Frequently asked questions about the Pesticide NPDES permit

Note: to see the answer, click on the question below.

A: The National Pollutant Discharge Elimination System (NPDES) is a federal permitting program under the authority of the Clean Water Act (CWA) that establishes controls on point source discharges of pollutants to waters of the United States. Point sources are defined as discrete conveyances including but not limited to any pipe, ditch, channel, or conduit from which pollutants are or may be discharged. In 1974, the Minnesota Pollution Control Agency was given authorization from EPA to issue NPDES permits. Therefore, MPCA is the NPDES permitting authority in Minnesota. MPCA has a responsibility to protect waters of the state under Minn. Stat. § 115.03 and is therefore regulating and permitting discharges to waters of the state.

A: The requirement to obtain NPDES permits for point source discharges from pesticide applications to waters of the state stems from a recent decision by the Sixth Circuit Court of Appeals. In its ruling on National Cotton Council, et al. v. EPA the Court vacated EPA’s 2006 rule that said NPDES permits were not required for applications of pesticides to, over or near U.S. waters when in compliance with the FIFRA label. Thus, discharges to waters of the U.S. from the application of pesticides will require NPDES permits when the court’s mandate takes effect beginning on April 10, 2011.

A: No. A pesticide user must comply with all applicable Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements contained in pesticide product labels. The MPCA pesticide permits, when issued, will include additional requirements that are consistent with pesticide product labels (the permit will not override any existing FIFRA labeling requirements).

A: MPCA’s Pesticide Permits authorizes discharges to waters of the state from the application of (1) biological pesticides, and (2) chemical pesticides that leave a residue for the following pesticide Use Patterns: Mosquitoes and Other Flying Insect Pests, Forest Canopy Pests, Aquatic Nuisance Animals, and Vegetative Pests and Algae.

A: Any Use Patterns not covered by this proposed draft permit would need to obtain coverage under an individual permit or alternative general permit if they involve pesticide applications that result in point source discharges to waters of the state.

A: Yes. Because the Court did not define the term “near” in the context of pesticide discharges, both EPA and MPCA interprets this term to refer to the unavoidable discharge to waters of the state in order to target pests in close proximity to water. The MPCA is relying on Permittees to determine if the discharge to waters is “unavoidable”. If so, a permit is required. If the Permittee determines the discharge is “avoidable”, then he or she must avoid the discharge to a water of the state and no permit will be required.

A: If you determine that a discharge in unavoidable, either because of slope, distance, or some other variable, then a permit is needed. If you determine the discharge is avoidable, then avoid the discharge and a permit is not needed. If in doubt, follow the requirements of the permit.

A: Individuals, groups, units of government and other entities that discharge pesticides under the permit are considered “Operators. “Operator” is defined as any entity associated with the application of pesticides which results in a discharge to waters of the state that meets either of the following two criteria: (a) any entity who performs the application of a pesticide or who has day-to-day control of the application (i.e., they are authorized to direct workers to carry out those activities); or (b) any entity with control over the decision to perform pesticide applications including the ability to modify those decisions. Operators identified in (a) above are referred to in this permit as “Applicators” while Operators identified in (b) are referred to in this permit as “Decision-makers.” As defined, more than one Operator may be responsible for complying with this permit for any single discharge from the application of pesticides. For purposes of this permit, all Operators are defined as either an Applicator, a Decision-maker, or both. When an Operator is both an Applicator and a Decision-maker, the Operator must comply with ALL requirements imposed on both Applicators and Decision-makers. Otherwise, the permit specifies whether the requirements are only for the Decision-maker or only the Applicator.

A: An Applicator is defined as any Operator who performs the application of a pesticide or who has day-to-day control of the application (i.e., they are authorized to direct workers to carry out those activities.

A: A Decision-maker is defined as any Operator with control over the decision to perform pesticide applications, including the ability to modify those decisions.

A: An Operator who discharges a pesticide to a water of the state is also considered the "Permittee." This means anyone who performs the activity, regardless if they are required to submit a Notice of Intent, is considered a Permittee. Additionally, these general permits provide for automatic coverage (i.e., without submission of an NOI) provided certain eligibility criteria are met.

A: This general permit is different from other general permits administered by MPCA. Not all Permittees are required to submit a Notice of Intent, or NOI. Each Use Pattern has a different “Threshold” that if exceeded, requires submittal of a NOI and an application fee. Coverage is for the Decision-maker who submitted the NOI as well as any employees, contractors, subcontractors, commercial/for-hire applicators or other agents. Applicators that are not also Decision-makers do not need to submit a NOI.

A: As explained above, MPCA is not requiring Applicators to submit a NOI unless they are also Decision-makers. Coverage is for the Operator, or the entity that makes the decision to perform the pesticide application. Many Applicators will work under permit coverage obtained by a ‘Decision-maker’. The permit will specify if a requirement must be met by an Applicator. For example, the Applicator is required to maintain equipment by calibration and cleaning and assess weather conditions in the current draft permit

A: No. This permit covers insect pests that live in the forest canopy. If controlling vegetation via the air, the ‘Vegetative Pests & Algae Control Permit’ would apply. Treatment for plants in areas not in waters of the state does not require NPDES permit coverage.

A: A Threshold is the level under which a NOI does not need to be submitted. Permittees below the Threshold are automatically covered under the permit and must comply with the basic permit requirements. If above the designated Threshold, the Permittee must submit a NOI and application fee. These Permittees must also meet additional permit requirements, such as consideration of Pest Management Measures (PMM), creation of a Pesticide Discharge Management Plan, and submittal of an Annual Report.

A: If you are a federal or state governmental entity and you control mosquitoes for public health, nuisance control ,and animal welfare, you must submit a NOI. If you are a local governmental unit (city, county, township, etc), with the responsibility to control mosquitoes for public health, nuisance control and animal welfare and treat with adulticides a pest management area of 6400 acres (10 square miles) or greater, you must submit a NOI. This is not cumulative. This Threshold is not based on what is actually applied and where; instead, it is based on the area in which you are controlling the pest, or “pest management area”. The pest management area includes both land and water. For example, if you are a city that is responsible for pest control within the city limits, than the ‘pest management area’ consists of the all the land and water within the city limits. If this area is greater than 6400 acres, your city must submit an NOI and meet additional permit requirements. MPCA set the Thresholds this way so Decision-makers could determine immediately whether they needed to submit a NOI and meet further permit requirements and it does not fluctuate based on external factors (rainfall, temperature, etc).

If you are a local governmental unit with the responsibility to control other flying insect pests (such as black flies) for public health, nuisance control and animal welfare and apply greater than 20 gallons of pesticide or more in a calendar year, you must submit a NOI.

A: The Threshold for controlling forest canopy pests is any Decision-maker who controls a treatment area of 6400 acres (10 square miles) or more. Unlike Mosquitoes &Other Flying Insect Pests, this Threshold considers the “treatment area”, which is the area of water where the pesticide is intended to provide pesticidal benefits. This is a cumulative Threshold and based on a calendar year total.

A: The Threshold for aquatic nuisance animal control is 20 acres of treatment area in lakes or 20 linear miles of treatment area in flowing waters. The MPCA assumes that control of nuisance aquatic animals’ means the discharge will be directly to water, and has set Thresholds to reflect this. This is a cumulative Threshold and based on a calendar year total. For example, if you apply pesticides in the spring and fall to an eleven-acre lake in a calendar year, you must submit a NOI because you are above 20 acres of treatment area. In the case of a stream or river, if calculating the treatment area, count each pesticide application activity and each side of a linear water body as a separate activity. For example, if treating both sides of a 10-mile stream, that is considered 20 miles of treatment area. Also, if applying to both sides of a 10-mile steam three times in a calendar year, that would be considered 60 miles. Also, the treatment area is the area where the pesticide application is intended to have pesticidal benefits. For example, when applying to a stream or river, the area downstream that will be impacted by the pesticide should be used in calculating the Threshold.

A: MPCA’s intent when setting the Threshold for vegetative pests and algae was to be as consistent as possible with the Department of Natural Resources’ Aquatic Plant Management program. The Threshold applies to lakes 20 acres or greater. If you wish to treat greater than 15% of vegetative pests in the littoral zone (where the depth of water is 15 feet or less), you have exceeded the Threshold. If controlling the whole lake for algae in a lake 20 acres and greater, you have exceeded the Threshold and must submit a NOI. Control of algae can occur over the whole lake or parts of the lake, such as bays. Regardless of the area that is applied to, if treating a lake 20 acres and greater, you must submit a NOI.

The Threshold for treating vegetative pests and algae in all other waters of the state is 1,200 acres. This includes all other waters of the state not already mentioned. Some examples of ‘waters of the state’ where pesticides discharges will occur are road side ditches, drainage ditches, streams, rivers, wetlands, and other waters in Rights-of-Way. In order to address all pesticide applications throughout the state, the MPCA developed the 1,200 acre calendar year cumulative Threshold. For the purposes of this permit, ‘waters of the state’ do not include curb and gutter. If aerially applying the pesticide, all waters of the state under that area should be added to the “treatment area.” If spot spraying and a discharge to waters of the state is unavoidable, then the area that receives application should be added to the calendar year total to determine if the Threshold is exceeded. This Threshold is cumulative and based on a calendar year total. NOTE: If you are treating an area that is intermittently wet, count it toward the threshold total only when visible or standing water is present. MPCA acknowledges that ‘waters of the state’ is a broad definition. In order to address all pesticide applications throughout the state, the MPCA developed the 1,200 acre calendar year cumulative Threshold.

A: Please see the question above titled “What are the Thresholds for…?” To summarize, Mosquito & Other Flying Insect Pest Control and Forest Canopy Pest Control is not cumulative. It is based on a “pest management area” that does not vary. The remaining permits have some Thresholds that are cumulative over the calendar year. Please see the above question for specifics.

A: Yes. You should calculate the Thresholds using all methods of treatment. If aerially applying the pesticide, all waters of the state under that area should be added to the “treatment area”. If spot spraying and unable to avoid a discharge, then the area that receives application should be added to the calendar year total to determine if the Threshold is exceeded.

A: One entity (the ‘Decision-maker’) doing work under one of the Use Patterns should only need coverage under one permit. If you are a county performing vegetative pest control for parks and county roads, only one permit is required. With that said, the permit requires that all treatment areas be added to determine if the Threshold is exceeded. In the above example, if the county treats 500 acres of wetlands in their parks and 1000 acres of road-side ditches, then the County would need to submit one NOI for coverage under one permit. Activities cannot be divided so as to avoid exceeding the Threshold.

A: Because MPCA intends to issue four Pesticide General Permits, if conducting both mosquito control and vegetative pests control for example, you will need coverage under both permits: Mosquito and Other Flying Insect Pest Control, and Vegetative Pests and Algae Control. However, MPCA is developing an on-line NOI form. Just one payment needs to be submitted for multiple permits.

A: The MPCA is doing its best to have the permit available by the deadline.

If the Pesticide Discharge Permits are not issued by the October 31, 2011 deadline, any point source discharge resulting from the application of pesticides will be in violation of the Clean Water Act (CWA) as of October 31, 2011. If a person making a decision to apply a pesticide is required to have an NPDES permit, but does not have permit coverage for any reason, they could face a difficult choice. Choosing to apply the pesticide from which there is a discharge means the person risks being found in violation of the Clean Water Act and subject to penalties of up to $37,500 a day. Alternatively, an applicator could decide not to apply a pesticide. This decision will have to be weighed against any human health or environmental threats caused by the pest.

A: MS4 communities that perform activities under the Use Patterns will need coverage under the applicable Pesticide General Permit. MPCA’s MS4 Permit does not address the discharge of a pesticide to waters of the state because of the findings of the National Cotton Council, et al. v. EPA court decision. This decision found that the residue from a chemical pesticide or a biological pesticide were both “pollutants”. Also, a point source is described as a “discernable, confined and discrete conveyance” and the courts determined that the pollutants were being discharged from a point source. Also, not all points in the City are covered under the MS4 permit, yet control of pests may occur city-wide and impact these non-permitted points. A similar example would be an industrial site discharges to a MS4 regulated point. That industry must still obtain a NPDES permit from MPCA.