ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[  SEQ CHAPTER \h \r 1 OW-2003-0063; FRL-XXXX-X]

  SEQ CHAPTER \h \r 1 RIN 2040-AE79  

Application of Pesticides to Waters of the United States in Compliance
With FIFRA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule

SUMMARY:  Today EPA is issuing a regulation stating that the application
of a pesticide in compliance with relevant requirements of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not require a
National Pollutant Discharge Elimination System (NPDES) permit in two
specific circumstances.  The first circumstance is when the application
of the pesticide is made directly to waters of the United States to
control pests that are present in the water.  The second circumstance is
when the application of the pesticide is made to control pests that are
over, including near, waters of the United States.  This rulemaking is
based on the Agency’s interpretation of the definition of the term
“pollutant” under the Clean Water Act (CWA) as not including such
pesticides.

 This final rulemaking replaces EPA’s previously published Interim and
Final Interpretive Statements on the Application of Pesticides to Waters
of the United States in Compliance with FIFRA.  EPA’s Interpretive
Statement, published February 1, 2005, described the Agency’s
interpretation of the CWA with regard to the application of pesticides
regulated under FIFRA that are applied to or over, including near,
waters of the United States.  On August 13, 2003, EPA provided public
notice of and solicited public comment on an Interim Statement and
incorporated that input into the Interpretive Statement.  On February 1,
2005, EPA published the Interpretive Statement and proposed to codify
its substance in EPA’s NPDES regulations and solicited comment on that
proposed action. Today’s final rule is the result of this process. 

DATES: These final regulations are effective on [INSERT DATE 60 days
after publication in the Federal Register].

ADDRESSES:   SEQ CHAPTER \h \r 1 EPA has established a docket for this
action under Docket ID No. OW-2003-0063.    SEQ CHAPTER \h \r 1 All
documents in the docket are listed online at http://www.regulations.gov.
 Although listed in the online docket, some information is not publicly
available, i.e., Confidential Business Information (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 online or in hard copy
at the Water   SEQ CHAPTER \h \r 1 Docket, EPA/DC, 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
Jeremy Arling, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: 202-564-2218, e-mail address:
arling.jeremy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

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

Table 1. - Entities Potentially Regulated by this Rule

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.

 	113210 Forest Nurseries 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.

 	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.

Other Parties	713910 Golf courses and country clubs	Golf course
operators who have ponds for irrigation.



This table is not intended to be exhaustive, but rather provides a guide
for readers regarding entities likely to be affected by this action. 
This table lists the types of entities that EPA is now aware could
potentially be affected by this action.  Other types of entities not
listed in the table could also be affected.  To determine whether your
facility is affected by this action, you should carefully examine the
applicability criteria in 40 CFR 122.23.  If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding "FOR FURTHER INFORMATION
CONTACT" section.

II.  Background

A.  Clean Water Act and the Federal Insecticide, Fungicide, and
Rodenticide Act 

	Congress passed the Federal Water Pollution Control Act (1972), also
known as the Clean Water Act (CWA), to “restore and maintain the
chemical, physical, and biological integrity of the nation’s waters”
33 U.S.C. 1251(a).  The CWA prohibits the discharge of any pollutant by
any person from a point source into a water of the United States, except
in compliance with certain other provisions of the Act, including
Section 402.  33 U.S.C. 1311(a).  Section 402 in turn authorizes EPA to
issue permits under the National Pollutant Discharge Elimination System
(NPDES) permit program for such discharges.  States may also issue NPDES
permits if authorized to do so by EPA. 33 U.S.C. 1342(a) and (b).

	NPDES permits under the CWA are required only for point source
discharges of materials that are pollutants to waters of the United
States.  Section 502(6) of the CWA defines “pollutant” to mean:

…dredged spoil, solid waste, incinerator residue, sewage, 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.

33 U.S.C. 1362(6).  In the more than 30 years that EPA has administered
the CWA, the Agency has never issued an NPDES permit for the application
of a pesticide to or over water to target a pest that is present in or
over the water.  Nor has the Agency ever stated in any general policy or
guidance that an NPDES permit is required for such applications.

	EPA regulates the sale, distribution and use of pesticides in the
United States under the statutory framework of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) to ensure that when used in
conformance with FIFRA labeling directions, pesticides will not pose
unreasonable risks to human health and the environment.  All new
pesticides must undergo a rigorous registration procedure under FIFRA
during which EPA assesses a variety of potential human health and
environmental effects associated with use of the product.  

Under FIFRA, EPA is required 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.” 
7 U.S.C. 136a(c)(5).  In performing this analysis, EPA examines the
ingredients of a pesticide, the intended type of application site and
directions for use, and supporting scientific studies for human health
and environmental effects and exposures.  The applicant for registration
of the pesticide must provide data from tests done according to EPA
guidelines.  This process is discussed in more detail below.

Several courts have recently addressed the question of whether the CWA
requires NPDES permits for pesticide applications.  These cases have
resulted in some confusion among the regulated community and other
affected citizens about the applicability of the CWA to pesticides
applied to waters of the United States.  In 2001, the U.S. Court of
Appeals for the Ninth Circuit held in Headwaters, Inc. v. Talent
Irrigation District (Talent) that an applicator of herbicides was
required to obtain an NPDES permit under the circumstances before the
court (described in detail in Section V.C. below).  243 F.3rd 526 (9th
Cir. 2001).  The Talent decision caused considerable concern and
confusion among public health authorities, natural resource managers,
and others who rely on pesticides regarding their potential obligation
to obtain an NPDES permit when applying a pesticide consistent with
FIFRA and particularly about the impact of such a requirement on
accomplishing their mission of protecting human health and the
environment. 

	In 2002, the Ninth Circuit in League of Wilderness Defenders et al. v.
Forsgren (Forsgren) held that the application of pesticides to control
gypsy moths in National Forest lands required an NPDES permit.  309 F.3d
1181 (9th Cir. 2002).  The court in Forsgren did not analyze the
question of whether the pesticides applied were pollutants, because it
assumed that the parties agreed that they were.  In fact, the United
States expressly reserved its arguments on that issue in its brief to
the District Court.  Id. at 1184, n.2.  The court instead analyzed the
question of whether the aerial application of the pesticide constituted
a point source discharge, and concluded that it did.  Id. at 1185.

Since Talent and Forsgren, California, Nevada, Oregon, and Washington,
all of which are within the Ninth Circuit, have issued permits for the
application of certain types of pesticides (e.g., products to control
aquatic weeds and algae and products to control mosquito larvae).  Other
States have continued their longstanding practice of not issuing permits
to people who apply pesticides to waters of the United States.  These
varying practices reflect the substantial uncertainty among regulators,
the regulated community, and the public regarding how the Clean Water
Act applies to pesticides that have been properly applied and used for
their intended purpose.

The Ninth Circuit recently addressed the Clean Water Act’s
applicability to pesticide applications for a third time.  In Fairhurst
v. Hagener, the court held that pesticides applied directly to a lake in
order to eliminate non-native fish species, where there are no residues
or unintended effects, are not “pollutants” under the CWA because
they are not chemical wastes.  422 F.3d 1146 (9th Cir. 2005). 

Since Talent and Forsgren, other courts have addressed the applicability
of the CWA’s NPDES permit requirements to pesticide applications.  In
Altman v. Town of Amherst (Altman), the Second Circuit vacated and
remanded for further development of the record a District Court decision
holding that the Town of Amherst was not required to obtain an NPDES
permit to spray mosquitocides over waters of the United States. 47 Fed.
Appx. 62, 67 (2nd Cir. 2002).  The United States filed an amicus brief
setting forth the Agency’s views in the context of that particular
case.  In its opinion, the Second Circuit stated that “[u]ntil 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 NPDES permits … -- the
question of whether properly used pesticides can become pollutants that
violate the CWA will remain open.” Id. at 67.

B.  Interim and Interpretive Statements

In August 2003, EPA first analyzed the applicability of the NPDES permit
program to pesticide applications in an administrative context through
an Interim Statement and Guidance.  68 FR 48385 (Aug. 13, 2003).  The
Interim Statement presented EPA’s position on the two circumstances in
which pesticides applied to waters of the United States consistent with
all relevant requirements of FIFRA are not “pollutants” under the
CWA and thus do not require an NPDES permit.  Although the United States
previously addressed issues related to the Interim Statement in several
amicus briefs, including those filed in Talent and Altman, those briefs
reflected the government’s evaluation of the law in the context of
specific factual situations, and did not result from deliberative
consideration through an administrative process.  As such, the amicus
briefs did not represent EPA’s legal position on the precise questions
at issue in the Interim Statement or in today’s regulation. 

EPA solicited public comments on its interpretation of the term
“pollutant” in the Interim Statement as it relates to certain
pesticide applications.  After considering the public comments, EPA
issued a final Interpretive Statement on January 25, 2005.  EPA
simultaneously published a notice of proposed rulemaking to incorporate
the substance of the Interpretive Statement into EPA regulations and
solicited public comment on the proposed rulemaking.  70 FR 5093 (Feb.1,
2005).  EPA has considered the comments received and is today taking
final action on the proposed regulation.  The final regulation is
substantially similar to the proposed regulations, with certain
modifications described below.

III. Summary of the Final Rule

	EPA is revising the NPDES permit program regulations to add a paragraph
to the list of discharges in 40 CFR 122.3 that are excluded from NPDES
permit requirements.  Specifically, today’s regulation excludes
applications of pesticides to waters of the United States consistent
with all relevant requirements under FIFRA in two specific circumstances
as follows:

(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 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, where a
portion of the pesticides will unavoidably be deposited to waters of the
United States in order to target the pests effectively; 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 or near water for control of adult mosquitoes or other
pests.

Pesticides applied under these circumstances are not pollutants and
therefore are not subject to NPDES permitting requirements.

EPA’s final rule is substantially similar to the rule proposed in
February 2005.  EPA has modified the proposed regulatory text only to
clarify the types of pesticide applications covered in the second
circumstance (those to control pests present over, including near,
waters of the United States).  Commenters raised concerns that the
second circumstance, as written in the proposed rule, could be
interpreted more broadly than the Agency intended (e.g. encompassing
drift from terrestrial pesticide applications).  The final rule
clarifies that the applications in the second circumstance are those in
which it is unavoidable that some of the pesticides will be deposited
into water in order to effectively target the pests.  In other words,
EPA is clarifying in the final rule that the regulation encompasses only
those applications to control pests over, including near, waters of the
United States, where the pesticide necessarily must enter the water in
order for the application to achieve its intended purpose.  Thus, the
applications must first be intended to control pests over (including
near) a water of the United States.  Second, it must be unavoidable that
the pesticide enter the water in order to target such pests effectively.
 For example, EPA believes that wide-area forest canopy insecticide
applications can result in deposition to streams and other waters of the
U.S. which are either not visible to the aerial applicator or not
possible to avoid given the location of aerial application, and that in
such circumstances, it is unavoidable that the pesticide enter the water
in order to effectively target pests living in the canopy.  Likewise,
mosquito adulticide applications can result in some pesticide product
entering the water because adult mosquitoes generally live over and
adjacent to waterbodies.  Similarly, pesticide applications to control
non-native plants which grow at the water’s edge, such as purple
loosestrife, are intended to be covered by this provision, because when
targeting plants at the water’s edge, it is unavoidable that some of
the herbicide will enter the water.  EPA notes that the clarifying
language in 122.3(h)(2) is not intended to impose any additional
requirements on pesticide applications beyond relevant FIFRA
requirements.  In addition, it is not intended to address applications
of pesticides to terrestrial agricultural crops.		

IV.	Discussion

	Today's rulemaking implements EPA’s interpretation of the CWA’s
definition of “pollutant” with respect to certain applications of
pesticides.  Under the CWA, pollutant means: 

…dredged spoil, solid waste, incinerator residue, sewage, 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. 33 U.S.C. 1362(6). 

The circumstances of pesticide applications covered under today’s rule
are limited to the two types of applications described above, when
conducted in compliance with all relevant requirements of FIFRA.  EPA
considers “relevant requirements” of FIFRA to mean those FIFRA
requirements that relate to water quality.  For instance, violating a
requirement that the person mixing the pesticide must wear protective
clothing, while an unlawful act that can be enforced under FIFRA, is not
related to the protection of water quality, and therefore not a relevant
FIFRA requirement for purposes of today’s regulation.  However, a
labeling provision that governs application rates, active ingredient
concentrations and dilution requirements, buffer zones, application
locations, intended targets, times of day, temperature or other
application requirements, and thus concerns the amounts, concentrations,
and viability of substances that may potentially end up in waters of the
United States, is related to water quality.  Relevant FIFRA requirements
may appear in product labeling, FIFRA regulation, or other documents
setting forth requirements applied pursuant to FIFRA.

The application of a pesticide from a point source to waters of the
United States requires an NPDES permit only if it constitutes the
discharge of a “pollutant” within the meaning of that term in the
CWA.  EPA has evaluated whether pesticides regulated under and applied
consistent with relevant FIFRA requirements for the two circumstances
previously described fall within the terms in the CWA’s definition of
“pollutant,” and concludes that they do not.  Pesticides are not
dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt or industrial, municipal, and
agricultural waste.  See CWA section 502(6).  In addition, as described
below, the terms, “chemical waste” and “biological materials,”
also do not encompass the types of pesticide applications addressed in
today’s action.

First, such pesticides are not “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).  Pesticides applied consistent with relevant FIFRA
requirements are not “wastes” as that term is commonly defined –
on the contrary, they are products that EPA has evaluated and registered
for the purpose of controlling target organisms, and are designed,
purchased, and applied to perform that purpose.  See Fairhurst v.
Hagener, 422 F.3d at 1150.

	EPA also interprets the term “biological materials” not to include
biological pesticides applied consistent with relevant FIFRA
requirements.  This interpretation is both reasonable and consistent
with Congressional intent, and is supported by relevant case law.  It is
unlikely that Congress intended to include biological pesticides applied
in the circumstances described in today's rule within the Clean Water
Act's definition of "pollutant."  To do so would mean that biological
pesticides are pollutants, while chemical pesticides used in the same
circumstances are not.  Since biologically and chemically based
pesticides applied consistent with relevant requirements adopted by EPA
under FIFRA are both EPA-evaluated products, treating them differently
under the Clean Water Act is not warranted.  Moreover, at the time the
Act was adopted in 1972, chemical pesticides were predominant.  It is
therefore not surprising that Congress failed to discuss whether
biological pesticides were to be covered by the Act.  The fact that more
biological pesticides have been developed since passage of the Act in
1972 does not justify expanding the reach of the NPDES permit
requirement when there is no evidence that Congress intended the CWA to
regulate biological pesticides in a manner different from chemical
pesticides.  Finally, biological pesticides in use today are generally
reduced-risk products that have a narrower range of potential adverse
environmental effects compared to many chemical pesticides.  For this
reason it would not make sense, and would be inconsistent with the goals
of the Clean Water Act, to discourage the use of biological pesticides
by requiring applicators of these products to obtain an NPDES permit
when chemical pesticides have no such requirement.

In cases in which courts have found specific biological materials to be
“pollutants” under section 502(6) the substances at issue were waste
materials discharged from a point source.  See Concerned Area Residents
for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994)
(liquid manure is solid waste, sewage, biological material, and
agricultural waste and is therefore a pollutant); USPIRG v. Atlantic
Salmon, 215 F.Supp. 2d 239, 247-49 (D. Maine 2002) (non-native fish
escaped from net pens and salmon feces and urine exiting net pens are
biological materials; pharmaceuticals in excess salmon feed exiting net
pens are chemical wastes), National Wildlife Federation v. Consumers
Power Co., 862 F.2d 580, 585 (6th Cir. 1988) (live fish, dead fish, and
fish remains released from hydro-electric facility’s turbine are
biological materials), U.S. v. Plaza Health Laboratories, Inc., 3 F.3d
643, 646 (2d Cir. 1993), cert. denied 114 S.Ct. 2764 (1994) (discarded
vials of human blood are pollutants).  In none of these cases, which
were cited by commenters, did a court find that a product applied for
its intended purpose consistent with applicable EPA requirements was a
“biological material” and therefore a pollutant under the CWA.

The Ninth Circuit Court of Appeals in Assn. to Protect Hammersley, Eld,
and Totten Inlets (APHETI) v. Taylor Resources, Inc., 299 F.3d 1007,
1017 (9th Cir. 2002), cited to several of these cases as being in accord
with its finding that “biological materials” means the waste product
of a human or industrial process.  The APHETI court based its decision
that mussel shells, mussel feces, and other materials emitted from
mussels grown on harvesting rafts are not pollutants on the doctrine of
ejusdem generis.  The court found that the more specific terms in the
CWA’s definition of “pollutant” support an understanding of the
more general term “biological materials” as waste material of a
human or industrial process.  Id. at 1015.  The court went on to analyze
Congress’ intent in enacting the CWA and found that the purpose of the
statute further supported such an interpretation of biological materials
in that case.  Id. at 1016.

Furthermore, EPA’s interpretation that biological and chemical
pesticides are not pollutants is reasonable because both types of
pesticides must comply with FIFRA registration requirements.  EPA
reviews and evaluates these pesticides and authorizes their use, subject
to the limitations and requirements of the EPA registration.

Today’s action applies only to the specific categories of pesticide
applications addressed in the text of the regulation.  EPA notes that
pesticides are waste materials, and therefore pollutants under the Act,
when contained in a waste stream, including storm water regulated under
section 402(p) or other industrial or municipal discharges.  In those
circumstances, an NPDES permit may be required if the pesticides are
discharged into a water of the United States from a point source.

In addition, if there are residual materials resulting from pesticides
that remain in the water after the application and its intended purpose
(elimination of targeted pests) have been completed, these residual
materials that have been applied to water are also pollutants under CWA
section 502(6) because they the residual materials are the are wastes of
the pesticide application.  Such residuals include excess amounts of
pesticide that do not reach a target organism and materials that remain
after the application has completed its intended task.   These materials
are waste materials, as that term is commonly defined, because they are
substances that are “no longer useful or required after the completion
of a process.”   The New Oxford American Dictionary 1905, supra.  See
also Fairhurst v. Hagener, 422 F.3d 1146.  

However, pesticide applications under the circumstances described above
and consistent with FIFRA do not require NPDES permits, even if the
application leaves residual materials which are “pollutants” under
the Act in waters of the United States.  Section 301(a) of the CWA
prohibits the “discharge of any pollutant” except in compliance with
certain other provisions of the Act.  The CWA defines “discharge of a
pollutant” to mean “any addition of any pollutant to navigable
waters from any point source.”  Thus, at the time of discharge to a
water of the United States, the material in the discharge must be both a
pollutant, and from a point source.  In this case, while the discharge
of the pesticide is from a point source (generally a hose or an
airplane), it is not a pollutant at the time of the discharge.  The
material added by a pesticide applicator to or over, including near,
water is not a pollutant for the reasons stated above.  Even though the
pesticide may become a “pollutant” at a later time (e.g., after the
pesticide product has served its intended purpose), a permit is not
required for its application because it did not meet both statutory
prerequisites (pollutant and point source) at the time of its discharge
into the water.  Instead, the residual should be treated as is a
nonpoint source pollutant, potentially subject to CWA programs other
than the NPDES permit program (e.g., listing and TMDL development
pursuant to CWA section 303(d)).

Today’s action does not address drift over and into waters of the
United States from pesticide applications to land.  As discussed below,
EPA has established a multi-stakeholder workgroup under one of its
federal advisory committees to explore policy issues relating to the
terrestrial application of pesticides that may drift into aquatic
environments.  EPA also notes that today’s discussion of the terms
“chemical waste” and “biological materials” applies only for CWA
purposes and is not intended to address the use of those terms or
similar terms under any other statutes the Agency administers.

V.  	Public Comment

EPA first solicited comment on its interpretation of “pollutant”
under the CWA with respect to certain pesticide applications on August
13, 2003.  See 68 FR 48385 (Aug. 13, 2003).  EPA provided a second
opportunity for public comment on its interpretation when it proposed
the regulation on which the Agency is today taking final action.  See 70
FR 5093 (Feb. 1, 2005).  EPA received many comments on its
interpretation during both comment periods, from a wide range of
interested parties including pesticide manufacturers and applicators,
public health control agencies, State agricultural agencies, State
environmental agencies, environmental groups, human health advocates,
farming interests, and other members of the public.  Many commenters
supported EPA’s interpretation, while others opposed it as
inconsistent with the CWA.

	The record for today’s action contains EPA’s detailed responses to
comments received during both public comment periods.  See Docket ID No.
OW-2003-0063 at http://www.regulations.gov.  EPA is providing a summary
below of its responses to some of the significant comments received.

A.  Scope of Regulation

Many of the commenters who supported EPA’s proposed rule also
recommended that EPA broaden the scope of the final rule to cover all
pesticide applications, including agricultural applications over land,
that are conducted in accordance with the relevant requirements of
FIFRA.  This final rule addresses only the following two circumstances
described in the proposed rule:  the application of aquatic pesticides
directly to waters of the United States, and the application of
pesticides to control pests over, including near, such waters.

In the meantime, EPA will continue to follow its long-standing practice
of not requiring NPDES permits for agricultural pesticide applications
that are conducted in compliance with relevant FIFRA requirements.  EPA
is continuing to consider the applicability of the CWA to situations
other than those EPA is addressing in today’s action where pesticides
applied in accordance with relevant FIFRA requirements may reach and
enter waters of the United States, including drift of pesticides applied
aerially over land.  Therefore, EPA does not believe it is appropriate
to broaden the scope of the regulation to include additional types of
pesticide applications at this time.

To assist the Agency’s consideration of these issues, EPA has
established a workgroup under the existing Pesticide Program Dialogue
Committee (PPDC) (an advisory committee chartered under the Federal
Advisory Committee Act (FACA)) to address issues involving pesticide
spray drift from agricultural and other applications.  The goals of the
workgroup are the following: 1) improving understanding of the
perspectives of all stakeholders regarding pesticide spray drift; 2)
finding common ground for further work toward minimizing both the
occurrence and potential adverse effects of pesticide spray drift; 3)
developing options for undertaking work where common ground exists; and
4) exploring the extent of drift, even with proper usage, and the range
and effectiveness of potential responses to unacceptable levels of
off-target drift.  The spray drift workgroup will provide advice to EPA
through the PPDC.

The PPDC is a FACA-authorized forum for a diverse group of stakeholders
to provide feedback to the Agency’s pesticide program on various
pesticide regulatory, policy, and program implementation issues.  Topics
of discussion at past meetings have included the disclosure of inert
ingredients, registration review, nonanimal testing, antimicrobial
pesticides, endangered species, reduced risk pesticides, labeling, minor
uses, ecological standards, fees for service, experimental use permits,
environmental marketing claims, outreach to the public, and several
implementation issues emanating from the Food Quality Protection Act of
1996.

Members of the PPDC include representatives of environmental and public
interest groups, pesticide manufacturers and trade associations, user
and commodity groups, public health and academic institutions, federal
and State agencies, and the general public.  Participants in the Spray
Drift workgroup reflect the range of stakeholder interests represented
on the full PPDC, and also include members with backgrounds in water
quality issues.  By operating under the PPDC, the Spray Drift workgroup
will comply with FACA procedural requirements including timely public
notice of meetings, public access to meetings and opportunity for the
public to comment; public availability of documents considered by the
workgroup; and attendance of a federal officer or employee at each
meeting.

B.  Sufficiency of FIFRA to Address Analyze Water Quality Impacts of
Pesticide Applications

  SEQ CHAPTER \h \r 1 Many commenters objected to the proposed rule on
the basis that EPA’s regulation of pesticides under FIFRA does not
adequately protect water quality, and thus pesticide applications should
require an NPDES permit.  These commenters alleged both legal and policy
shortcomings of FIFRA.  They also asserted that EPA’s interpretation
is improper because FIFRA does not preempt CWA requirements and because
EPA lacks authority to exempt categories of discharges from the CWA’s
prohibition against discharges without an NPDES permit. 

These commenters may have misinterpreted the legal interpretation that
provides the basis for today’s action.  First, EPA is not expressly or
by implication repealing any provision of the CWA in today’s action,
nor is the Agency arguing that FIFRA registration preempts CWA section
301(a) or section 402(a).  Moreover, EPA is not arguing that
registration under FIFRA or compliance with FIFRA requirements replaces
or satisfies an otherwise applicable requirement under the CWA to obtain
an NPDES permit.  Compliance with relevant FIFRA requirements in
today’s regulation is not intended to mean that EPA believes
compliance with FIFRA satisfies any requirement under the CWA.  Nor is
EPA exempting from section 301(a) or section 402(a) any categories of
pollutants, because the pesticide applications at issue here are not in
fact pollutants under the Act.  The proscription in the CWA against
discharging pollutants from point sources to waters of the United States
except in compliance with section 402 continues to apply.  Rather, EPA
is exercising its authority to interpret a term in a statute it
administers.  EPA is clarifying that pesticides applied to or over,
including near, water for their intended purpose consistent with all
relevant requirements under FIFRA in the circumstances specified in the
rule are not, at the time of application, “pollutants” under the
CWA, and therefore applications are not discharges required to obtain
permits.

EPA’s review, evaluation, and registration of pesticides used in these
two circumstances further demonstrate that this is a reasonable
interpretation, consistent with Congressional intent.  EPA’s
regulatory programs under FIFRA provide support for the Agency’s
conclusion that the pesticides applied to or over, including near, water
are not wastes (and therefore not pollutants) and serve as an indicator
of when a pesticide is being applied as a product for its intended,
beneficial purpose.  Under FIFRA, EPA receives applications from people
who wish to sell and distribute pesticides.  The Agency may approve and
issue a registration for a product if EPA determines that the product
will not cause “unreasonable adverse effects on the environment,”
which is defined as “any unreasonable risk to man or the environment,
taking into account the economic, social and environmental costs and
benefits of the use of [a] pesticide . . . .”  FIFRA Section 3(c)(5). 
In other words, the Agency may register a pesticide only if the product
provides economic, social, and environmental benefits that outweigh
risks from its use.  As part of FIFRA registration, EPA may establish
requirements, which are typically contained in the label for the
pesticide, to ensure that when used, it will not cause unreasonable
adverse effects on the environment, including the aquatic environment. 
Thus, registration and use of a pesticide in accordance with its
approved labeling or other relevant FIFRA requirements indicates that a
pesticide is a product intended to be used for a beneficial purpose that
is authorized by EPA and is not a waste.  For these reasons, comments
regarding the adequacy of EPA’s pesticide regulatory program do not
pertain to the legal interpretation of whether a pesticide is a
“chemical waste” or a “biological material” for purposes of the
definition of “pollutant” under the CWA.  

Nonetheless, it is important to note that EPA disagrees with
commenters’ concerns that EPA’s registration process does not take
into account local conditions, existing water quality standards and use
designations, synergistic effects of multiple pesticides, inert
ingredients, non-target aquatic organisms, and the effect of multiple
applicators in the same area.  The regulatory and non-regulatory tools
under FIFRA provide means of addressing water quality problems arising
from the use of pesticides.  In particular, the pesticide registration
and re-registration processes consider impacts on both human health from
the presence of pesticides in drinking water, and on aquatic resources
(e.g., fish, invertebrates, plants, and other species in both fresh
water, estuarine, and marine environments).  EPA requires a pesticide
company to submit a substantial body of data in support of an
application for registration.  EPA then supplements this required
database with information obtained through a systematic search of the
open literature on the ecotoxicity of environmental substances.  EPA
compares the estimated environmental concentrations expected to result
from use of a pesticide with toxicity values observed in required
studies and studies from the open literature.  This database provides
sufficient information to conduct assessments of potential ecological
and human health risks, including the identification of toxicologically
significant degradation products and/or metabolites.  For additional
information on EPA’s approach to ecological risk assessment in
general, and endangered and threatened species in particular, see: 
http://www.epa.gov/espp/consultation/ecorisk-overview.pdf

C.  EPA’s Interpretation of the Term “Pollutant” under the CWA

Some commenters claimed that EPA’s interpretation of the term
“pollutant” is inconsistent with the Clean Water Act, with relevant
case law, or with prior Agency statements.  EPA disagrees with the
commenters and believes its interpretation of the term “pollutant”
is reasonable and consistent with the language and legislative intent of
the Clean Water Act.  As described above, pesticides applied in the
circumstances addressed in today’s regulation, in compliance with
FIFRA, for their intended purpose, are not pollutants under the Act. 
EPA also disagrees with commenters that the term “biological
materials” can only be read to include biological pesticides applied
in the circumstances addressed by today’s regulation – i.e.,
application to or over waters of the United States consistent with
relevant requirements of FIFRA.  EPA’s analysis of the terms
“chemical waste” and “biological materials” in the circumstances
addressed by today’s regulation is described in more detail above.

In addition, the Ninth Circuit Court of Appeals recently held that
pesticides that do not generate a residue when applied directly to a
lake to eliminate a non-native fish species are not “pollutants”
under the CWA because they are not chemical wastes.  Fairhurst v.
Hagener, 422 F.3d 1146 (9th Cir. 2005).  In so holding, the court
considered the plain meaning of the term “chemical waste” and noted
that its analysis was in accord with EPA’s interpretation of the term
in its July 2003 Interim Statement, and that EPA’s interpretation is
“reasonable and not in conflict with the expressed intent of
Congress.”  Id. at 1149-50.  Today’s regulation is based on the same
interpretation EPA first articulated in the Interim Statement, and is
consistent with the Fairhurst court’s holding.

Moreover, EPA’s interpretation is not inconsistent with Talent and
Forsgren as some commenters have asserted.  As explained below, these
cases do not interpret the term “pollutant” as including the
pesticide applications addressed in today’s rule.

I  SEQ CHAPTER \h \r 1 n Headwaters v. Talent, the Ninth Circuit
reversed the District Court’s dismissal of a CWA citizen suit against
an irrigation district alleging that application of the herbicide
Magnacide H to irrigation canals to control aquatic weeds and vegetation
required an NPDES permit.  The District Court had concluded that the
application of the pesticide was adequately regulated under FIFRA, and
further regulation under the CWA was unnecessary.  Headwaters v. Talent,
No. 98-6004-AA slip op. at 12 (D. Ore. Feb. 1, 1999).  The Ninth Circuit
found that residual from the application of Magnacide H was a pollutant
in this case and that registration of the herbicide under FIFRA did not
preclude applicability of the CWA.  Headwaters v. Talent, 243 F.3d at
532.  This conclusion is consistent with EPA’s interpretation.  As
described above, EPA agrees that residual materials from pesticide
applications are “pollutants” under the Act.  In addition, the
irrigation district in Talent failed to comply with a FIFRA registration
requirement to contain the herbicide-laden water in an irrigation canal
for a specified number of days.  EPA’s interpretation codified in
today’s action is that pesticides applied in the circumstances
described in the rule are not “pollutants” where they are applied
consistent with relevant FIFRA requirements.  Thus, EPA’s
interpretation is consistent with the result reached by the Talent
court.

In League of Wilderness Defenders v. Forsgren, the Ninth Circuit held
that the aerial application of insecticides over National Forest lands
in Washington and Oregon to control a predicted outbreak of the Douglas
fir tussock moth required an NPDES permit.  However, the court in
Forsgren stated incorrectly that the parties in the case did not dispute
that the insecticides met the CWA definition of “pollutant.”  League
of Wilderness Defenders v. Forsgren, 309 F.3d at 1184, n.2.  In fact,
the Forest Service in its brief before the District Court reserved its
arguments on that particular issue.  Because the Ninth Circuit
erroneously assumed that the question of whether the applications were
pollutants was not in dispute, it did not analyze the issue but simply
stated that they were.  Id. at 1185.  The issue that the Forsgren court
did analyze in detail was whether the airplanes from which the
insecticides were sprayed are point sources under the CWA – a
different issue from that addressed in today’s interpretation.

Commenters also claimed that EPA’s interpretation is inconsistent with
the Clean Water Act because the purpose for which a pesticide is applied
is not relevant to the question of whether it is a pollutant under the
Act.  The commenters pointed primarily to two cases – Hudson River
Fisherman’s Assn. v. City of New York, 751 F.Supp. 1088 (S.D.N.Y.),
affd., 940 F.2d 649 (2d Cir. 1991), and Minnehaha Creek Watershed
District v. Hoffman, 597 F.2d 617 (8th Cir. 1979) – as supporting
their assertion.  However, both these cases are distinguishable from
EPA’s interpretation.

In Minnehaha Creek, the court was interpreting the terms “rock, sand,
[and] cellar dirt” in the definition of “pollutant” in CWA Section
502(6).  The federal appellants in that case appealed a District Court
decision finding that the U.S. Army Corps of Engineers did not have
jurisdiction under CWA Section 404 over the placement of riprap and the
construction of dams in Minnehaha Creek and adjacent Lake Minnetonka. 
The District Court’s decision was based on its conclusion that the
creek and the lake were not navigable waters of the United States and
that while the riprap and construction materials were “rock and
sand,” the activities at issue in the case were not within the purview
of the Act because they did not significantly affect water quality. 
Minnehaha Creek Watershed District v. Hoffman, 449 F.Supp 876, 886 (D.
Minnesota 1978).  The Eighth Circuit disagreed and held that a
significant alteration in water quality need not be demonstrated for a
substance to be a pollutant.  Minnehaha Creek Watershed District v.
Hoffman, 597 F.3d at 626-27.

The Eighth Circuit stated in Minnehaha Creek that it found “no
justification in the District Court’s determination that whether the
discharge of a particular substance listed in s[ection] 502(6)
constitutes the discharge of a ‘pollutant’ under the Act depends
upon the purpose for which the discharge is made.”  Id. at 627,
emphasis added.  EPA notes that nowhere in its opinion does the District
Court reach such a conclusion.  In any case, EPA is not concluding that
the question of whether a substance is a pollutant depends on the
specific purpose for which it is discharged.  Rather, EPA is
interpreting what specific terms in section 502(6) mean in the context
of certain pesticide applications.

The Second Circuit Court of Appeals decision in   SEQ CHAPTER \h \r 1
Hudson River Fishermen’s Assn. v. City of New York is also
distinguishable from the circumstances addressed in today’s rule.  In
that case, the District Court held that discharges of chlorine and
aluminum sulfate (alum floc) from an aqueduct into a reservoir were
discharges of pollutants requiring an NPDES permit.  First, this case
involved the discharge of alum floc from a point source at a point when
it was a “chemical waste” and, therefore, consistent with EPA’s
interpretation, properly constituted a pollutant under the statute. 
Hudson River Fishermen’s Assn. v. City of New York, 751 F.Supp 1088,
1102.  In contrast, today’s rule addresses certain pesticides which
are being applied in compliance with relevant FIFRA requirements and,
for the reasons described above, are not pollutants.

Moreover, the court’s holding that chlorine was a pollutant also
referred to the chlorine in the aqueduct at the time it discharged into
the reservoir, not at the time it was first added to the water.  The
court held that the chlorine was a pollutant, no matter how useful it
may earlier have been, citing to the Eighth Circuit’s decision in
Minnehaha Creek.  Id. at 1101.  Similarly, EPA is not concluding that
the question of whether substances listed in section 502(6) are
pollutants depends on the purpose for which they are discharged. 
Rather, EPA is interpreting what specific terms in section 502(6) (terms
other than those addressed in Minnehaha Creek) mean in the context of
these two types of pesticide applications.

Finally, while EPA’s interpretation is not inconsistent with either
Hudson River or Minnehaha Creek, it is further supported by the Ninth
Circuit’s decision in Fairhurst v. Hagener.  In Fairhurst, the Ninth
Circuit specifically considered the purpose for which the pesticide was
applied – the same factor commenters claim is not relevant under
Hudson River and Minnehaha Creek – and the fact that it was applied
consistent with the product’s FIFRA label, in concluding that it was
not a pollutant under the CWA.  Fairhurst v. Hagener, 422 F.3d 1146,
1150 (“Because intentionally applied and properly performing
pesticides are not ‘pollutants,’ a potential discharger is not
required to secure an NPDES permit for such pesticides before
discharge.”) 

Some commenters also claimed that EPA’s interpretation is inconsistent
with positions taken by the government in several amicus curiae briefs
related to the issues addressed by the interpretation.  As mentioned
above, these briefs reflected the government’s evaluation of the law
in the context of the specific factual situations at issue and did not
result from the deliberative consideration through an administrative
process, as today’s rule does.  As such, the briefs were not a
comprehensive statement of EPA’s legal position on the precise
questions addressed in today’s rule, nor did they reflect the exercise
of EPA’s legal and policy judgment after consideration of public
comments.  See Memorandum from Ann R. Klee to Benjamin Grumbles and
Susan Hazen, “Analysis of Previous Federal Government Statements on
Application of Pesticides to Waters of the United States in Compliance
with FIFRA,” Jan. 24, 2005.

VI.  Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review

	Under Executive Order (EO) 12866   SEQ CHAPTER \h \r 1 (58 FR 51735,
October 4, 1993), this action is a "significant regulatory action.” 
SEQ CHAPTER \h \r 1  because it raises novel legal or policy issues
arising out of legal mandates, the President’s priorities, or the
principles set forth in the Executive Order.  Accordingly, EPA submitted
this action to the Office of Management and Budget (OMB) for review
under EO 12866 and any changes made in response to OMB recommendations
have been documented in the docket for this action.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.  This
rule merely identifies 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 an 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 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
in 40 CFR 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 rule on small
entities, small entity is defined as: (1) A small business based on
Small Business Administration (SBA) size standards at 13 CFR 121.201;
(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 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
is identifying 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, this action will not
impose any requirement on any small entity.  Furthermore, though
pesticide residuals from the applications covered by this rule are
pollutants, the application of pesticides that leave a residue do not
require NPDES permits under the CWA.  Other relevant provisions in the
CWA are not affected by today’s action.  Therefore, this decision does
not impose any new requirements on small entities.  

D. Unfunded Mandates Reform Act

 	Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 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 rule does 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.  Thus, today's 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 rule
is not subject to the requirements 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 final rule does not have federalism implications.  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.  EPA is merely identifying 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.  Thus, Executive Order 13132 does not apply
to this rule.  

  SEQ CHAPTER \h \r 1 In the spirit of Executive Order 13132, and
consistent with EPA policy to promote communications between EPA and
State and local governments, EPA specifically solicited comment on the
proposed rule from State and local officials.  EPA additionally
consulted with state officials in the development of the final rule. 
Especially important were consultations regarding the manner in which
States in the Ninth Circuit currently permit pesticides in response to
the Talent decision and how states use TMDLs and other authorities to
address pesticide residuals.  

F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments

  SEQ CHAPTER \h \r 1 Executive Order 13175, entitled “Consultation
and Coordination with Indian Tribal Governments” (65 FR 67249,
November 6, 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.” 
“Policies that have tribal implications” is defined in the Executive
Order to include regulations that have “substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.”   

  SEQ CHAPTER \h \r 1 This final 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. 
EPA is merely identifying 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.  
Thus, Executive Order 13175 does not apply to this rule.   SEQ CHAPTER
\h \r 1    SEQ CHAPTER \h \r 1 Moreover, in the spirit of Executive
Order 13175, and consistent with EPA policy to promote communications
between EPA and tribal governments, EPA specifically solicited comment
on the proposed rule from tribal officials.  

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 regulation only interprets the legal scope of the NPDES
permit requirement under the CWA and does not change how pesticide
applications are addressed under FIFRA.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, “Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use” (66 FR 28355 (May 22, 2001)).  The only effect of this rule 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. 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 rulemaking
does not involve technical standards.

J.  Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States.  EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.  A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action is not a “major rule” as defined by 5 U.S.C. 804(2). 
This rule will be effective [INSERT EFFECTIVE DATE].

List of Subjects in 40 CFR Part 122

	

Environmental protection, administrative practice and procedure,
confidential business information, hazardous substances, reporting and
recordkeeping requirements, water pollution control.

Dated:

Stephen L. Johnson

Administrator

For the reasons set forth in the preamble, chapter I of title 40 of the
Code of Federal Regulations is 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.

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

§ 122.3  Exclusions.

*  *  *  *  *

(h)  The application of pesticides 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 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, where a
portion of the pesticides will unavoidably be deposited to waters of the
United States in order to target the pests effectively; 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 or near water for control of adult mosquitoes or other
pests.

   The remaining language of the definition of “pollutant” in
Section 502(6) is as follows, and is not relevant to today’s action: 
“The term does not mean (A) “sewage from vessels” within the
meaning of Section 312 of this Act; or (B) water, gas, or other material
which is injected into a well to facilitate production of oil or gas, or
water derived in association with oil or gas production and disposed of
in a well, if the well used either to facilitate production or for
disposal purposes is approved by authority of the State in which the
well is located, and if such State determines that such injection or
disposal will not result in the degradation of  ground or surface water
resources.”

   On March 29, 2002, EPA issued an Interpretive Statement and Regional
Guidance on the Clean Water Act’s Exemption for Return Flows from
Irrigated Agriculture, which clarified that the application of an
aquatic herbicide consistent with the FIFRA labeling to ensure the
passage of irrigation return flow is a nonpoint source activity not
subject to NPDES permit requirements under the Clean Water Act.  This
regulation does not address the March 2002 guidance.

  EPA’s General Counsel issued a memorandum on September 3, 2003,
addressing the Agency’s views on the effect of the Forsgren decision. 
Specifically, EPA stated that it did not acquiesce outside the Ninth
Circuit with the court’s decision regarding the application of EPA
regulation defining “silvicultural point source” at 40 CFR
122.27(b)(1), and would continue to follow its longstanding
interpretation of the statute and these regulations.  Memorandum from
Robert E. Fabricant to Regional Administrators, “Interpretive
Statement and Guidance Addressing Effect of Ninth Circuit Decision in
League of Wilderness Defenders v. Forsgren on Application of Pesticides
and Fire Retardants,” Sept. 3, 2003.  

DRAFT   9/18/06	

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