Aquatic Laws, Aquatic Permits, MPDES, 308’s …what Pesticide Applicators Need to Know

MT Department of Environmental Quality(DEQ)

Water Protection BureauFebruary 12, 2014

Christine Weaver

Basic Premise:

Unlawful to discharge to state waters

without a valid wastewater discharge permit

Wastewater Discharge Permits

MT DEQ Water Protection Bureau is the responsible agency in Montana, except EPA has jurisdiction within Indian Reservations.

Program is called the Montana Pollutant Discharge Elimination System (MPDES)

Some exemptions…

History of Pesticide Permitting

FIFRA was historically the only national pesticide regulation.

EPA did not believe application of pesticides to water was regulated as discharge of a pollutant.

Federal Court January 2009 decision - pesticides discharged to water are pollutants that require a wastewater discharge permit.

History of Pesticide Permitting

Court Decision means: wastewater discharge permits are required for all biological pesticide applications, and chemical pesticide applications that leave a residue in water.

Became effectiveNovember 1, 2011

As of November 1, 2011 - Illegal to apply pesticides to water without a

wastewater discharge permit. Federal – EPA’s Pesticide General Permit

(PGP), e.g. within Indian Reservations Delegated States –In Montana, DEQ is

responsible for PGP. 

Montana Department of Agriculture is not involved in the PGP – MDA retains existing pesticide regulatory authority.

How has pesticide discharge been permitted in Montana?

State History - 308 Authorization

Montana’s 308 Authorizationprogram existed since 1993.

308 Authorizations allowed‘temporary exceedence’ ofwater quality standards forapplication of pesticides.

State law 75-5-308, MCA stillon the books – but MT PGP replaced the 308 program in 2011.

What is the PGP? PGP = Wastewater discharge permit

Regulates pesticide application to surface waters

Montana’s PGP developed in conformance with national requirements.

Responsible party must submit request (NOI) to be covered under the General Permit.

“Insurance” Protects against citizen lawsuits

MT PGP – Who is subject?

Anyone that discharges any pesticide into or over “state surface waters” in Montana (no threshold for applicability). Exception: EPA regulates within boundaries of Indian lands, through the national PGP

Responsible party = “owner/operator”

State Waters“State waters” means a body of water, irrigation system, or drainage system…The term does not apply to:

(i) ponds or lagoons used solely for treating, transporting, or impounding pollutants; or

(ii) irrigation waters or land application disposal waters when the waters are used up … and the waters are not returned to state waters.

PGP exemptions & exceptions …

Do not need to apply for coverage under PGP if pesticide application is: Not to state water: wastewater lagoons and non-

returning irrigation canals are not regulated by DEQ.

Not a point discharge: Storm water discharge Spray drift Applications made “near” (but NOT in or over) state

surface water

DEQ will not authorize the discharge of a pesticide that is not labeled for use in water under FIFRA

Owner/Operator…“…means a person who owns, leases, operates, controls, or supervises a point source.

For the MT PGP, this could include: Entity with control over the financing or

decision to perform pesticide applications, (i.e., county weed control district, BLM); or

Entity with day-to-day control (i.e., pesticide applicators).

Requesting PGP Coverage Decide if you are subject:

Plan to apply pesticide to state water? Are owner/operator?

Complete Notice of Intent (NOI) for coverage under the General Permit

NOI classifications Will the pesticide application occur in

one county or multiple counties? What type(s) of pesticide use patterns

and what is the total annual acreage that you intend to treat for each?

Tier I (no threshold) vs. Tier II

MT PGP Tier II Annual Thresholds

# Pesticide Use Pattern Treatment Area

Annual Threshold

1 Piscicides and Other Nuisance Animals (i.e. zebra mussels)

10 acres

2 Weeds and Algae 100 acres

3 Aerial Pest Control (i.e. Forest Canopy)

1000 acres

4. Mosquito and Other Flying Insect Pests 4a. Larvae chemical control 100 acres 4b. Chemical adulticide 1000 acres 4c. Biological control 6,400 acres

5. Research & Development 10 acres 6 Other not classified 1000 acres

Threshold Area Calculations

Include:

(1) state surface waters that contain water at the time of pesticide application, and

(2) conveyances with a hydrologic surface connection to state surface water at the time of pesticide application.

Count each pesticide application activity as a separate activity. For example, applying pesticides twice a year to a ten acre site should be counted as twenty acres of treatment area.

MT PGP Program –

General Requirements Submit fee

Submit complete Notice of Intent (NOI) Form

Comply with PGP

“New Permit” Fee (application fee + first annual):

Less than Annual Threshold (Tier I) Single-County $50 Multi-County $100

Greater than Annual Threshold (Tier II) Single-County $500 Multi-County $1200

Notice of Intent (NOI) Package

Real-time authorization (authorized upon DEQ’s receipt of complete NOI package).

DEQ will send letter of acknowledgement to all applicants, including NOI #MTG870xxx.

Authorized for five years/General Permit renewal unless terminated (Form NOT). Current General Permit expires October 31, 2016

NOI Certification

A principal officer for the designated owner/operator must certify the NOI.

Certification attests to accuracy & completeness of NOI, as well as compliance with PGP.

MT PGP Requirements

Remember…Certification of the NOI attests to compliance with the MT PGP!

What are you agreeing to?

Requirements for Tier I vs. Tier IITier I – general requirements for all

owners/operators subject to PGP.

Tier II – includes above, PLUS additional regulatory requirements for “over threshold” (larger) owner/operators.

Tier I Effluent Limits

Apply pesticides within labeled rates and/or in accordance with pesticide use directions under FIFRA and other state pesticide requirements.

Tier I Monitoring

Document the rationale for determining the type & amount of pesticide used

Satisfied by having the pesticide label available.

Tier I Reporting

Adverse incident reporting required within 24-hrs & follow-up written report within 5 days of becoming aware of an adverse incident.

Adverse incident = unusual or unexpected effects on nontarget organisms.

Tier I Recordkeeping

Records to be maintained: Copy/access to MT PGP NOI Copy DEQ Authorization Letter

MAINTAIN RECORDS FOR 3 YEARS

Tier II (Greater than Threshold)

Additional requirements for larger owner/ operators: Pesticide management plan Maintenance Calibration (and

recordkeeping) Annual Report (AR-3)

Tier II – Special Condition: Pesticide Discharge

Management Plan (PDMP) PDMP must be reviewed at least annually

and updated as needed.

May reference existing documents such as Integrated Pest Management (IPM) Plans and weed control plans as appropriate.

Tier II Effluent Limits Ensure pesticide

application equipment is maintained in proper operating condition by inspecting, cleaning and repairing such equipment on a regular basis.

Applicant determines & documents what maintenance is required.

Tier II Effluent Limits

Ensure pesticide application equipment is calibrated in order to have effective pesticide application and pest control by adhering to any manufacturer’s conditions and industry practices.

Applicant determines what manufacturer’s conditions and industry practices apply to their equipment and maintains calibration records.

Tier II Monitoring Conduct appropriate visual monitoring:

spot checks for adverse incidents, such as fish kills or distressed macro-invertebrates

assessments during pesticide application when feasible

post-application assessment for efficacy if normally performed.

Tier II Reporting

Tier II applicants must submit an annual report:

Form AR-3 - due to DEQ each year by January 28th

Tier II RecordkeepingIn addition to Tier I basic records, Tier II applicants must also maintain: PDMP, including updates Pesticide application information Copies of or access to documentation of equipment

calibration records Post-application monitoring including any unusual

or unexpected effects identified to non-target organisms

MAINTAIN RECORDS FOR 3 YEARS

By November 1, 2016…

DEQ is responsible for renewing the PGP.

Each owner/operator is responsible for submitting updated NOI prior to permit expiration date (unless authorization termination already requested through Notice of Termination (NOT) form).

MT PGP

Website to keep current information @ http://deq.mt.gov/wqinfo/mpdes/pesticides.mcpx

Contact :

Christine Weaver at 406-444-3927 or email cweaver@mt.gov

Jeff Ryan at 406-444-4626 or email jeryan@mt.gov