NPDES Pesticide General Permit

NPDES Pesticide General Permit Compliance Tools

In September 2021, the U.S. Environmental Protection Agency (EPA) reissued its third five-year Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) Pesticide General Permits (PGP) for pesticide applications made into, over or near jurisdictional water bodies.  
The 2021 PGP replaces the permits issued in November 2016 under the same conditions and requirements, and authorizes certain point source discharges from the application of pesticides to the Waters of the U.S.  It is important for NAAA members to review what is involved in this process and the permit requirements. 
NAAA has several important tools to ensure consistency with the 2021-issued PGPs, whether issued by the EPA or any of the 46 state agencies authorized to administer the NPDES program. The PGPs impose additional performance and record-keeping responsibilities and potential legal liabilities on top of those linked to compliance with FIFRA product labels and state pesticide laws. Although compliance with the PGPs can be time-consuming, the alternative is much worse—potential government enforcement, mega fines and/or citizen lawsuits. 
Please use the following links to help you understand the state and federal NPDES PGPs:
Coverage by EPA’s 2021 PGP is automatic now for all that qualify for coverage, however some decision-making entities such as government and larger entities, including some decision-making applicators, must submit a Notice of Intent (NOI) to be covered. Like the 2016 update, for 2021 PGP reporting, including NOIs, you must now be submitted electronically unless a decision-maker is exempted due to physical location in an area identified as under-served for broadband internet access and/or demonstrated computer access limitations. EPA posted web information on reporting using eNOI and a PGP eNOI System User Guide. The PGP applies to the following geographic areas where EPA serves as the NPDES permitting authority: four states (Massachusetts, New Hampshire, New Mexico, and Idaho) and the District of Columbia; all U.S. territories except the U.S. Virgin Islands; federal facilities in Delaware, Vermont, Colorado, and Washington; discharges in Texas that are not under the authority of the Texas Commission on Environmental Quality, including activities associated with oil and gas exploration; and all areas of Indian Country that are not covered by an EPA-approved permitting program (see Appendix A of the Final 2021 PGP for further description). The other 44 states not covered by EPA’s PGP have some form of PGP in place, but they do vary considerably. That means if you have pesticide applications that extend across state borders you may need to comply with much different PGP requirements. Refer to NAAA’s analysis of all States’ NPDES Pesticide General Permits to learn more about state PGPs.
EPA’s published 2021 PGP contains considerations for protection of endangered species that were outlined by the National Marine Fisheries Service (NMFS) in their final Biological Opinion (BiOp). However, EPA has yet to complete consultation with the U.S. Fish & Wildlife Service (FWS). EPA posted updated information on ESA procedures, including an Interactive Mapping Tool to assist with identifying coverage areas that trigger additional ESA-related requirements. 
NAAA is pleased aerial applicators (for-hire contractors that are not also “Decision Makers”) do not have to submit an NOI to EPA for permit coverage, conduct components of integrated pest management, develop a Pesticide Discharge Management Plan, file annual reports, or meet the extra requirements from the NMFS for protecting endangered or threatened species listed under the Endangered Species Act (ESA), or their critical habitat. Those more complex permit compliance requirements are the responsibility of Decisions Makers, such as state and federal agencies, municipalities, natural resource management agencies, and large private organizations directing pest control activities.
Compliance requirements of aerial applicators include the requirement to use only the amount of pesticide and frequency of pesticide application necessary to control the target pest, using equipment and application procedures appropriate for this task. They must also maintain pesticide application equipment in proper operating condition, including calibration, cleaning, and repairing such equipment, and must also prevent leaks, spills and other unintended discharges. Aerial applicators must assess weather conditions in the treatment area to ensure application is consistent with all applicable federal requirements. For-hire applicators must also keep records that document pesticide application equipment maintenance and details of the pesticide application itself (e.g., documentation of equipment calibration; description of each treatment area, including location and size of treatment area and any water bodies present; pesticide use pattern, target pests treated; weather conditions, quantity and name of each pesticide product used including the EPA registration number; application date(s); if visual monitoring was conducted, and if not, why not; and if any unusual or unexpected effects occurred to non-target organisms).
NAAA will continue to work with a coalition of agricultural organizations for a legislative exemption from Clean Water Act NPDES permits, and this effort may be tied to passage of other legislation.
In the meantime, aerial applicators should be aware that they must comply with the EPA or state PGPs in the states where they do business, and may be subject to citizen action suits immediately should they violate either the recordkeeping or performance aspects of the PGP. 

Updated April 2022.

This document is intended for NAAA members’ review only. It is not intended for publication. NAAA requests that should any party desire to publish, distribute or quote any part of this document that they first seek the permission of the Association.