EPA
is
submitting
this
proposed
rule
for
publication
in
the
Federal
Register.
While
we've
taken
steps
to
ensure
the
accuracy
of
this
version
of
the
proposed
rule,
it's
not
the
official
version
for
purposes
of
compliance.
Upon
publication
you
will
be
able
to
obtain
the
official
copy
of
this
notice
at
http://
www.
epa.
gov/
npdes/
agriculture
or
at
the
Federal
Register
Web
site.
2
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
122
[
OW­
2003­
0063;
FRL­
7866­
5]

RIN
2040­
AE72
Application
of
Pesticides
to
Waters
of
the
United
States
in
Compliance
with
FIFRA
AGENCY:
Environmental
Protection
Agency
(
EPA).
3
ACTION:
Proposed
Rulemaking
and
Notice
of
Interpretive
Statement.

SUMMARY:
On
August
13,
2003,
the
Environmental
Protection
Agency
(
EPA)
published
a
notice
in
the
Federal
Register
soliciting
public
comment
on
an
Interim
Statement
and
Guidance
to
address
issues
pertaining
to
coverage
under
the
Clean
Water
Act
(
CWA)
of
pesticides
regulated
under
the
Federal
Insecticide,
Fungicide,
and
Rodenticide
Act
(
FIFRA)
that
are
applied
to
or
over
waters
of
the
United
States.
The
interpretation
addressed
two
sets
of
circumstances
for
which
EPA
has
determined
that
the
application
of
a
pesticide
to
waters
of
the
United
States
consistent
with
all
relevant
requirements
of
FIFRA
does
not
constitute
the
discharge
of
a
pollutant
that
requires
a
National
Pollutant
Discharge
Elimination
System
(
NPDES)
permit
under
the
CWA.
EPA
is
announcing
today
the
interpretive
statement
developed
after
consideration
of
public
comments.
In
this
Notice,
EPA
is
also
proposing
to
revise
the
NPDES
permit
program
regulations
to
incorporate
the
substance
of
the
interpretive
statement.

DATES:
Comments
on
this
action
must
be
received
or
postmarked
on
or
before
midnight
[
insert
date
60
days
from
date
of
publication
in
the
Federal
Register].

ADDRESSES:
Submit
your
comments,
identified
by
Docket
ID
No.
OW­
2003­
0063,
by
one
of
the
following
methods:
4
1)
Federal
eRulemaking
Portal:
http://
www.
regulations.
gov.
Follow
the
on­
line
instructions
for
submitting
comments.

2)
Agency
Website:
http://
www.
epa.
gov/
edocket.
EDOCKET,
EPA's
electronic
public
docket
and
comment
system,
is
EPA's
preferred
method
for
receiving
comments.
Follow
the
on­
line
instructions
for
submitting
comments.

3)
E­
mail:
ow­
docket@
epa.
gov,
Attention
Docket
ID.
No.
OW­
2003­
0063.

4)
Mail:
Send
the
original
and
three
copies
of
your
comments
to:
Water
Docket,
Environmental
Protection
Agency,
Mailcode
4101T,
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20460,
Attention
Docket
ID
No.
OW­
2003­
0063.

5)
Hand
Delivery:
Deliver
your
comments
to:
EPA
Docket
Center,
EPA
West,
Room
B102,
1301
Constitution
Avenue,
NW,
Washington,
DC,
Attention
Docket
ID
No.
OW­
2003­
0063.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation.

Instructions:
Direct
your
comments
to
Docket
ID
No.
OW­
2003­
0063.
EPA's
policy
is
that
all
comments
received
will
be
included
in
the
public
docket
without
change
and
may
be
made
available
online
at
http://
www.
epa.
gov/
edocket,
including
any
personal
information
provided,
unless
the
comment
includes
information
claimed
to
be
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
Do
not
submit
information
that
you
consider
to
be
CBI
or
otherwise
protected
through
EDOCKET,
regulations.
gov,
or
e­
mail.
The
EPA
EDOCKET
and
the
federal
regulations.
gov
websites
are
"
anonymous
access"
systems,
which
means
EPA
will
not
know
your
identity
or
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
If
you
send
an
e­
mail
comment
directly
to
EPA
without
going
through
EDOCKET
or
regulations.
gov,
your
e­
mail
address
will
be
automatically
captured
and
included
as
part
of
the
comment
that
is
placed
in
the
public
docket
and
made
available
on
the
Internet.
If
you
submit
an
electronic
comment,
EPA
recommends
that
you
include
your
name
and
other
contact
information
in
the
body
of
your
comment
and
with
any
disk
or
CD­
ROM
you
submit.
If
EPA
5
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,
EPA
may
not
be
able
to
consider
your
comment.
Electronic
files
should
avoid
the
use
of
special
characters,
any
form
of
encryption,
and
be
free
of
any
defects
or
viruses.
For
additional
information
about
EPA's
public
docket
visit
EDOCKET
on­
line
or
see
the
Federal
Register
of
May
31,
2002
(
67
FR
38102).
For
additional
instructions
on
submitting
comments,
go
to
section
B.
1.
of
the
SUPPLEMENTARY
INFORMATION
section
of
this
document.

Docket:
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,
some
information
is
not
publicly
available,
i.
e.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
in
EDOCKET
or
in
hard
copy
at
the
Water
Docket
in
the
EPA
Docket
Center,
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
Water
Docket
is
(
202)
566­
2426.

FOR
FURTHER
INFORMATION
CONTACT:
For
additional
information
contact
Louis
Eby,
Water
Permits
Division,
Office
of
Wastewater
Management
(
4203M),
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460;
telephone
number:
(
202)
564­
6599,
e­
mail
address:
eby.
louis@
epa.
gov;
or
William
Jordan,
Office
of
Pesticide
Programs,
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460;
telephone
number:
(
703)
305­
1049,
e­
mail
address:
jordan.
william@
epa.
gov.

SUPPLEMENTARY
INFORMATION:
6
I.
General
Information
A.
Does
this
Action
Apply
to
Me?

You
may
be
potentially
affected
by
this
action
if
you
apply
pesticides
to
or
over,
including
near,
water.
Potentially
affected
entities
may
include,
but
are
not
limited
to:

Category
NAICS
Examples
of
Potentially
Affected
Entities
Agriculture
parties
­
General
agricultural
interests,
farmers/
producers,
forestry,
and
irrigation
111
Crop
Production
Producers
of
crops
mainly
for
food
and
fiber
including
farms,
orchards,
groves,
greenhouses,
and
nurseries.

112511
Finfish
Farming
and
Fish
Hatcheries
Producers
of
farm
raised
finfish
(
e.
g.,
catfish,
trout,
goldfish,
tropical
fish,
minnows)
and/
or
hatching
fish
of
any
kind.

112519
Other
Animal
Aquaculture
Producers
engaged
in
farm
raising
animal
aquaculture
(
except
finfish
and
shellfish).
Alligator,
frog,
or
turtle
production
is
included
in
this
industry.

113110
Timber
Tract
Operations
The
operation
of
timber
tracts
for
the
purpose
of
selling
standing
timber.
Category
NAICS
Examples
of
Potentially
Affected
Entities
7
113210
Forest
Nurseries
and
Gathering
of
Forest
Products
Growing
trees
for
reforestation
and/
or
gathering
forest
products,
such
as
gums,
barks,
balsam
needles,
rhizomes,
fibers,
Spanish
moss,
ginseng,
and
truffles.

221310
Water
Supply
for
Irrigation
Operating
irrigation
systems.

Pesticide
parties
(
includes
pesticide
manufacturers,
other
pesticide
users/
interests,
and
consultants)
325320
Pesticide
and
Other
Agricultural
Chemical
Manufacturing
Formulation
and
preparation
of
agricultural
pest
control
chemicals.

Public
health
parties
(
includes
mosquito
or
other
vector
control
districts
and
commercial
applicators
that
service
these)
923120
Administration
of
Public
Health
Programs
Government
establishments
primarily
engaged
in
the
planning,
administration,
and
coordination
of
public
health
programs
and
services,
including
environmental
health
activities.

Resource
management
parties
(
includes
state
departments
of
fish
and
wildlife,
state
departments
of
pesticide
regulation,
state
environmental
agencies,
and
universities)
924110
Administration
of
Air
and
Water
Resource
and
Solid
Waste
Management
Programs
Government
establishments
primarily
engaged
in
the
administration,
regulation,
and
enforcement
of
air
and
water
resource
programs;
the
administration
and
regulation
of
water
and
air
pollution
control
and
prevention
programs;
the
administration
and
regulation
of
flood
control
programs;
the
administration
and
regulation
of
drainage
development
and
water
resource
consumption
programs;
and
coordination
of
these
activities
at
intergovernmental
levels.
Category
NAICS
Examples
of
Potentially
Affected
Entities
8
924120
Administration
of
Conservation
Programs
Government
establishments
primarily
engaged
in
the
administration,
regulation,
supervision
and
control
of
land
use,
including
recreational
areas;
conservation
and
preservation
of
natural
resources;
erosion
control;
geological
survey
program
administration;
weather
forecasting
program
administration;
and
the
administration
and
protection
of
publicly
and
privately
owned
forest
lands.
Government
establishments
responsible
for
planning,
management,
regulation
and
conservation
of
game,
fish,
and
wildlife
populations,
including
wildlife
management
areas
and
field
stations;
and
other
administrative
matters
relating
to
the
protection
of
fish,
game,
and
wildlife
are
included
in
this
industry.

Utility
parties
(
includes
utilities)
221
Utilities
Provide
electric
power,
natural
gas,
steam
supply,
water
supply,
and
sewage
removal
through
a
permanent
infrastructure
of
lines,
mains,
and
pipes.
Category
NAICS
Examples
of
Potentially
Affected
Entities
9
Other
Parties
713910
Golf
courses
and
country
clubs
Golf
course
operators
who
have
ponds
for
irrigation.

This
listing
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
likely
to
be
affected
by
this
action.
Other
types
of
entities
not
listed
could
also
be
affected.
Other
stakeholders
and
members
of
the
public
concerned
about
the
application
of
pesticides
to
and
over,
including
near,
waters
of
the
U.
S.
may
also
have
an
interest
in
this
action.
If
you
have
any
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
the
person
listed
under
FOR
FURTHER
INFORMATION
CONTACT.

B.
1.
Submitting
CBI.
Do
not
submit
this
information
to
EPA
through
EDOCKET,
regulations.
gov
or
e­
mail.
Clearly
mark
the
part
or
all
of
the
information
that
you
claim
to
be
CBI.
For
CBI
information
in
a
disk
or
CD
ROM
that
you
mail
to
EPA,
mark
the
outside
of
the
disk
or
CD
ROM
as
CBI
and
then
identify
electronically
within
the
disk
or
CD
ROM
the
specific
information
that
is
claimed
as
CBI.
In
addition
to
one
complete
version
of
the
comment
that
includes
information
claimed
as
CBI,
a
copy
of
the
comment
that
does
not
contain
the
information
claimed
as
CBI
must
be
submitted
for
inclusion
in
the
public
docket.
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR
part
2.

2.
Tips
for
Preparing
Your
Comments.
When
submitting
comments,
remember
to:
10
i
Identify
the
rulemaking
by
docket
number
and
other
identifying
information
(
subject
heading,
Federal
Register
date
and
page
number).

ii.
Follow
directions
­
The
agency
may
ask
you
to
respond
to
specific
questions
or
organize
comments
by
referencing
a
Code
of
Federal
Regulations
(
CFR)
part
or
section
number.

iii.
Explain
why
you
agree
or
disagree;
suggest
alternatives
and
substitute
language
for
your
requested
changes.

iv.
Describe
any
assumptions
and
provide
any
technical
information
and/
or
data
that
you
used.

v.
If
you
estimate
potential
costs
or
burdens,
explain
how
you
arrived
at
your
estimate
in
sufficient
detail
to
allow
for
it
to
be
reproduced.

vi.
Provide
specific
examples
to
illustrate
your
concerns,
and
suggest
alternatives.

vii.
Explain
your
views
as
clearly
as
possible,
avoiding
the
use
of
profanity
or
personal
threats.

viii.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.

II.
Background
and
Public
Comments
11
EPA
issued
an
Interim
Statement
and
Guidance
addressing
two
circumstances
in
which
the
Agency
interprets
the
CWA
as
not
requiring
NPDES
permits
for
the
application
of
pesticides
to
and
over
waters
of
the
United
States,
because
such
materials
are
not
"
pollutants"
as
that
term
is
defined
in
the
CWA.
The
first
situation
addressed
in
the
Interim
Statement
and
Guidance
was
the
application
of
pesticides
directly
to
waters
of
the
United
States
in
order
to
control
pests
(
for
example,
mosquito
larvae
or
aquatic
weeds
that
are
present
in
the
water).
The
second
situation
was
the
application
of
pesticides
to
control
pests
that
are
present
over
waters
of
the
United
States
that
results
in
a
portion
of
the
pesticide
being
deposited
to
waters
of
the
United
States
(
for
example,
when
pesticides
are
aerially
applied
to
a
forest
canopy
where
waters
of
the
United
States
may
be
present
below
the
canopy
or
when
insecticides
are
applied
for
control
of
adult
mosquitos).
Although
the
Interim
Statement
and
Guidance
was
effective
when
issued,
EPA
provided
public
notice
and
solicited
public
comment.
68
FR
48385;
August
13,
2003.

EPA
received
many
comments
on
the
Interim
Statement
and
Guidance,
including
comments
supporting
EPA's
interpretation
as
well
as
comments
opposing
it.
In
general,
most
commenters
who
supported
EPA's
interpretation
agreed
that
it
was
the
best
interpretation
of
the
CWA's
definition
of
"
pollutant,"
and
that
the
issuance
of
the
Interim
Statement
and
Guidance
would
facilitate
application
of
pesticides
in
a
manner
consistent
with
relevant
FIFRA
requirements
to
serve
important
public
health
purposes.
The
comments
opposing
EPA's
interpretation
disagreed
with
the
Agency's
interpretation
of
the
Act
and
expressed
concerns
about
the
environmental
effects
of
pesticides
applied
to
and
over
waters
of
the
United
States.
EPA
has
considered
the
comments
received
on
the
Interim
Statement
and
will
continue
to
do
so
in
the
context
of
today's
proposed
rulemaking.
The
Agency
will
formally
respond
to
all
public
comments
received
on
the
Interim
Statement
and
during
the
public
comment
period
for
today's
proposed
rule.
Therefore,
it
is
not
necessary
to
resubmit
comments
that
were
previously
submitted
on
the
Interim
Statement
and
Guidance.

While
EPA
will
formally
address
all
the
comments
when
it
promulgates
a
final
regulation,
12
the
Agency
addresses
here
two
issues
raised
by
public
comments.
Some
commenters
expressed
concern
that
the
Agency
was
not
adopting
this
interpretation
through
a
rulemaking
proceeding;
a
subset
of
these
comments
argued
that
failure
to
go
through
rulemaking
violated
the
Administrative
Procedure
Act
(
APA);
other
commenters
urged
EPA
to
undergo
rulemaking
in
order
to
provide
greater
legal
certainty
to
pesticide
applicators.
EPA
disagrees
with
those
commenters
who
contended
that
the
APA
rulemaking
requirements
apply
to
today's
Interpretive
Statement.
The
Interpretive
Statement,
like
the
Interim
Statement
and
Guidance,
is
an
"
interpretative"
rule
under
5
U.
S.
C.
§
553(
b)
since
it
interprets
the
meaning
of
the
term
"
pollutant"
in
section
502(
6)
of
the
CWA
as
applied
to
certain
pesticide
applications.
Therefore,
it
is
exempt
from
notice
and
comment
rulemaking
requirements
under
the
APA.
Consistent
with
its
status,
the
document
is
entitled
an
"
Interpretive
Statement."

EPA
agrees,
however,
with
those
commenters
who
emphasized
the
importance
of
providing
clarity
and
greater
legal
certainty
to
parties
who
apply
pesticides
under
the
circumstances
addressed
by
the
Interim
Statement
and
Guidance.
Therefore,
EPA
is
proposing
to
codify
the
substance
of
today's
Interpretive
Statement
into
EPA's
NPDES
regulations.

Second,
several
other
commenters
argued
that
EPA's
interpretation
in
the
Interim
Statement
and
Guidance
is
a
significant
departure
from
previous
statements
in
amicus
briefs
the
Agency
filed
in
Headwaters,
Inc.,
v.
Talent
Irrigation
District,
243
F.
3d
526
(
9th
Cir.
2001),
and
in
Altman
v.
Town
of
Amherst,
47
Fed.
Appx.
62
(
2d
Cir.
2002).
EPA
believes
that,
in
some
respects,
these
commenters
have
incorrectly
characterized
past
government
positions
in
these
cases,
consequently
overstating
the
differences
between
the
Interpretive
Statement
and
the
positions
in
those
cases.
Neither
the
CWA
itself
nor
EPA's
regulations
address
the
question
of
whether
pesticides
are
"
chemical
wastes"
or
"
biological
materials"
under
section
502(
6)
of
the
Act
when
used
for
their
intended
purpose
and
in
conformity
with
relevant
requirements
of
FIFRA.
Moreover,
EPA
does
not
have
a
longstanding
interpretation
of
the
statute
or
its
regulations
that
resolves
this
issue.
Nonetheless,
EPA's
position
on
these
issues
has
evolved
since
the
briefs
were
filed
in
these
cases.
EPA
believes
that
its
revised
thinking
best
accords
with
Congressional
intent
reflected
in
the
language,
structure
and
purposes
of
the
CWA.
A
more
detailed
explanation
is
contained
in
a
January
24,
2005,
memorandum
from
EPA's
General
Counsel
titled
"
Analysis
of
Previous
Federal
Government
Statements
on
Application
of
Pesticides
to
Waters
of
the
United
13
States
in
Compliance
with
FIFRA,"
which
is
available
in
the
docket
for
this
rule
at
http://
www.
epa.
gov/
edocket.

III.
Summary
of
Revisions
to
Interpretive
Statement
EPA
is
issuing
an
Interpretive
Statement
that
is
substantially
similar
to
the
Interim
Statement
and
Guidance.
The
Interpretive
Statement
contains
the
following
changes
from
the
Interim
Statement
and
Guidance:

°
EPA
has
modified
the
description
of
the
first
circumstance
addressed
in
the
statement
to
include
other
pests
in
addition
to
mosquito
larvae
and
aquatic
weeds,
since
pesticide
applications
directly
to
waters
of
the
United
States
may
target
organisms
other
than
the
two
identified
in
the
Interim
Statement
and
Guidance;

°
EPA
has
modified
the
description
of
the
second
circumstance
addressed
in
the
statement
to
refer
to
pesticides
(
rather
than
insecticides)
that
are
applied
over
water,
and
to
refer
to
14
other
pests
in
addition
to
mosquitos,
since
pesticide
applications
to
control
pests
present
over
waters
of
the
United
States
may
target
organisms
other
than
mosquitos;

°
EPA
has
modified
the
second
circumstance
to
clarify
that
the
reference
to
pests
"
over
water"
includes
pests
near
water,
since
organisms
targeted
by
pesticides
covered
by
the
Interpretive
Statement
are
often
found
near
as
well
as
in,
on
or
above
waters;

°
EPA
has
clarified
that
"
relevant
requirements"
under
FIFRA
for
purposes
of
this
document
refers
to
requirements
relevant
to
protection
of
water
quality;
and
°
Today's
statement
only
specifically
analyzes
the
applicability
of
NPDES
permitting
requirements
to
pesticide
applications
in
the
two
circumstances
identified
therein.
The
Interpretive
Statement
now
references,
however,
several
other
interpretive
statements
previously
issued
by
the
Agency
and
also
notes
that
it
has
been
and
will
continue
to
be
the
operating
approach
of
the
Agency
that
the
application
of
agricultural
and
other
pesticides
in
accordance
with
relevant
FIFRA
requirements
is
not
subject
to
NPDES
permitting
requirements.

The
full
text
of
the
Interpretive
Statement
is
included
below
in
section
VI.

IV.
Summary
of
Proposed
Rule
15
EPA
is
also
proposing
to
revise
the
NPDES
permit
program
regulations
to
incorporate
the
substance
of
the
Interpretive
Statement.
The
proposed
revision
would
add
a
paragraph
to
40
CFR
122.3'
s
list
of
discharges
that
are
excluded
from
NPDES
permit
requirements.
The
new
paragraph
would
exclude
applications
of
pesticides
to
waters
of
the
United
States
consistent
with
all
relevant
requirements
under
FIFRA
in
the
two
circumstances
described
in
the
Interpretive
Statement.
As
is
explained
in
the
Interpretive
Statement,
the
pesticides
are
not
pollutants
under
these
circumstances
and,
therefore,
are
not
discharges
of
pollutants
subject
to
NPDES
permitting
requirements.

EPA
is
soliciting
public
comment
today
on
the
proposed
regulatory
language.
The
Agency
will
formally
respond
to
all
public
comments
received
on
the
Interim
Statement
during
the
comment
period
on
today's
proposed
rule.
Therefore,
it
is
not
necessary
to
resubmit
comments
that
were
previously
submitted
on
the
Interim
Statement
and
Guidance.

V.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
(
58
FR
51735
(
October
4,
1993))
the
Agency
must
determine
whether
the
regulatory
action
is
"
significant"
and
therefore
subject
to
Office
of
Management
and
Budget
(
OMB)
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:
16
(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
tribal
governments
or
communities;

(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;

(
3)
materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

It
has
been
determined
that
this
proposed
rule
is
not
a
"
significant
regulatory
action"
under
the
terms
of
Executive
Order
12866
and,
therefore,
is
not
subject
to
OMB
review.

B.
Paperwork
Reduction
Act
This
proposed
action
would
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
If
promulgated,
it
would
merely
identify
two
circumstances
in
which
the
application
of
a
pesticide
to
waters
of
the
United
States
consistent
with
all
relevant
requirements
under
FIFRA
does
not
constitute
the
discharge
of
a
pollutant
that
requires
a
NPDES
permit
under
the
Clean
Water
Act.

Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
17
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information;
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
Part
9.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
(
RFA),
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.

For
purposes
of
assessing
the
impacts
of
today's
proposed
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
based
on
Small
Business
Administration
(
SBA)
size
standards;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
the
economic
impacts
of
today's
proposed
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Because
EPA
proposes
to
identify
two
circumstances
in
which
the
application
of
a
pesticide
to
waters
of
the
United
States
consistent
with
all
relevant
requirements
under
FIFRA
18
does
not
constitute
the
discharge
of
a
pollutant
that
requires
a
NPDES
permit
under
the
Clean
Water
Act,
this
proposed
action
will
not
impose
any
burden
on
any
small
entity.
We
continue
to
be
interested
in
the
potential
impacts
of
the
proposed
rule
on
small
entities
and
welcome
comments
on
issues
related
to
such
impacts.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
P.
L.
104­
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
tribal
governments
and
the
private
sector.
Under
Section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
Federal
mandates"
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
Section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
Section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
Section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
Section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

EPA
has
determined
that
this
proposed
rule
to
change
an
NPDES
deadline
would
not
contain
a
Federal
mandate
that
may
result
in
expenditures
of
$
100
million
or
more
for
State,
local,
and
tribal
governments,
in
the
aggregate,
or
the
private
sector
in
any
one
year.
The
proposed
rule
would
not
impose
any
additional
costs
to
these
entities.
Thus,
today's
proposed
rule
is
not
subject
to
the
requirements
of
Sections
202
and
205
of
the
UMRA.
For
the
same
reason,
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
Thus,
today's
proposed
rule
is
not
subject
to
the
requirements
19
of
Section
203
of
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."
"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."

This
proposed
rule
does
not
have
federalism
implications.
If
promulgated,
it
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
Thus,
Executive
Order
13132
does
not
apply
to
this
rule.

In
the
spirit
of
Executive
Order
13132,
and
consistent
with
EPA
policy
to
promote
communications
between
EPA
and
State
and
local
governments,
EPA
specifically
solicits
comment
on
this
proposed
rule
from
State
and
local
officials.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
20
Executive
Order
13175,
entitled,
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."

This
proposed
rule
does
not
have
Tribal
implications.
It
will
not
have
substantial
direct
effects
on
Tribal
governments,
on
the
relationship
between
the
Federal
government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes,
as
specified
in
Executive
Order
13175.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.

EPA
specifically
solicits
additional
comment
on
this
proposed
rule.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
Executive
Order
13045:
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
E.
O.
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.
This
regulation
is
not
subject
to
Executive
Order
13045
because
it
is
not
economically
significant
as
defined
under
E.
O.
12866,
and
because
the
Agency
does
not
have
reason
to
believe
the
environmental
health
and
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children.
The
proposed
rule
only
interprets
the
legal
scope
of
NPDES
permits
requirement
under
the
CWA
and
does
not
change
how
pesticide
applications
are
addressed
under
FIFRA.
21
H.
Executive
Order
13211:
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
proposed
rule
would
not
be
subject
to
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"
(
66
FR
28355
(
May
22,
2001))
because
it
is
not
a
significant
regulatory
action
under
Executive
Order
12866.
The
only
effect
of
this
proposed
rule
would
be
is
to
identify
two
circumstances
in
which
the
application
of
a
pesticide
to
waters
of
the
United
States
consistent
with
all
relevant
requirements
under
FIFRA
does
not
constitute
the
discharge
of
a
pollutant
that
requires
a
NPDES
permit
under
the
Clean
Water
Act.

I.
National
Technology
Transfer
And
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
("
NTTAA"),
Pub
L.
No.
104­
113,
Section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standard
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
proposed
rulemaking
does
not
involve
technical
standards.

VI.
Today's
Interpretive
Statement
22
The
text
of
the
final
Interpretive
Statement
follows:

MEMORANDUM
SUBJECT:
Interpretive
Statement
on
Application
of
Pesticides
to
Waters
of
the
United
States
in
Compliance
with
FIFRA
FROM:
Benjamin
H.
Grumbles
(
signed
and
dated
January
25,
2005)

Assistant
Administrator
for
Water
(
4101)

Susan
Hazen
(
signed
and
dated
January
25,
2005)

Acting
Assistant
Administrator
for
23
Prevention,
Pesticides
and
Toxic
Substances
(
7101)

TO:
Regional
Administrators,
Regions
I
­
X
The
Environmental
Protection
Agency
(
EPA)
is
issuing
this
interpretation
of
the
Clean
Water
Act
(
CWA)
to
address
issues
regarding
coverage
under
the
CWA
of
pesticides
regulated
under
the
Federal
Insecticide,
Fungicide
and
Rodenticide
Act
(
FIFRA)
that
are
applied
to
or
over,
including
near,
waters
of
the
United
States.
This
Memorandum
is
issued
to
address
the
question
of
whether
National
Pollutant
Discharge
Elimination
System
(
NPDES)
permits
under
section
402
of
the
CWA
are
required
for
the
applications
of
pesticides
described
below
that
comply
with
relevant
requirements
of
FIFRA.
EPA
provided
public
notice
of
and
solicited
public
comment
on
its
interpretation
of
the
CWA
with
regard
to
this
question.
See
68
Fed.
Reg.
48385
(
Aug.
13,
2003).
After
considering
the
comments
received
in
response
to
that
notice,
EPA
is
issuing
this
Interpretive
Statement.

The
application
of
a
pesticide
to
or
over,
including
near,
waters
of
the
United
States
consistent
with
all
relevant
requirements
under
FIFRA
does
not
constitute
the
discharge
of
a
pollutant
that
requires
a
NPDES
permit
under
the
Clean
Water
Act
in
the
following
two
circumstances:
1
As
described
in
this
Interpretive
Statement,
pesticides
designed
and
registered
for
application
to
or
over,
including
near,
water
are
not
considered
to
be
pollutants
requiring
an
NPDES
permit
under
the
CWA,
regardless
of
whether
the
pesticides
targets
are
in
the
water
itself
or
over,
including
near,
the
water.
If
applied
in
accordance
with
all
relevant
requirements
under
FIFRA,
EPA
considers
these
pesticides
to
be
products
that
are
applied
to
perform
their
intended
purpose
of
controlling
target
organisms
and,
therefore,
are
neither
"
chemical
wastes"
nor
"
biological
materials"
within
the
meaning
of
section
502(
6)
of
the
CWA.
This
includes
any
residual
product
that
is
an
inherent,
inextricable
element
of
the
pesticide
application.
For
purposes
of
this
Interpretive
Statement,
EPA
considers
the
portion
of
a
pesticide
application
that
does
not
reach
a
target
organism
and
any
pesticide
remaining
in
the
water
after
the
application
is
complete
to
be
residual
product,
and
not
a
pollutant
requiring
an
NPDES
permit,
only
if
the
product
had
been
applied
in
accordance
with
all
relevant
requirements
under
FIFRA.
However,
the
Agency
continues
to
review
whether
and
under
what
unique
circumstances
the
material
might
later
become
a
waste
and,
therefore,
a
pollutant.
See
also
n.
5,
infra.
If
such
residuals
were
to
present
a
water
quality
problem,
they
could
be
addressed
through
nonregulatory
planning
and
24
1)
The
application
of
pesticides
directly
to
waters
of
the
United
States
in
order
to
control
pests.
Examples
of
such
applications
include
applications
to
control
mosquito
larvae,
aquatic
weeds
or
other
pests
that
are
present
in
the
waters
of
the
United
States.

2)
The
application
of
pesticides
to
control
pests
that
are
present
over
waters
of
the
United
States,
including
near
such
waters,
that
results
in
a
portion
of
the
pesticides
being
deposited
to
waters
of
the
United
States;
for
example,
when
insecticides
are
aerially
applied
to
a
forest
canopy
where
waters
of
the
United
States
may
be
present
below
the
canopy
or
when
pesticides
are
applied
over,
including
near,
water
for
control
of
adult
mosquitos
or
other
pests.

It
is
the
Agency's
position
that
these
types
of
applications
do
not
require
NPDES
permits
under
the
Clean
Water
Act
if
the
pesticides
are
applied
consistent
with
all
relevant
requirements
under
FIFRA
(
i.
e.,
those
relevant
to
protecting
water
quality).
1
Applications
of
pesticides
in
grant
processes
under
the
CWA.

The
Agency's
interpretation
is
not
inconsistent
with
the
result
in
the
Ninth
Circuit's
decision
in
Headwaters,
Inc.
v.
Talent
Irrigation
District,
243
F.
3d
526
(
9th
Cir.
2001),
because
in
the
factual
situation
described
by
the
district
court,
in
EPA's
view,
the
application
did
not
comply
with
relevant
FIFRA
requirements
and,
therefore,
was
not
the
type
of
activity
addressed
by
this
Interpretive
Statement.

25
violation
of
the
relevant
requirements
under
FIFRA
would
be
subject
to
enforcement
under
any
and
all
appropriate
statutes
including,
but
not
limited
to
FIFRA
and
the
Clean
Water
Act.

EPA
will
continue
to
review
the
variety
of
other
circumstances
beyond
the
two
described
above
in
which
questions
have
been
raised
about
whether
applications
of
pesticides
that
enter
waters
of
the
U.
S.
are
regulated
under
the
CWA,
including
other
applications
over
land
areas
that
may
drift
over
and
into
waters
of
the
U.
S.

Through
a
proposed
rule
in
the
Federal
Register,
EPA
will
solicit
comment
on
incorporating
the
substance
of
this
Interpretive
Statement
in
the
NPDES
permit
program
regulations
in
40
CFR
Part
122.
Notwithstanding
that
action,
however,
the
application
of
pesticides
in
compliance
with
relevant
FIFRA
requirements
is
not
subject
to
NPDES
permitting
requirements,
as
described
in
this
Interpretive
Statement.

Background
and
Rationale
2
In
an
amicus
brief
filed
by
the
United
States
in
the
Talent
case,
the
Agency
did
not
address
EPA's
interpretation
of
the
circumstances
in
which
pesticides
applied
to
or
over
water
are
"
pollutants"
under
the
CWA's
definition
of
that
term.
Rather,
the
Talent
brief
accepted
the
District
Court's
factual
findings
that
a
"
person"
had
discharged
a
"
pollutant"
from
a
"
point
source"
into
"
navigable
waters"
but
then
disputed
the
District'
Court's
legal
determination
that,
even
in
these
circumstances,
the
discharge
did
not
require
a
CWA
permit
because
the
FIFRA
label
for
the
particular
pesticide
did
not
reference
the
NPDES
permitting
requirement.
In
contrast,
this
Interpretive
Statement
addresses
the
specific
and
distinct
legal
question
of
whether
pesticides
applied
in
the
two
specific
circumstances
discussed
above
are
pollutants
to
begin
with,
and
concludes
they
are
not,
provided
the
use
of
the
pesticide
complies
with
all
relevant
FIFRA
requirements.

26
In
this
Interpretive
Statement,
the
Agency
construes
the
Clean
Water
Act
in
a
manner
consistent
with
how
the
statute
has
been
administered
for
more
than
30
years.
EPA
does
not
issue
NPDES
permits
solely
for
the
direct
application
of
a
pesticide
to
target
a
pest
that
is
present
in
or
over
a
water
of
the
United
States,
nor
has
it
ever
stated
in
any
general
policy
or
guidance
that
an
NPDES
permit
is
required
for
such
applications.

It
has
been
and
will
continue
to
be
the
operating
approach
of
the
Agency
that
the
application
of
agricultural
and
other
pesticides
in
accordance
with
label
directions
is
not
subject
to
NPDES
permitting
requirements.

In
Headwaters,
Inc.
v.
Talent
Irrigation
District,
the
U.
S.
Court
of
Appeals
for
the
Ninth
Circuit
held
that
an
applicator
of
herbicides
was
required
to
obtain
an
NPDES
permit
under
the
circumstances
before
the
court.
243
F.
3rd
526
(
9th
Cir.
2001).
2
The
Talent
decision
caused
public
health
authorities,
natural
resource
managers
and
others
who
rely
on
pesticides
great
concern
and
confusion
about
whether
they
have
a
legal
obligation
to
obtain
an
NPDES
permit
when
applying
a
pesticide
consistent
with
FIFRA
and,
if
so,
the
potential
impact
such
a
requirement
could
have
on
accomplishing
their
own
mission
of
protecting
human
health
and
the
environment.
Since
Talent,
only
a
few
states
have
issued
NPDES
permits
for
the
application
of
pesticides.
Most
state
NPDES
permit
authorities
have
opted
not
to
require
applicators
of
3
EPA
discusses
the
positions
taken
in
Talent
and
Altman
in
greater
detail
in
a
Memorandum
issued
by
EPA's
General
Counsel
on
January
24,
2005,
titled
"
Analysis
of
Previous
Federal
Government
Statements
on
Application
of
Pesticides
to
Waters
of
the
United
States
in
Compliance
with
FIFRA."

27
pesticides
to
obtain
an
NPDES
permit.
In
addition,
state
officials
have
continued
to
apply
pesticides
for
public
health
and
resource
management
purposes
without
obtaining
an
NPDES
permit.
These
varying
practices
reflect
the
substantial
uncertainty
among
regulators,
the
regulated
community
and
the
public
regarding
how
the
Clean
Water
Act
applies
to
the
use
of
pesticides.

There
has
been
continued
litigation
and
uncertainty
following
the
Talent
decision.
One
such
case
is
Altman
v.
Town
of
Amherst
(
Altman),
which
was
brought
against
the
Town
of
Amherst
for
not
having
obtained
an
NPDES
permit
for
its
application
of
pesticides
to
wetlands
as
part
of
a
mosquito
control
program.
EPA
filed
an
amicus
brief
in
that
case
setting
forth
the
agency's
views
in
the
context
of
that
particular
case.
In
September
2002,
the
Second
Circuit
remanded
the
Altman
case
for
further
consideration
and
issued
a
Summary
Order
that
stated,
"
Until
the
EPA
articulates
a
clear
interpretation
of
current
law
among
other
things,
whether
properly
used
pesticides
released
into
or
over
waters
of
the
United
States
can
trigger
the
requirement
for
an
NPDES
permit
[
or
a
state­
issued
permit
in
the
case
before
the
court]
the
question
of
whether
properly
used
pesticides
can
become
pollutants
that
violate
the
Clean
Water
Act
will
remain
open."
46
Fed.
Appx.
62,
67
(
2d
Cir.
2002).

This
Memorandum
provides
EPA's
interpretation
of
how
the
CWA
currently
applies
to
the
two
specific
circumstances
listed
above.
Under
those
circumstances,
EPA
has
concluded
that
the
CWA
does
not
require
NPDES
permits
for
a
pesticide
applied
consistent
with
all
relevant
requirements
under
FIFRA.
3
4
This
Interpretive
Statement
addresses
circumstances
when
a
pesticide
is
not
a
"
pollutant"
that
would
be
subject
to
NPDES
permit
requirements
when
discharged
into
a
water
of
the
United
States.
It
does
not
address
the
threshold
question
of
whether
these
or
other
types
of
pesticide
applications
constitute
"
point
source"
discharges
to
waters
of
the
United
States.
On
March
29,
2002,
EPA
issued
a
Memorandum
titled
"
Interpretive
Statement
and
Regional
Guidance
on
the
Clean
Water
Act's
Exemption
for
Return
Flows
from
Irrigated
Agriculture."
This
statement
clarified
that
the
application
of
an
aquatic
herbicide
consistent
with
the
FIFRA
label
to
ensure
the
passage
of
irrigation
return
flow
is
a
nonpoint
source
activity
not
subject
to
NPDES
permit
requirements
under
the
CWA.
Additionally,
on
September
13,
2003,
EPA's
General
Counsel
issued
a
Memorandum
titled
"
Interpretive
Statement
and
Guidance
Addressing
Effect
of
Ninth
Circuit
Decision
in
League
of
Wilderness
Defenders
v.
Forsgren
on
Application
of
Pesticides
and
Fire
Retardants."
That
Memorandum
reaffirmed
EPA's
long­
standing
interpretation
of
its
regulations
that
silvicultural
activities
such
as
pest
and
fire
control
are
nonpoint
source
activities
that
do
not
require
NPDES
permits.
Both
these
documents
remain
in
effect
and
are
available
at
www.
epa.
gov/
npdes/
agriculture.

28
Many
of
the
pesticide
applications
covered
by
this
memorandum
are
applied
either
to
address
public
health
concerns
such
as
controlling
mosquitos
or
to
address
natural
resource
needs
such
as
controlling
non­
native
species
or
plant
matter
growth
that
upsets
a
sustainable
ecosystem
or
blocks
the
flow
of
water
in
irrigation
systems.
Under
FIFRA,
EPA
is
charged
to
consider
the
effects
of
pesticides
on
the
environment
by
determining,
among
other
things,
whether
a
pesticide
"
will
perform
its
intended
function
without
unreasonable
adverse
effects
on
the
environment,"
and
whether
"
when
used
in
accordance
with
widespread
and
commonly
recognized
practice
[
the
pesticide]
will
not
generally
cause
unreasonable
adverse
effects
on
the
environment."
FIFRA
section
3(
c)(
5).

The
application
of
a
pesticide
to
waters
of
the
U.
S.
would
require
an
NPDES
permit
only
if
it
constitutes
the
"
discharge
of
a
pollutant"
within
the
meaning
of
the
Clean
Water
Act.
4
The
term
"
pollutant"
is
defined
in
section
502(
6)
of
the
CWA
as
follows:

The
term
`
pollutant'
means
dredged
spoil,
solid
waste,
incinerator
residue,
sewage,
5
Where,
however,
pesticides
are
a
waste,
for
example
when
contained
in
stormwater
regulated
under
section
402(
p)
of
the
CWA
or
other
industrial
or
municipal
discharges,
they
are
pollutants
and
their
discharge
by
a
point
source
to
a
water
of
the
U.
S.
may
be
controlled
in
an
NPDES
permit.

6
Taken
to
its
literal
extreme,
such
an
interpretation
could
arguably
mean
that
activities
such
as
fishing
with
bait
would
constitute
the
addition
of
a
pollutant.

29
garbage,
sewage
sludge,
munitions,
chemical
wastes,
biological
materials,
radioactive
materials,
heat,
wrecked
or
discarded
equipment,
rock,
sand,
cellar
dirt
and
industrial,
municipal,
and
agricultural
waste
discharged
into
water.

EPA
has
evaluated
whether
pesticides
applied
consistent
with
FIFRA
fall
within
any
of
the
terms
in
section
506(
2),
in
particular
whether
they
are
"
chemical
wastes"
or
"
biological
materials."
EPA
has
concluded
that
they
do
not
fall
within
either
term.
First,
EPA
does
not
believe
that
pesticides
applied
consistent
with
FIFRA
are
"
chemical
wastes."
The
term
"
waste"
ordinarily
means
that
which
is
"
eliminated
or
discarded
as
no
longer
useful
or
required
after
the
completion
of
a
process."
The
New
Oxford
American
Dictionary
1905
(
Elizabeth
J.
Jewell
&
Frank
Abate
eds.,
2001);
see
also
The
American
Heritage
Dictionary
of
the
English
Language
1942
(
Joseph
P.
Pickett
ed.,
4th
ed.
2000)
(
defining
waste
as
"[
a]
n
unusable
or
unwanted
substance
or
material,
such
as
a
waste
product").
Pesticides
applied
consistent
with
FIFRA
are
not
such
wastes;
on
the
contrary,
they
are
EPA­
evaluated
products
designed,
purchased
and
applied
to
perform
their
intended
purpose
of
controlling
target
organisms
in
the
environment.
5
Therefore,
EPA
concludes
that
"
chemical
wastes"
do
not
include
pesticides
applied
consistent
with
FIFRA.

EPA
also
interprets
the
term
"
biological
materials"
not
to
include
pesticides
applied
consistent
with
FIFRA.
We
think
it
unlikely
that
Congress
intended
EPA
and
the
States
to
issue
permits
for
the
discharge
into
water
of
any
and
all
material
with
biological
content.
6
With
specific
regard
to
biological
pesticides,
moreover,
we
think
it
far
more
likely
that
Congress
intended
not
to
include
biological
pesticides
within
the
definition
of
"
pollutant."
This
interpretation
is
supported
7
Further,
some
pesticide
products
may
elude
classification
as
strictly
"
chemical"
or
"
biological."

8
EPA's
interpretation
of
section
502(
6)
with
regard
to
biological
pesticides
should
not
be
taken
to
mean
that
EPA
reads
the
CWA
generally
to
regulate
only
wastes.
EPA
notes
that
other
terms
in
section
502(
6)
may
or
may
not
be
limited
in
whole
or
in
part
to
wastes,
depending
on
how
the
substances
potentially
addressed
by
those
terms
are
created
or
used.
For
example,
"
sand"
and
"
rock"
can
either
be
discharged
as
waste
or
as
fill
material
to
create
structures
in
waters
of
the
U.
S.,
and
Congress
created
in
section
404
of
the
Act
a
specific
regulatory
program
to
address
such
discharges.
See
67
Fed.
Reg.
31129
(
May
9,
2002)
(
subjecting
to
the
section
404
program
discharges
that
have
the
effect
of
filling
waters
of
the
U.
S.,
including
fills
constructed
for
beneficial
purposes).
The
question
in
any
particular
case
is
whether
a
discharge
falls
within
one
of
the
terms
in
section
502(
6),
in
light
of
the
factors
relevant
to
the
interpretation
of
that
particular
30
by
multiple
factors.

EPA's
interpretation
of
"
biological
materials"
as
not
including
biological
pesticides
avoids
the
nonsensical
result
of
treating
biological
pesticides
as
pollutants
even
though
chemical
pesticides
are
not.
Since
all
pesticides
applied
in
a
manner
consistent
with
the
relevant
requirements
under
FIFRA
are
EPA­
evaluated
products
that
are
intended
to
perform
essentially
similar
functions,
disparate
treatment
would,
in
EPA's
view,
not
be
warranted,
and
an
intention
to
incorporate
such
disparate
treatment
into
the
statute
ought
not
to
be
imputed
to
Congress.
7
Moreover,
at
the
time
the
Act
was
adopted
in
1972,
chemical
pesticides
were
the
predominant
type
of
pesticide
in
use.
In
light
of
this
fact,
it
is
not
surprising
that
Congress
failed
to
discuss
whether
biological
pesticides
were
covered
by
the
Act.
The
fact
that
more
biological
pesticides
have
been
developed
since
passage
of
the
1972
Act
does
not,
in
EPA's
view,
justify
expanding
the
Act's
reach
to
include
such
pesticides
when
there
is
no
evidence
that
Congress
intended
them
to
be
covered
by
the
statute
in
a
manner
different
from
chemical
pesticides.
Finally,
many
of
the
biological
pesticides
in
use
today
are
reduced­
risk
products
that
produce
a
more
narrow
range
of
potential
adverse
environmental
effects
than
many
chemical
pesticides.
As
a
matter
of
policy,
it
makes
little
sense
and
would
be
inconsistent
with
the
environmental
purposes
of
the
CWA
to
discourage
the
use
of
these
products
by
treating
them
as
subject
to
CWA
permitting
requirements
when
chemical
pesticides
are
not.
Caselaw
also
supports
this
interpretation.
Ass'n
to
Protect
Hammersley,
Eld,
and
Totten
Inlets
v.
Taylor
Resources,
299
F.
3d
1007,
1016
(
9th
Cir.
2002)
(
application
of
the
esjudem
generis
canon
of
statutory
interpretation
supports
the
view
that
the
CWA
"
supports
an
understanding
of
.
.
.
`
biological
materials,'
as
waste
material
of
a
human
or
industrial
process").
8
term.
As
discussed
above,
the
factors
critical
to
EPA's
interpretation
concerning
biological
pesticides
are
consistency
with
section
502(
6)'
s
treatment
of
chemical
pesticides
and
chemical
wastes,
and
how
the
general
term
"
biological
materials"
fits
within
the
constellation
of
other,
more
specific
terms
in
section
502(
6),
which
to
a
great
extent
focuses
on
wastes.

31
Under
EPA's
interpretation,
whether
a
pesticide
is
a
pollutant
under
the
CWA
turns
on
whether
or
not
it
is
a
chemical
waste
or
biological
material
within
the
meaning
of
the
statute,
and
this
can
only
be
determined
by
considering
the
manner
in
which
the
pesticide
is
used.
Where
a
pesticide
is
used
for
its
intended
purpose
and
its
use
complies
with
all
relevant
requirements
under
FIFRA,
EPA
has
determined
that
it
is
not
a
chemical
waste
or
biological
material
and,
therefore,
is
not
a
pollutant
subject
to
NPDES
permitting
requirements.
That
coverage
under
the
Act
turns
on
the
particular
circumstances
of
its
use
is
not
remarkable.
Indeed,
when
asked
on
the
Senate
floor
whether
a
particular
discharge
would
be
regulated,
the
primary
sponsor
of
the
CWA,
Senator
Muskie
(
whose
views
regarding
the
interpretation
of
the
CWA
have
been
accorded
substantial
weight
over
the
last
four
decades),
stated:

I
do
not
get
into
the
business
of
defining
or
applying
these
definitions
to
particular
kinds
of
pollutants.
That
is
an
administrative
decision
to
be
made
by
the
Administrator.
Sometimes
a
particular
kind
of
matter
is
a
pollutant
in
one
circumstance,
and
not
in
another.
Senate
Debate
on
S.
2770,
Nov.
2,
1971
(
117
Cong.
Rec.
38,838).

Here,
to
determine
whether
a
pesticide
is
a
pollutant
under
the
CWA,
EPA
believes
it
is
appropriate
to
consider
the
circumstances
of
how
a
pesticide
is
applied,
specifically
whether
it
is
applied
consistent
with
relevant
requirements
under
FIFRA.
Rather
than
interpret
the
statutes
so
as
to
impose
overlapping
and
potentially
confusing
regulatory
regimes
on
the
use
of
pesticides,
9
EPA's
Talent
brief
suggested
that
compliance
with
FIFRA
does
not
necessarily
mean
compliance
with
the
CWA,
and
pointed
out
one
difference
between
CWA
and
FIFRA
regulation,
i.
e.,
individual
NPDES
permits
could
address
local
water
quality
concerns
that
might
not
be
specifically
addressed
through
FIFRA's
national
registration
process.
The
position
EPA
is
articulating
in
this
memo
would
not
preclude
states
from
further
limiting
the
use
of
a
particular
pesticide
in
accord
with
their
authorities
under
7
USC
136v(
a)
and
Wisconsin
Public
Intervenor
v.
Mortier,
501
U.
S.
597,
613­
614
(
1991),
to
the
extent
otherwise
authorized
by
federal
and
state
law.
Furthermore,
under
Section
510
of
the
CWA,
States
and
other
governmental
entities
are
not
precluded
from
adopting
more
stringent
requirements
to
address
local
water
quality
concerns.

32
this
interpretation
seeks
to
harmonize
the
CWA
and
FIFRA.
9
Under
this
interpretation,
a
pesticide
applicator
is
assured
that
complying
with
relevant
requirements
under
FIFRA
will
mean
that
the
activity
is
not
also
subject
to
the
distinct
NPDES
permitting
requirements
of
the
CWA.
However,
like
an
unpermitted
discharge
of
a
pollutant,
application
of
a
pesticide
in
violation
of
relevant
FIFRA
requirements
would
be
subject
to
enforcement
under
any
and
all
appropriate
statutes
including,
but
not
limited
to,
FIFRA
and
the
CWA.

Please
feel
free
to
call
us
to
discuss
this
memorandum.
Your
staff
may
call
Louis
Eby
in
the
Office
of
Wastewater
Management
at
(
202)
564­
6599
or
William
Jordan
in
the
Office
of
Pesticide
Programs
at
(
703)
305­
1049.

List
of
Subjects
in
40
CFR
Part
122
33
Environmental
protection,
Administrative
practice
and
procedure,
Confidential
business
information,
Hazardous
substances,
Reporting
and
recordkeeping
requirements,
Water
pollution
control.
34
Dated:
January
26,
2005
Stephen
L.
Johnson,

Deputy
Administrator.
35
For
the
reasons
set
forth
in
the
preamble,
chapter
I
of
title
40
of
the
Code
of
Federal
Regulations
is
proposed
to
be
amended
as
follows:

PART
122­­
EPA
ADMINISTERED
PERMIT
PROGRAMS:
THE
NATIONAL
POLLUTANT
DISCHARGE
ELIMINATION
SYSTEM
1.
The
authority
citation
for
part
122
continues
to
read
as
follows:

Authority:
The
Clean
Water
Act,
33
U.
S.
C.
1251
et
seq.

Subpart
A
­
[
Amended]

2.
Section
122.3
is
amended
by
adding
paragraph
(
h)
to
read
as
follows:
36
§
122.3
Exclusions.

*
*
*
*
*

(
h)
The
application
of
pesticides
to
waters
of
the
United
States
consistent
with
all
relevant
requirements
under
FIFRA
(
i.
e.,
those
relevant
to
protecting
water
quality),
in
the
following
two
circumstances:

(
1)
The
application
of
pesticides
directly
to
waters
of
the
United
States
in
order
to
control
pests.
Examples
of
such
applications
include
applications
to
control
mosquito
larvae,
aquatic
weeds
or
other
pests
that
are
present
in
the
waters
of
the
United
States.

(
2)
The
application
of
pesticides
to
control
pests
that
are
present
over
waters
of
the
United
States,
including
near
such
waters,
that
results
in
a
portion
of
the
pesticides
being
deposited
to
waters
of
the
United
States;
for
example,
when
insecticides
are
aerially
applied
to
a
forest
canopy
where
waters
of
the
United
States
may
be
present
below
the
canopy
or
when
pesticides
are
applied
over,
including
near,
water
for
control
of
adult
mosquitos
or
other
pests.
