R317-8-9. Pesticide Discharge Permit

9.1 APPLICABILITY.

(1) This section applies to qualified groups of operators who discharge on or near surface waters of the State from the application of (1) biological pesticides or (2) chemical pesticides (hereinafter collectively "pesticides"), when the pesticide application is for one of the following pesticide use patterns:

(a) Mosquito and Other Insect Pests - to control public health/nuisance and other insect pests that may be present on or near standing or flowing surface water. Public health/nuisance and other insect pests in this use category include but are not limited to mosquitoes and black flies.

(b) Weed and Algae Control - to control invasive or other nuisance weeds and algae in water and at water's edge, including irrigation ditches and/or irrigation canals.

(c) Aquatic Nuisance Animal Control - to control invasive or other nuisance animals in water and at water's edge. Aquatic nuisance animals in this use category include, but are not limited to fish, lampreys, and mollusks.

(d) 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.

(2) Qualified Operator Groups. Certain types of entities (operators), engaged in the above pesticide use patterns, will be required to submit a NOI and obtain coverage under a Pesticide General Permit (PGP) as detailed below:

Operator Group 1 - All Operators involved with any discharges to Category 1 (R317-2-12) waters of the State. All operators involved in the discharge of pesticides on or near surface waters of State, which have been determined by the Water Quality Board to be Category 1 waters of the State must submit a NOI to obtain coverage under the PGP. The NOI must detail each area and watershed where a discharge is to occur. Only pesticide applications which are made to restore or maintain water quality or to protect public health or the environment would be covered under the PGP for discharges on or near Category 1 surface waters of the State.

Operator Group 2 - All Government or Quasi-Governmental Agencies or Special Service Districts. All government agency operators (federal, state, county or local agencies and special service districts) involved in the discharge of pesticides under the conditions described above, as a primary purpose or as a significant activity in their operations, must submit a NOI describing each area and watershed where a discharge is to occur to obtain PGP coverage regardless of the size of the area to be treated.

Operator Group 3 - Other Operators. Other operators engaged in the discharge of pesticides for the conditions described above as a primary purpose or as a significant activity in their operations, like private pest control companies, water supply or canal companies or other large operators whose discharges exceed the treatment area thresholds detailed in Table 2 below must apply for a NOI to obtain coverage under the PGP as detailed in Table 1 below.

Operator Group 4 - Operators involved in a "Declared Pest Emergency Situation". All operators that otherwise aren't required to obtain a NOI, but become involved in a "declared pest emergency situation", as defined below, and will exceed any of the treatment area thresholds in Table 2 must submit a NOI to obtain PGP coverage as detailed in Table 1 below.

9.2 DEFINITIONS. The following definitions specifically pertain to aspects of pesticide discharge permitting in the UPDES program and should be used in conjunction with the definitions shown in R317-1-1 and R317-8-1.5.

(1) "Biological Pesticides" (also called biopesticides) means microbial pesticides, biochemical pesticides and plant-incorporated protectants (PIP). Microbial pesticide means a microbial agent intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or dessicant, that (a) is a eucaryotic microorganism including, but not limited to, protozoa, algae, and fungi; (b) is a procaryotic microorganism, including, but not limited to, Eubacteria and Archaebacteria; or (c) is a parasitically replicating microscopic element, including but not limited to, viruses (40 CFR 158.2100(b)).

(2) "Biochemical pesticide" means a pesticide that (a) is a naturally-occurring substance or structurally-similar and functionally identical to a naturally-occurring substance; (b) has a history of exposure to humans and the environment demonstrating minimal toxicity, or in the case of a synthetically-derived biochemical pesticide, is equivalent to a naturally-occurring substance that has such a history; and (c) Has a non-toxic mode of action to the target pest(s)(40 CFR 158.2000(a)(1)). Plant-incorporated protectant means a pesticidal substance that is intended to be produced and used in a living plant, or in the production thereof, and the genetic material necessary for production of such a pesticidal substance. It also includes any inert ingredient contained in the plant, or production thereof (40 CFR 174.3).

(3) "Chemical Pesticides" means all pesticides not otherwise classified as biological pesticides.

(4) "Declared Pest Emergency Situation" means an event defined by a public declaration by a federal agency, state, or local government of a pest problem determined to require control through application of a pesticide beginning less than ten days after identification of the need for pest control. This public declaration may be based on a; significant risk to human health; significant economic loss; or significant risk to Endangered species, Threatened species, Beneficial organisms, or, the environment.

(5) "NOI" means "Notice of Intent", the formal document submitted by an operator to the Division of Water Quality (DWQ) to request coverage under the Pesticide General Permit.

(6) "Operator" means any entity involved in the application of a pesticide which may result in a discharge to waters of the State that meets either or both of the following two criteria:

(a) The entity has control over the financing for, or the decision to perform pesticide applications that result in discharges, including the ability to modify those decisions or;

(b) The entity has day-to-day control of, or performs activities that are necessary to ensure compliance with the permit (e.g., they are authorized to direct workers to carry out activities required by the permit or perform such activities themselves).

(7) "surface waters of the State" means waterbodies, waterways, streams, lakes or rivers that contain standing or flowing water at the time of pesticide application.

(8) "Treatment Area" means the entire area, whether over land or water, where the pesticide application is intended to provide pesticidal benefits or may have an environmental impact. In some instances, the treatment area will be larger than the area where pesticides are actually applied.

9.3 ADMINISTRATIVE REQUIREMENTS.

(1) All operators who are included in the use patterns specified in R317-8-9.1, and discharge to active surface waters of the State as a result of the application of a pesticide must be covered by a UPDES permit, beginning October 31, 2011, by submitting a NOI to obtain coverage under the Pesticide General Permit (PGP). In the event that a discharge occurs prior to submitting a NOI, you must comply with all other requirements of the PGP immediately. All operators will automatically be covered under the PGP for the first five-year permit term of October 31, 2011 to October 30, 2016 if they submit a NOI by February 15, 2012. To obtain PGP coverage for the second and all succeeding PGP five-year terms, all operators must submit a NOI prior to the expiration date (October 30) of the PGP every five years. Each NOI submission will secure permit coverage for the full five-year term of the PGP.

(2) New, qualified operators, who require PGP coverage after February 15, 2012 must submit a NOI in accordance with Table 1 below. The NOI will secure PGP coverage for the remainder of the five-year term of the PGP in effect at that time. For continued PGP coverage during the next five-year permit cycle, a new NOI must be submitted before the expiration of the present PGP, as detailed above.

Table 1. Discharge Authorization Date (a/)

Category NOI Submittal Discharge Authorization

                     Deadline Date

Operators who know At least 10 days No earlier than 10 days

or should have rea- prior to after the complete and

sonably known, prior commencement of accurate NOI is

to commencement of discharge mailed and

discharge, that they postmarked.

will exceed an annual

treatment area thre-

shold identified in

R317-8-9.3 (4).

Operators who do not At least 10 days Original authorization

know or would have prior to exceed- terminates when annual

reasonably not known ing an annual treatment area thresh-

until after commen- treatment area hold is exceeded. Op-

cement of discharge, threshold. erator is reauthor-

that they will ex- ized no earlier th-

ceed an annual tr- an 10 days after

eatment area thr- complete and accurate

eshold identified NOI is mailed

in R317-8-9.3(4). and postmarked.

Operators commenc- No later than 30 Immediately, for

ing discharge in days after com- activities cond-

response to a dec- mencement of ucted in response

lared pest emerg- discharge. to a declared pest

ency situation. emergency situation.

a/ In the event that a discharge occurs prior to your

submitting a NOI, you must comply with all other requirements

of the PGP immediately.

(3) PGP Coverage Termination. PGP coverage may be terminated by non-submission of a NOI at the end of the present PGP five-year term, or by submission of a signed Notice of Termination (NOT) form to the DWQ.

(4) Annual Treatment Area Thresholds.

Table 2. Annual Treatment Area Thresholds

Rule Pesticide Use Class Annual Threshold

Section

R317-8- Mosquitoes and Other 6,400 acres of

9.1(1)(a) Insect Pests Treatment Area

R317-8- Weed and Algae Control

9.1(1)(b) -In Water 80 acres of treatment area a/

           -At Water's Edge 100 linear miles of treatment

                                     area at water's edge b/

R317-8- Aquatic Nuisance Animal Control

9.1(1)(c) -In Water 80 acres of treatment area a/

           -At Water's Edge 100 linear miles of treatment

                                     area at water's edge b/

R317-8- Forest Canopy Pest 6,400 acres of treatment area

9.1(1)(d) Control

a/ Calculations should include the area of the applications

made to active surface waters of the State at the time of

pesticide application. For calculating annual treatment area

totals, 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.

b/ Calculations should include the linear extent of the

application made at water's edge adjacent to active surface

waters of the State and at the time of pesticide application.

For calculating annual treatment totals, count each pesticide

application activity and each side of a linear water body as a

separate activity or area. For example, treating both sides

of a ten mile ditch is equal to twenty miles of water treatment

area.

(5) All applicators or operators, whether or not falling into the use categories, or required to obtain PGP coverage, or whether or not meeting the minimum annual treatment area thresholds shown in R317-8-9.3(4) must conform to the Technology Based Effluent limitations in the PGP and to all applicable rules and regulations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The permittee is expected to familiarize himself with the PGP and conform to its requirements, if he discharges any pesticides prior to obtaining a NOI. After February 15, 2012 the permittee is authorized to discharge under the terms and conditions of the PGP only with submission of a completed electronic NOI in accordance with Table 1 above.

(6) Based on a review of the NOI or other information, the DWQ may delay authorization to discharge under the PGP or may determine that additional technology-based and/or water quality-based effluent limitations are necessary; or may deny coverage under this PGP and require submission of an application for an individual UPDES permit in accordance with this rule. If the Director determines an individual UPDES permit is required, that permitting process will proceed independently.