NPDES Pesticide General Permit

NPDES Pesticide General Permit Compliance Tools

The U.S. Environmental Protection Agency (EPA) published its final 2016 Pesticide NPDES General Permit (PGP) on November 1, 2016. This update replaces the 2011 PGP that expired on October 31, 2016. The PGP requirements, scope, and applicability remain largely unchanged from those in the 2011 PGP. The 2016 PGP updates are: 
  • New electronic reporting requirements to be consistent with EPA's Electronic Reporting Rule; and
  • An updated the definition of “National Marine Fisheries Service (NMFS) Listed Resources of Concern” to include additional species as a result of Endangered Species Act consultation between EPA and NMFS. 
NAAA is in the process of updating its PGP-related web materials, including its comprehensive overview of the PGP detailing the impacts of the permit on aerial applicators. The Association has developed a number of documents bulleted below to aid aerial applicators in complying with the permits.

Please use the following links to help you understand the state and federal NPDES PGP (**indicates an update is forthcoming): Coverage by EPA’s 2016 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. As part of the 2016 update, all reporting, including NOIs, 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 2016 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 2016 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 WOTUS Rule 

In September 2019 EPA Administrator Wheeler announced that the Trump Administration had officially repealed the 2015 WOTUS rule.  This action was completed on October 22, 2019, when EPA and the Corps published a final rule to repeal the 2015 WOTUS, amending certain requirements and restoring the regulatory text that existed prior to the 2015 Obama rule. This new final rule became effective on December 23, 2019.  This was followed by the January 23, 2020 announcement by the EPA and the Army Corps of Engineers where the Trump Administration announced the new WOTUS definitions which captured these improvements to the 2015 rule.

The new definition of federally protected water bodies is far narrower than the 2015 Obama administration rule which dramatically expanded the reach of federal jurisdiction over rivers, streams and wetlands and in turn the scope of waters where NPDES permitting applies, including aerial application of pesticides.
 
The final rule creates four categories of federal regulated waters:
  • The territorial seas and traditional navigable waters
  • Perennial & intermittent tributaries to those waters
  • Certain lakes, ponds and impoundments
  • Wetlands adjacent to traditional waters
Exclusions from the new WOTUS definition:
  • Features that contain water in direct response to rainfall
  • Groundwater
  • Ditches that are not traditional navigable waters, tributaries or in adjacent wetlands
  • Prior converted cropland
  • Artificially irrigated areas that would revert to upland if artificial irrigation ceases
  • Artificial lakes and ponds that are not jurisdictional impoundments in upland or non-jurisdictional waters
  • Groundwater recharge, water reuse and wastewater recycling structuresin upland or non-jurisdictional waters
Environmental groups are expected to challenge the final rule in court; meanwhile, the provisions of the new rule are in effect, and NAAA will continue to closely monitor any further developments.

 
Updated February 2020

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.