National Pollutant Discharge Elimination System (NPDES) Permitting and Pesticides Jeff Fischer Permits Section Water Resources Division (517) southernsportsmanaquaticsandland.complants.ifas.ufl.edu/node/191

History Pesticides as pollutants Pesticides as pollutants November 27, 2006 CWA Interpretation November 27, 2006 CWA Interpretation 2009 National Cotton Council, et al. v. EPA 2009 National Cotton Council, et al. v. EPA Result - NPDES permits required Result - NPDES permits required EPA response EPA response Ruling reasonable Ruling reasonable No appeal No appeal Grant two year stay of mandate to implement Grant two year stay of mandate to implement Permits in place by April 9, 2011 Permits in place by April 9, 2011

Pesticide Application Categories Mosquito and other flying insect pest control Mosquito and other flying insect pest control Aquatic Nuisance Plant and Algae Control Aquatic Nuisance Plant and Algae Control Aquatic Nuisance Animal control and Fish Reclamation Aquatic Nuisance Animal control and Fish Reclamation Forest Canopy Pest Control Forest Canopy Pest Control

Pesticide Application Categories pubs.usgs.gov camerondavidson.com Outside scope of General Permit Outside scope of General Permit Terrestrial applications for terrestrial purposes Terrestrial applications for terrestrial purposes Off-Target Spray Drift Off-Target Spray Drift Adulticiding – Michigan Adulticiding – Michigan Exempt under CWA Exempt under CWA Ag. Irrigation return flow Ag. Irrigation return flow Storm water runoff Storm water runoff

Permit Development Michigan collaborating with EPA and other Region 5 States Michigan collaborating with EPA and other Region 5 States Stakeholder Process Stakeholder Process Over 30 representative entities invited to participate Over 30 representative entities invited to participate e.g. Farm Bureau, MSU, Environmental Groups (Tip of the Mitt, NWF, etc.), Utilities, County/Township/Municipal associations, Pest control agencies, Drain Commissions, etc. e.g. Farm Bureau, MSU, Environmental Groups (Tip of the Mitt, NWF, etc.), Utilities, County/Township/Municipal associations, Pest control agencies, Drain Commissions, etc. Four Group Meetings: June – Sept. Four Group Meetings: June – Sept. Numerous Sub-workgroup meetings Numerous Sub-workgroup meetings Held to address category specific issues. Held to address category specific issues. Instrumental to successful development of permits Instrumental to successful development of permits

Michigan’s Permitting Approach Separate General Permit for each category Separate General Permit for each category Mosquito and flying insect pest control Mosquito and flying insect pest control Aquatic nuisance weed and algae Aquatic nuisance weed and algae Aquatic nuisance animal Aquatic nuisance animal Forestry canopy pest control Forestry canopy pest control Acknowledge existing programs/requirements Acknowledge existing programs/requirements FIFRA FIFRA Rule 97 certifications Rule 97 certifications Aquatic Nuisance Control – Part 33 Aquatic Nuisance Control – Part 33 Agriculture – Part 83 Agriculture – Part 83 Reporting practices/forms Reporting practices/forms Procedures Procedures

Scope of Permit - Who needs to Apply? Decision-maker person financially responsible, or person applying pesticides where total area of applications exceeds annual threshold Decision-maker and/or person financially responsible, or person applying pesticides where total area of applications exceeds annual threshold Michigan approach Michigan approach One permittee One permittee Preference to applicators Preference to applicators Reduced burden on individuals, small entities Reduced burden on individuals, small entities What if hired for service, but not permittee? What if hired for service, but not permittee? Explanation for division of duties Explanation for division of duties Written agreement between parties Written agreement between parties Pesticide Applications below annual threshold Pesticide Applications below annual threshold Automatic coverage Automatic coverage No application required No application required Reduced permit requirements Reduced permit requirements Discharge limitations - minimize Discharge limitations - minimize Record keeping Record keeping

Annual Treatment Area Thresholds Pesticide Use Annual Threshold Aquatic Nuisance Plant and algae control In Water 20 acres of treatment At Water’s Edge 20 linear Miles of treatment Total area of applications made in, over, or near to: 1) water’s of the state of Michigan, and 2) conveyances with a hydrologic connection to surface waters of the state during the time of pesticide application. To calculate annual treatment area totals: Count each pesticide application as a separate activity. Multiple treatments to the same area are considered as distinct pesticide application events. For example: a 5-acre treatment area that is treated 4 times in one year equals 20 acres of treatment area, and treating both sides of a ten mile ditch is equal to twenty miles of treatment area.

General Permit Requirements General Permit Requirements Components that make up General Permit Components that make up General Permit Discharge Limitations Discharge Limitations Integrated Pest Management Practices Integrated Pest Management Practices Pesticide Discharge Management Plan Pesticide Discharge Management Plan Record Keeping Record Keeping Annual Report Annual Report Corrective Action Corrective Action Adverse Incident Reporting Adverse Incident Reporting Best Management Practices Best Management Practices No numeric limits No numeric limits

Discharge Limitations Minimize pesticide use Minimize pesticide use Equipment maintenance/calibration Equipment maintenance/calibration Spill prevention Spill prevention Registered products Registered products Must have aquatic formulation Must have aquatic formulation Category specific restrictions Category specific restrictions List approved pesticides List approved pesticides

Integrated Pest Management Practices Only required if exceed annual threshold Only required if exceed annual threshold Identify species and contributing factors Identify species and contributing factors Pest action threshold Pest action threshold Pre- and post-application surveillance Pre- and post-application surveillance Select/implement effective pest management Select/implement effective pest management Compliance Compliance Pre-existing plans Pre-existing plans Document implementation Document implementation

Pesticide Discharge Management Plan Only required if exceed annual threshold Only required if exceed annual threshold Deadlines for development Deadlines for development Documentation of limit implementation Documentation of limit implementation Evaluation/selection of control measures Evaluation/selection of control measures Allowance for other procedures or plans Allowance for other procedures or plans Does not contain limitations Does not contain limitations Division of duties – written agreement Division of duties – written agreement Record retention Record retention Plan Modification Plan Modification Corrective action Corrective action Updates – change in activities Updates – change in activities Before next application Before next application

Record Keeping Required for All pesticide applications Required for All pesticide applications Minimal requirements if below threshold Minimal requirements if below threshold Copy of general permit/adverse incident/corrective action Copy of general permit/adverse incident/corrective action Exceed threshold – more comprehensive Exceed threshold – more comprehensive Must update records after each treatment Must update records after each treatment Equipment maintenance/calibration Equipment maintenance/calibration Records may be maintained by applicator Records may be maintained by applicator Must document accordingly Must document accordingly Acknowledge other program requirements Acknowledge other program requirements Utilize existing procedures/documentation from other programs Utilize existing procedures/documentation from other programs Minimize/eliminate duplication Minimize/eliminate duplication Record retention Record retention At least 3 years At least 3 years Available upon request Available upon request

Annual Report Required only if exceed annual threshold Required only if exceed annual threshold Summary of pesticide application activities Summary of pesticide application activities Treatment area Specific Treatment area Specific Due November 30 th each year Due November 30 th each year Only submittal requirement Only submittal requirement Submittal requirements Submittal requirements Can rely upon other documents to fulfill conditions of reporting requirement Can rely upon other documents to fulfill conditions of reporting requirement

Requirement for Individual Permit Pesticide not listed in permit Pesticide not listed in permit Significant contributor to pollution Significant contributor to pollution Outstanding state resource waters Outstanding state resource waters Impaired waters (303(d) list) Impaired waters (303(d) list) Permittee request Permittee request

Permit Application and Forms General Permit Application General Permit Application Utilize existing NPDES application format Utilize existing NPDES application format Create new pesticides Section (VII) Create new pesticides Section (VII) Layout – category specific Layout – category specific Allow information from other applications Allow information from other applications Avoid duplication Avoid duplication Report Forms Report Forms Utilize forms from existing programs Utilize forms from existing programs e.g. ANC Treatment Report Form e.g. ANC Treatment Report Form Modify to comply with NPDES permit Modify to comply with NPDES permit On-line Electronic Format On-line Electronic Format submittal submittal

Compliance Issues Issues Staffing and cost Staffing and cost Number of applications Number of applications Focus Focus Unpermitted activities Unpermitted activities Resource damage Resource damage Existing Program Requirements Existing Program Requirements Adverse Incident Report Adverse Incident Report Corrective Action Corrective Action

General Permit Status Draft General Permits Completed Draft General Permits Completed Public Notice - November 15, 2010 Public Notice - November 15, 2010 EPA – No Objections EPA – No Objections Public Comments Public Comments Approximately 15 received by due date Approximately 15 received by due date Public Hearing Held December 17, 2010 Public Hearing Held December 17, 2010 Small attendance – 4 statements for record Small attendance – 4 statements for record Testament to stakeholder process Testament to stakeholder process

Recent Developments EPA – Postponed permit issuance EPA – Postponed permit issuance Original - December 2010, now mid to late-February Original - December 2010, now mid to late-February Final version will contain revisions Final version will contain revisions Some changes certain, others may or may not occur Some changes certain, others may or may not occur Potential areas of impact Potential areas of impact Terminology Terminology Scope of permit Scope of permit Application submittal Application submittal Thresholds Thresholds Reporting requirements Reporting requirements States not required to adopt all changes, can take own path States not required to adopt all changes, can take own path Impact to Michigan’s GP’s? Impact to Michigan’s GP’s? Delays permit issuance Delays permit issuance Delays document development Delays document development Caused postponement of application training workshop Caused postponement of application training workshop New date will be announced soon Will post on Pesticide Control Website Current registrations will be honored or refunded.

Next Steps Prepare Responsiveness Summary Prepare Responsiveness Summary Continue Public Outreach Efforts Continue Public Outreach Efforts Document Development Document Development Annual Report Annual Report Permit Application Permit Application On-line submittal On-line submittal Reschedule Application Training Workshop Reschedule Application Training Workshop Develop Compliance Procedures Develop Compliance Procedures

Stay tuned…