 email 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 
email 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 email at beaton.morris@epa.gov.
    For EPA Region 6, contact Jenelle Hill at USEPA Region 6, 1445 Ross 
Avenue, Suite 1200, Mail Code: 6WO, Dallas, TX 75202-2733; or at tel.: 
(214) 665-9737 or email at hill.jenelle@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 email 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 email 
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 email 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 email 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).
    One way a person may discharge a pollutant without violating the 
section

[[Page 68752]]

301 prohibition is by obtaining authorization to discharge (referred to 
herein as ``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 individual 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 individual 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.
    In contrast, 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 
authorized to administer the NPDES program, develops and issues the 
general permit with dischargers then obtaining coverage under the 
already issued general permit, typically through submission of a Notice 
of Intent (NOI). A general permit is also subject to public comment, as 
was done for this permit on June 4, 2010, 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. 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. 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 (9th Cir. 2003).

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 (9th 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 (9th 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

[[Page 68753]]

(2nd 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 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 (9th 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, 600 F.3d 180 (2nd Cir. 2010).

E. 2006 Agency Rulemaking Excluding Discharges From Pesticide 
Applications 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 Pesticide 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. 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 (6th 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. Thus, point source discharges of biological pesticides and 
chemical pesticide residues to Waters of the United States require an 
NPDES permit. This also means (as also supported by other court cases) 
that point source discharges to waters of the United States from 
pesticides applied for forest pest control activities need to obtain an 
NPDES permit (see Section III.1 of the Fact Sheet for further 
discussion).
    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 a 
general permit, 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 issuing this final 
general permit for four specific pesticide use patterns with an 
effective date of April 9, 2011, i.e., the date upon which NPDES 
permits are required for discharges from the application of pesticides. 
The specified use patterns may not represent every pesticide 
application activity for which a discharge requires NPDES permit 
coverage; however, the Agency believes these four use patterns 
represent a significant portion of those activities for which permit 
coverage is now required and is consistent with the use patterns EPA 
contemplated 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.

G. Publication of the Draft NPDES Pesticide General Permit

    EPA worked closely with states and other stakeholders to develop 
the PGP. Because 44 states are required to develop their own permits, 
EPA held three face-to-face meetings and regular conference calls with 
environmental and agricultural agencies in each state, in order to 
share information and ideas on how to permit this new class of NPDES 
permittees. EPA also conducted or attended approximately 150 meetings 
with industry experts, environmental interest groups, and other 
interested stakeholders.
    EPA published the draft NPDES Pesticide General Permit and 
accompanying fact sheet in the Federal Register on June 4, 2010 (75 FR 
31775) soliciting comments on that permit, and accepted public comments 
through July 19, 2010. In addition, EPA held three public meetings, a 
public hearing, and three national webcasts to further educate 
stakeholders on the conditions included in the draft permit and to get 
feedback on specific areas for which EPA sought additional information 
to support finalization of the permit. EPA also conducted formal 
consultation with the Tribes. EPA received over 750 written comment 
letters on the draft permit from a variety of stakeholders, including 
industry; federal, state, and local governments; environmental groups; 
academia; and individual citizens. EPA considered all comments received 
during the comment period in preparing the final general permit. EPA 
responded to all significant comments in the Response to Comment 
Document which is available as part of the docket to this permit.

[[Page 68754]]

H. Posting of the Draft Final NPDES Pesticide General Permit

    On April 1, 2011, EPA posted a pre-publication version of its draft 
final Pesticide General Permit for discharges of pesticide applications 
to U.S. waters. This draft final permit was not considered a ``final 
agency action,'' and the Agency did not solicit public comment on this 
draft final permit. EPA provided a preview of the draft final permit to 
assist states in developing their own permits and for the regulated 
community to become familiar with the permit's requirements before it 
was to become effective. This reflected EPA's commitment to 
transparency and responding to the needs of stakeholders. The draft 
final permit posted on April 1, 2011 contains largely identical 
requirements to the final permit being published today. The principal 
change is the addition of conditions to protect listed species as a 
result of consultation with the National Marine Fisheries Service 
(NMFS) under the Endangered Species Act (ESA). There have also been 
changes to the timing of NOI submission deadlines and some additional 
clarifying changes, but these do not alter the intent of the pre-
publication version posted in April.

III. Scope and Applicability of the NPDES Pesticide General Permit

A. Geographic Coverage

    The PGP will provide permit coverage for discharges in areas where 
EPA is the NPDES permitting authority. The geographic coverage of 
today's final 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
     Massachusetts, including Indian Country lands within 
Massachusetts
     Indian Country lands within Connecticut
     New Hampshire
     Indian Country lands within Rhode Island
     Federal Facilities within Vermont
EPA Region 2
     Indian Country lands within New York
     Puerto Rico
EPA Region 3
     The District of Columbia
     Federal Facilities within Delaware
EPA Region 4
     Indian Country lands within Alabama
     Indian Country lands within Florida
     Indian Country lands within Mississippi
     Indian Country lands within North Carolina
EPA Region 5
     Indian Country lands within Michigan
     Indian Country lands within Minnesota, excluding Sokaogon 
Chippewa Community
     Indian Country lands within Wisconsin, excluding Lac du 
Flambeau Band of Lake Superior Chippewa Indians and Fond du Lac 
Reservation
EPA Region 6
     Indian Country lands within Louisiana
     New Mexico, including Indian Country lands within New 
Mexico, except Navajo Reservation Lands (see Region 9) and Ute Mountain 
Reservation Lands (see Region 8)
     Oklahoma, including Indian Country lands
     Discharges in 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 or geothermal resources, including 
transportation of crude oil or natural gas by pipeline, including 
Indian Country lands within Texas
EPA Region 7
     Indian Country lands within Iowa
     Indian Country lands within Kansas
     Indian Country lands within Nebraska, except Pine Ridge 
Reservation lands (see Region 8)
EPA Region 8
     Federal Facilities within Colorado, including those on 
Indian Country lands within Colorado as well as the portion of the Ute 
Mountain Reservation located in New Mexico
     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 Montana
     Indian Country lands within North Dakota
     Indian Country lands within South Dakota, as well as the 
portion of the Pine Ridge Reservation located within Nebraska (see 
Region 7)
     Indian Country lands within Utah, except Goshute and 
Navajo Reservation lands (see Region 9)
     Indian Country lands within Wyoming
EPA Region 9
     American Samoa
     Indian Country lands within Arizona as well as Navajo 
Reservation lands within New Mexico (see Region 6) and Utah (see Region 
8), excluding for Hualapai Reservation
     Indian Country lands within California
     Guam
     Johnston Atoll
     Midway Island and Wake Island and other unincorporated 
U.S. possessions
     Northern Mariana Islands
     Indian Country lands within Nevada, as well as the Duck 
Valley Reservation within Idaho, the Fort McDermitt Reservation within 
Oregon (see Region 10) and the Goshute Reservation within Utah (see 
Region 8)
EPA Region 10
     Alaska, including Indian Country lands
     The State of Idaho, including Indian Country lands within 
Idaho, except Duck Valley Reservation lands (see Region 9), excluding 
Puyallup Tribe Reservation
     Indian Country lands within Oregon, except Fort McDermitt 
Reservation lands (see Region 9)
     Federal Facilities in Washington, including those located 
on Indian Country lands within Washington, excluding Puyallup Tribe 
Reservation

B. Categories of Facilities Covered

    The final 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 four 
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 and other flying insect pests 
in this use category include mosquitoes and black flies.
     Weed and Algae Pest Control--to control weeds, algae, and 
pathogens that are pests in water and at water's edge, including 
ditches and/or canals.
     Animal Pest Control--to control animal pests in water and 
at water's edge. Animal pests in this use category include fish, 
lampreys, insects, mollusks, and pathogens.
     Forest Canopy Pest Control--application of a pesticide to 
a forest canopy to control the population of a pest species (e.g., 
insect or pathogen) where, to target the pests effectively, a portion 
of the pesticide unavoidably will be applied over and deposited to 
water.

[[Page 68755]]

    The scope of activities encompassed by these pesticide use patterns 
is described in greater detail in Part III.1.1. of the fact sheet for 
the final general permit.

C. Summary of Permit Terms and Requirements

    The following is a summary of the final PGP's requirements:
     The PGP defines Operator (i.e., the entity required to 
obtain NPDES permit coverage for discharges) to include any (a) 
Applicator who performs the application of pesticides or has day-to-day 
control of the application of pesticides that results in a discharge to 
Waters of the United States, or (b) Decision-maker who controls any 
decision to apply pesticides that results in a discharge to Waters of 
the United States. There may be instances when a single entity acts as 
both an Applicator and a Decision-maker.
     All Applicators are required to minimize pesticide 
discharges by using only the amount of pesticide and frequency of 
pesticide application necessary to control the target pest, maintain 
pesticide application equipment in proper operating condition, control 
discharges as necessary to meet applicable water quality standards, and 
monitor for and report any adverse incidents.
     All Decision-makers are required, to the extent not 
determined by the Applicator, to minimize pesticide discharges by using 
only the amount of pesticide and frequency of pesticide application 
necessary to control the target pest. All Decision-makers are also 
required to control discharges as necessary to meet applicable water 
quality standards and monitor for and report any adverse incidents.
     Coverage under this permit is available only for 
discharges and discharge-related activities that are not likely to 
adversely affect species that are federally-listed as endangered or 
threatened (``listed'') under the Endangered Species Act (ESA) or 
habitat that is federally-designated as critical under the ESA 
(``critical habitat''), except for certain cases specified in the 
permit involving prior consultation with the Services and Declared Pest 
Emergencies. The permit contains several provisions addressing listed 
species, including for certain listed species identified in the permit 
as NMFS Listed Resources of Concern, that Decision-makers whose 
discharges may affect these resources certify compliance with one of 
six criteria which together ensure that any potential adverse effects 
have been properly considered and addressed. These NMFS Listed 
Resources of Concern for the PGP are identified in detail on EPA's Web 
site at https://www.epa.gov/npdes/pesticides. These provisions were 
added as a result of consultation between EPA and the National Marine 
Fisheries Service (NMFS), as required under Section 7 of the Endangered 
Species Act. Other requirements that address protection of listed 
species include the waiting periods between submission of an NOI and 
authorization to discharge, and specific permit conditions requiring 
compliance with the results of any ESA Section 7 consultation with the 
Services, or ESA Section 10 permit issued by the Services.
     Certain Decision-makers (i.e., any agency for which pest 
management for land resource stewardship is an integral part of the 
organization's operations, entities with a specific responsibility to 
control pests (e.g., mosquito and weed control districts), local 
governments or other entities that apply pesticides in excess of 
specified annual treatment area thresholds, and entities that discharge 
pesticides to Tier 3 waters or to Waters of the United States 
containing NMFS Listed Resources of Concern) are required to also 
submit a Notice of Intent (NOI) to obtain authorization to discharge 
and implement pest management options to reduce the discharge of 
pesticides to Waters of the United States. Certain large Decision-
makers must also develop a Pesticide Discharge Management Plan (PDMP), 
submit annual reports, and maintain detailed records. Certain small 
Decision-makers are required to complete a pesticide discharge 
evaluation worksheet for each pesticide application (in lieu of the 
more comprehensive PDMP), an annual report, and detailed recordkeeping.
    Permit conditions take effect as of October 31, 2011; however, 
Operators with eligible discharges are authorized for permit coverage 
through January 12, 2010 without submission of an NOI. Thus, for any 
discharges commencing on or before January 12, 2012 that will continue 
after this date, an NOI will need to be submitted no later than January 
2, 2012 to ensure uninterrupted permit coverage, and for any discharge 
occurring after January 12, 2012, no later than 10 days before the 
first discharge occurring after January 12, 2012.
    The following is a summary of permit terms and requirements 
modified from the draft PGP public noticed on June 4, 2010:
     Expanded the forest canopy pest control use pattern to 
also include pesticide application activities performed from the 
ground;
     Expanded eligibility provisions to provide for coverage 
for discharges to Tier 3 waters from pesticide applications made to 
restore or maintain water quality or to protect public health or the 
environment that either do not degrade water quality or that only 
degrade water quality on a short-term or temporary basis;
     Eliminated the requirement for certain Applicators to 
submit NOIs;
     Revised annual treatment area thresholds (which trigger 
the need for NOI submission and implementation of more comprehensive 
Pest Management Measures and documentation);
     Delayed discharge date for which NOIs are required for a 
little more than two months after permit issuance;
     Refined definitions of ``Operator,'' ``Applicator,'' and 
``Decision-maker,'' for purposes of delineating responsibilities under 
the permit between Applicators and Decision-makers based on EPA's 
expectation for these two groups of Operators;
     Added requirement for Applicators to assess weather 
conditions in the treatment area to ensure pesticide application is 
consistent with all federal requirements;
     Added requirement for certain Operators to document visual 
monitoring activities, Provided different responsibilities for small 
Decision-makers to complete a pesticide discharge evaluation worksheet 
in lieu of a more comprehensive PDMP, annual report, and detailed 
recordkeeping; and
     Added specific permit conditions for states and Tribes in 
accordance with CWA section 401 certifications.

IV. Economic Impacts of the Pesticide General Permit

    As a result of the Sixth Circuit Court decision on EPA's 2006 NPDES 
Pesticides Rule, operators of discharges to waters of the U.S. from the 
application of pesticides now require NPDES permits for those 
discharges. EPA expects that costs associated with complying with the 
effluent limitations under this general permit will be similar to costs 
under individual permits for similar activities; however, 
administrative costs for both EPA as the permitting authority and 
operators as permittees are expected to be lower under this general 
permit than under individual permits. In other words, the general 
permit itself can be expected to reduce rather than increase costs for 
permittees as compared to the baseline of individual permitting.
    EPA expects the economic impact on covered entities, including 
small businesses, to be minimal. EPA requested additional information 
during

[[Page 68756]]

the public notice of the draft permit and updated the analysis as 
appropriate for the final permit. A copy of EPA's economic analysis, 
titled, ``Economic Analysis of the Pesticide General Permit (PGP) for 
Point Source Discharges from the Application of Pesticides'' is 
available in the docket for this permit. The economic impact analysis 
indicates that the PGP will cost approximately $10.0 million dollars 
annually for the 35,200 operators in the areas for which EPA is the 
permitting authority. Knowing that most applicators and decision-makers 
are small businesses, EPA conducted a small entity economic analysis. 
Based on available data, this permit will not have a significant 
economic impact on a substantial number of small entities. The economic 
impact analysis is included in the administrative record for this 
permit.

V. Executive Orders 12866 and 13563

    Under Executive Order (EO) 12866 (58 FR 51735 (October 4, 1993)) 
this action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011) and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: October 31, 2011.
H. Curtis Spalding,
Regional Administrator, EPA, Region 1.

    Dated: October 31, 2011.
Ariel Iglesias,
Deputy Director, Division of Environmental Planning and Protection, 
EPA Region 2.

    Dated: October 31, 2011.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA, 
Region 2.

    Dated: October 31, 2011.
Jon M. Capacasa,
Director, Water Division, EPA Region 3.

    Dated: October 31, 2011.
Gail Mitchell,
Acting Director, Water Protection Division, EPA, Region 4.

    Dated: October 31, 2011.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.

    Dated: October 31, 2011.
William K. Honker,
Acting Director, Water Quality Protection Division, EPA Region 6.

    Dated: October 31, 2011.
Karen A. Flournoy,
Acting Director, Water, Wetlands, and Pesticides Division, EPA 
Region 7.

    Dated: October 31, 2011.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships and 
Regulatory Assistance, EPA Region 8.

    Dated: October 31, 2011.
Alexis Strauss,
Director, Water Division, EPA Region 9.

    Dated: October 31, 2011.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2011-28770 Filed 11-4-11; 8:45 am]
BILLING CODE 6560-50-P