                          Response to Public Comments
                                       
                 EPA NPDES 2021 Pesticide General Permit (PGP)
                                       
                                       
                                       
                                       
                                       
                               September 8, 2021

                                       
                       Docket ID #: EPA-HQ-OW-2020-0005

On September 8, 2021, EPA's ten regions signed the final NPDES 2021 Pesticide General Permit (PGP). The draft 2021 PGP was available for public review between January 15, 2021 and March 16, 2021. Comments were accepted electronically via Docket ID EPA-HQ-OW-2020-0005 at www.regulations.gov, by mail, and by hand delivery. EPA received 8 sets of comments on the draft permit (total comments on regulations.gov is 11, but 2 comments are entirely outside the scope of the permit, and 1 comment was withdrawn). This document contains EPA's responses to them. This final response to comments document consists of six comment essays, ordered by topic.


Table of Contents
PGP Comment Response Approach Essay	1
PGP Comment Response Scope Essay	9
PGP Comment Response Endangered Species Act (ESA) Consultation Essay	15
PGP Comment Response Permit Conditions Essay	18
Notices of Intent (NOI)	18
Technology Based Effluent Limitations	21
Water Quality Based Effluent Limitations	22
Pesticide Discharge Management Plan	23
Corrective Action	24
Recordkeeping and Annual Reporting	25
Appendices	26
PGP Comment Response: NPDES e-Reporting Tool (NeT)	28
PGP Comment Response Miscellaneous Comments Essay	29
General Miscellaneous	29
Fact Sheet	30
Data	31
Water of the United States Definition	32
National Water Quality Criteria	32
Synergistic effects	32
Minimize Pesticide Use	33


                      PGP Comment Response Approach Essay
      The following is EPA's response to comments supporting or opposing permitting for pesticide discharges, and EPA's response to suggestions provided by commenters on EPA's approach in permitting pesticide discharges under the Pesticide General Permit (PGP). Several commenters stated their opposition to permitting pesticide discharges under the Clean Water Act (CWA), their conviction that the Sixth Circuit Court of Appeals erred in its 2009 ruling (Nat'l Cotton Council of Am., et al. v. EPA, 553 F.3d 927 (6th Cir. 2009)) and their support for legislative proposals to overturn the requirement. One of these commenters also stated that requiring a National Pollutant Discharge Elimination System (NPDES) permit for pesticide discharges is an unnecessary regulatory burden on pesticide users, federal and state agencies, and businesses that apply pesticides to protect public health. EPA disagrees with this commenter. NPDES permits are required for point source discharges to waters of the United States of biological pesticides, and of chemical pesticides that leave a residue, consistent with the holding in the Sixth Circuit Court of Appeals' decision to vacate the 2006 NPDES Pesticides Rule. Comments on the correctness of the Sixth Circuit Court of Appeals' 2009 ruling and legislation to legislatively overturn the Court's decision are outside the scope of this EPA action.
      As discussed in the Fact Sheet (Part I.3), on November 27, 2006, EPA issued a final rule (2006 NPDES Pesticides Rule) clarifying two specific circumstances in which an NPDES permit was not required in order to apply pesticides to or around water. On January 7, 2009, the Sixth Circuit Court of Appeals vacated EPA's 2006 NPDES Pesticides Rule and held that the CWA unambiguously includes "biological pesticides" and "chemical pesticides" with residuals within its definition of "pollutant." National Cotton Council of America, et al v. EPA, 553 F.3d 927 (6th Cir. 2009). Consistent with the Court's decision to vacate the 2006 NPDES Pesticides Rule, NPDES permits are required for discharges to waters of the United States of biological pesticides, and of chemical pesticides that leave a residue. EPA developed the PGP to implement the CWA in a manner that does not interfere with Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) implementation yet still meets CWA requirements consistent with the Court's decision requiring NPDES permits for certain discharges from the application of pesticides to waters of the United States. The PGP acts as a shield from CWA enforcement actions and citizen lawsuits, provided all of the permit requirements are met. EPA has developed a general permit in part to reduce administrative burdens (economic costs) associated with individual permits. However, if Operators do not feel that permit coverage under the PGP is appropriate for their pesticide applications, they may apply for individual permit coverage.
      One commenter noted that the EPA's Draft 2021 PGP does not meet the requirements of a general permit because the Fact Sheet points to only one of the five criteria under 40 CFR 122.28 to justify the use of a general permit. EPA acknowledges that in the Fact Sheet, the agency incorrectly used "or" instead of "and" for the criteria that must be met under 40 CFR 122.28, in order to use a general permit. EPA has corrected the Fact Sheet to clarify that the application of biological and chemical pesticides that leave a residue is a category of dischargers that meet all the criteria under 40 CFR 122.28.  EPA otherwise disagrees with the commenter that the agency has failed to show that the PGP meets all the requirements for a general permit, including the requirements that the discharges involve the same or substantially similar types of operations, require the same or similar monitoring, and require the same effluent limitations. PGP coverage extends to discharges resulting from the application of biological pesticides, or chemical pesticides that leave a residue into waters of the United States that can be applied by one of four use patterns. These use patterns were developed to include discharges that are similar in type and nature, and therefore represent the type of discharges and expected nature of the discharges covered under this permit. EPA has determined that there is sufficient overlap in operations, pollutants, and permit requirements that the discharges covered by the PGP may be properly permitted under the same general permit.  Several commenters stated that additional regulation of pesticide application under the CWA are duplicative of requirements under FIFRA and does not provide appreciable environmental benefits. EPA disagrees that the PGP and FIFRA requirements are duplicative. The CWA and FIFRA requirements operate independently of each other. FIFRA authorizes EPA to review and register pesticides for specified uses. The NPDES PGP does not override or conflict with existing FIFRA labeling requirements. The PGP has additional requirements for pesticide applications to meet applicable CWA regulatory and statutory requirements, such as meeting technology-based effluent limitations (TBEL) and water quality-based standards (WQBEL). A primary goal of the CWA is to reduce or eliminate point source discharges of pollutants to our Nation's waters. This goal is achieved in part through NPDES permits, which are designed to eliminate or minimize discharges of pollutants to waters of the United States through implementation of best available technology. EPA's PGP, as well as similar NPDES permits issued by the states, helps reduce pesticide discharges to waters of the United States by including requirements that go beyond what is generally required under the FIFRA label. EPA expects that the PGP will minimize discharges of pesticides to the aquatic environment. Reduced discharges of these pesticides to surface waters may be associated with a variety of benefits, including human health improvements, increased recreational opportunities, and improved ecosystem functions. The most significant benefits are those described below. 
The PGP minimizes the discharges of pesticides to waters of the United States by requiring use of: 
 Only the amount of pesticide necessary to control the target pest; 
 Management measures, such as calibration and cleaning of pesticide application equipment; 
 For the most significant pesticide applications, Integrated Pest Management (IPM) principles, such as evaluating pest management options in lieu of pesticide application, including documenting procedures for such in a written plan; and 
 A corrective action requirement to address any identified deficiencies in meeting permit terms. 
The PGP also provides EPA and the states with additional information to assess the impacts of pesticide applications on water quality, which includes: 
 Monitoring for and reporting any adverse incidents resulting from pesticide application discharges; and 
 Documentation and reporting of the most significant pesticide applications covered under the permit, including location of discharges and types of pesticides discharged.
The CWA also provides for larger fines than FIFRA and it also allows for citizen suits, both of which could give a further incentive to comply. Finally, regardless of any perceived overlap between the regulation of pesticide application under the CWA and FIFRA, as determined by the Sixth Circuit, the CWA applies to certain pesticide applications regardless of their treatment under FIFRA.  
   EPA acknowledges several commenters' support of the minimal changes in the proposed 2021 PGP from the 2016 PGP. These commenters noted that no additional requirements are needed in the final 2021 PGP and one commenter agreed with the minor changes listed below that were proposed in the draft 2021 PGP:
 Removal of the out-of-date NOI provision
 Transition to NPDES e-Reporting Tool (NeT)
 Adding the term "pesticide discharges to waters of the United States from pesticide application" and "pesticide residue" to Appendix A of the permit 
 Modifying the standard permit conditions in the permit to ensure consistency with 40 CFR 122.41
 Adding Indian Country within Virginia and Indiana, and removal of the State of Idaho to Appendix C, Areas Covered.
EPA agrees. The implementation of the 2011 and 2016 PGP has been successful. EPA is not aware of any lawsuits brought against Operators discharging under EPA's PGP. The regulated community has raised very few implementation issues, which have been successfully resolved. The provisions in the 2016 PGP for pesticide applications during emergencies have been effectively implemented. Finally, Operators have generally submitted the required NOIs and Annual Reports to the agency on time and in accordance with the PGP requirements. The agency believes that the permit, as written, is protective of water quality and the environment. Therefore, the final 2021 PGP has the same conditions and requirements as the 2016 PGP except for the minor changes outlined in the Federal Register notice for the final permit. Based on available information, EPA believes the final permit reflects a reasonable compilation of information that will allow the agency to assess the adequacy of the permit, Operator compliance with the permit, and the permit's success in protecting water quality while not causing undue burden on permittees to have to gather and report detailed information on pest control practices. 
      Several commenters suggested eliminating the joint and several liability provision in the final PGP. One commenter stated that it was aware of several circumstances where Operators had to decline contracts due to legal risks imposed by the PGP. All of these commenters stated that the CWA does not include a statutory provision for attaching joint and several liability to CWA violations like other statues. EPA disagrees with comments suggesting that EPA should eliminate the provisions of the PGP that hold all entities required to obtain permit coverage responsible for a given discharge of pollutant. This general permit was developed with the understanding that there may be more than one responsible entity for a given discharge. As structured, the permit provides for sharing of responsibilities to meet the end goal of discharges being in compliance with permit requirements. 
      The NPDES regulations state that "Operators" are responsible for achieving permit compliance. Specifically, 40 CFR 122.21(b) clarifies that when an activity is owned by one person, but it is operated by another person (e.g. contractor), it is the Operator's duty to meet terms of the permit. EPA acknowledges, however, that in many instances the owner may still perform Operator duties; as such, they may still be required to obtain permit coverage, even in situations in which, for example, the owner hires a contractor to apply the pesticides to control pests. The PGP includes a definition of "Operator" in Appendix A of the permit that is intended to clarify this point, focusing on the fact that Operator control exists both at the "Decision-maker" level about how to control pests, including financial considerations, as well as at the pesticide "Applicator" level (such as calibration of pesticide application equipment). In these instances, both Operators, i.e., the Decision-Maker and the Applicator, are required to obtain NPDES permit coverage; however, the permit strives to minimize any potential duplication of effort by identifying which Operator is responsible for certain permit conditions. See Part II.3 of the Fact Sheet for further discussion. Although all Operators are responsible for complying with permit conditions, EPA separated responsibilities in the permit between Applicators and Decision-makers as a way of identifying the entity that is typically in the best position to ensure permit compliance and in order to help guide enforcement actions to the appropriate Operator when permit violations are identified. However, EPA retains the discretion, as circumstances dictate, to bring an enforcement action against all Operators involved with a specific discharge. 
      One commenter expressed concern that EPA may interpret FIFRA violations that do not involve pesticide discharges as leading to CWA violations. The commenter pointed to the language in Fact Sheet which discusses Part 1.5 of the PGP, Other Federal and State Laws. "...pesticide use inconsistent with certain FIFRA labeling requirements could result in the Operator being held liable for a Clean Water Act (CWA) violation as well as a FIFRA violation." The commenter stated that CWA liability should not be imposed for activities that do not involve pesticide discharges. EPA disagrees that the PGP purports to impose liability for activities that do not concern pesticide discharges. FIFRA violations that are not associated with a discharge are not subject to enforcement under the PGP. For a FIFRA violation to be considered a violation of the CWA, the activity must involve a discharge to waters of the United States. The Fact Sheet states: "...if Operators apply a pesticide in a manner inconsistent with any relevant water-quality related FIFRA labeling requirements such as those relating to application sites, rates, frequency, and methods, as well as provisions concerning proper storage and disposal of pesticide wastes and containers, the Operators would be in violation of the effluent limitation to minimize pesticides entering the waters of the United States." Although the FIFRA label and labeling requirements are not effluent limitations, it is illegal to use a registered pesticide inconsistent with its labeling. If Operators are found to have applied a pesticide in a manner inconsistent with any relevant water quality related FIFRA labeling requirements, this could result in the Operator being held liable for a CWA violation as well as a FIFRA violation. This is consistent with Section 402(a)(2) of the Clean Water Act, 33 U.S.C. § 1342(a)(2), which directs the Administrator to include in NPDES permits "conditions on data and information collection, reporting, and such other requirements as he deems appropriate" in order "to assure compliance with the requirements of [Section 402(a)(1) of the Act, 33 U.S.C. § 1342(a)(1)]," which addresses actual pollutant discharges. EPA has promulgated implementing permit regulations at 40 C.F.R. § 122.41 that include, among other things, monitoring, recordkeeping and reporting as well as general operation and maintenance requirements. These are to be incorporated in all NPDES permits, and they are required and necessary regulatory tools that both enable effective oversight and help prevent unlawful discharges by permittees. 
      Consequently, if an Operator applies a pesticide in a manner inconsistent with any relevant water-quality related FIFRA labeling requirements, such as exceeding label application rates, EPA will determine the appropriate enforcement response after considering the facts and circumstances surrounding the case. In some circumstances EPA may choose to pursue just the FIFRA violation or just the CWA violation. In other circumstances EPA may choose to pursue both the FIFRA and the CWA violation. The FIFRA and the CWA establish independent compliance obligations. Failure to comply with either statute constitutes separate violations of federal law. 
                       PGP Comment Response Scope Essay
      EPA received suggestions to limit activities covered under the PGP.  EPA disagrees with the suggestion. The following is a discussion of the activities covered under the PGP, and why EPA believes the covered activities are sufficient. EPA has issued the PGP to control point source discharges of biological pesticides, and chemical pesticides that leave a residue, into waters of the United States. The PGP provides one option for obtaining NPDES coverage for the discharges into waters of the United States in areas where EPA is the NPDES permitting authority. The PGP is a general permit which means it covers multiple facilities/sites/activities within a specific category for a specific period of time (not to exceed 5 years). For general permits, the permitting authority, e.g., EPA or a state, develops and issues the permit in advance, with dischargers then generally obtaining coverage under the permit through submission of a Notice of Intent (NOI). However, regulations at §122.28(b)(2)(v) provide that at the discretion of the Director (which, for the PGP, is EPA), certain discharges can be authorized under a general permit without submitting an NOI where EPA finds that an NOI would be inappropriate for such discharges. A general permit is also subject to public comment prior to issuance. EPA is the permitting authority for the geographic areas that have not been authorized by EPA to issue NPDES permits. Alternatively, an individual permit is a permit specifically tailored for an individual discharger or situations that require individual consideration. Upon receiving the appropriate permit application(s), the permitting authority, e.g., EPA or a state, develops a draft permit for public comment for that particular discharger based on the information contained in the permit application (type of activity, nature of discharge, receiving water quality). Following consideration of public comments, a final permit is then issued to the discharger for a specific time period (not to exceed 5 years) with a provision for reapplying for further permit coverage prior to the expiration date. EPA chose to issue a general permit to provide NPDES permit coverage for areas where the agency is the NPDES permitting authority with a goal of reducing burdens on pesticide dischargers. The existence of this general permit does not alter the requirement that discharges of pesticides to waters of the United States that are not covered by this permit be covered by an individual permit or another general permit. 
      In response to the impaired water eligibility requirements in Part 1.1.2.1 of the PGP, EPA received a suggestion to prohibit all discharges of pesticides to waters that are impaired for any pesticide or degradate; or for any toxic pollutant; or for pesticides generally unless a total maximum daily load has been developed that includes a wasteload allocation and where those conditions are incorporated into the permit. The commenter also noted that EPA has not evaluated the synergistic effects resulting from the combination of different pesticides or with toxic pollutants as a reason for this suggestion. EPA disagrees that this change is necessary.  In both the 2016 and 2021 PGPs, discharges to waters which are impaired for a substance which is not an active ingredient in that pesticide or a degradate of such an active ingredient are eligible for coverage. Discharges to waters impaired for temperature or some other indicator parameter, or for physical impairments such as "habitat alteration" are also eligible for PGP coverage, unless otherwise notified by EPA. Conversely, the permit is not available for the discharge of any pesticide to water that is impaired for a substance that is an active ingredient in that pesticide or a degradate of such an active ingredient. As outlined in Part 2.2.1-2.2.4 of the PGP Fact Sheet, EPA views the control of mosquitoes, aquatic weeds, and other pests to be an important public health and environmental protection issue and is maximizing the availability of the PGP for pesticide applications to limit individual permits to only those activities in need of detailed agency review. EPA continues to incorporate provisions in the final 2021 permit to accommodate pesticide applications for urgent public health and environmental protection needs, including allowing coverage for applications to impaired waters where the waterbody is impaired for something other than the specific pesticide active ingredient or degradate of such. The approach is consistent with what many commenters requested during the 2011 PGP development:  that EPA provides for some coverage to impaired waters since, in many instances, these discharges are specifically associated with activities performed to protect public health or the environment. For example, the application of pesticides to water to control algae growth that can deplete oxygen levels in water. In regards to the commenters suggestion that the PGP should not extend to discharges to waters listed as impaired generally for "pesticides," the agency further notes that it expects that as these impaired waters are further assessed, specific pesticides or classes of pesticides will be identified as the cause of the impairment, at which point dischargers will no longer be eligible to obtain permit coverage under the 2021 PGP for discharges of those named pesticide active ingredients or degradates of such. It is important to note that this permit allows EPA, based on additional information, to opt not to approve coverage under the PGP, or at a later date to require an Operator covered under the PGP to apply for coverage under an individual permit. 
      In response to the Tier 3 waters eligibility requirements in Part 1.1.2.2 of the PGP and to the permit conditions for these dischargers (for example, submit a Notice of Intent, comply with the Integrated Pest Management principles, develop a Pesticide Discharge Management Plan, and submit an annual report), a commenter agreed with the permit conditions for discharges to Tier 3 waters. The commenter suggested that the PGP should also require these permit conditions for discharges to all sensitive land and water resources recognized or otherwise designated by federal, states, and tribes (for example, National Park and wildlife refuges generally, Areas of Critical Environmental Concern designated by the Secretary of the Interior, Tier 2.5 waters, and U.S. Forest Service Roadless Areas). Tier 3 waters are identified as outstanding national resource waters and generally include the highest quality waters of the U.S. Except for certain temporary changes, water quality cannot be lowered in such waters. In broad terms, EPA's interpretation of "temporary" is on a scale of weeks to months, not years. The Tier 3 designation also provides special protection for waters of exceptional ecological significance, i.e., those which are important, unique, or sensitive ecologically. States and Tribes make the decision of which waterbodies to designate as Tier 3. EPA proposed in the 2011 PGP that Tier 3 waters should not be eligible for coverage; rather, such discharges would be required to obtain coverage under an individual permit. In its 2011 proposal, EPA acknowledged that a blanket coverage under the PGP for discharges to Tier 3 waters was inconsistent with Tier 3 anti-degradation requirements. However, EPA received many comments for the proposed 2011 PGP indicating that time sensitive pesticide applications to Tier 3 waters are routinely performed, and quick response is needed to preserve the outstanding quality of these Tier 3 waters and/or to protect public health near these waters. To address these concerns, the 2011 PGP covered discharges to Tier 3 waters for certain discharges and imposed documentation and reporting requirement for eligible Tier 3 water discharges. As such, EPA did not accept the suggestion to require additional permit conditions for other recognized or designated waters. If additional conditions are needed for discharges to other sensitive land and water resources, states and tribes, with treatment as a state, can impose certification conditions for these areas for further protection in their CWA 401 certification. It is important to note that this permit allows EPA, based on additional information, to opt not to approve coverage under the PGP, or at a later date to require an Operator covered under the PGP to apply for coverage under an individual permit. 
      One commenter asked why formal training/certification is not required for Operators given that Operators could be subject to liability for a CWA or FIFRA violation. The commenter also suggested adding a requirement for Operators to receive training on how to properly identify toxic and adverse effects on fish and aquatic plants and to recognize adverse conditions. In addition, the commenter suggested training for Operators about the potential side effects of pesticides on the soil and those organisms. EPA notes that the term Operator is defined in the PGP to include any (a) Applicator who performs the application of pesticides or has day-to-day control of the application of pesticides that results in a discharge to waters of the United States, and (b) Decision-maker who controls any decision to apply pesticides that results in a discharge to waters of the United States. There may be instances when a single entity acts as both an Applicator and a Decision-maker. Regulations under FIFRA require certification that may include training requirements for certain types of applicators and pesticides determined to be of greatest concern. Additionally, many states have state-specific training and certification requirements for pesticide applicators that go beyond those required under FIFRA.  EPA acknowledges the benefits of training and certification but does not believe that pesticides applied consistent with this permit require additional training beyond what is already required. EPA also acknowledges that effective implementation remains very important in protecting water quality and will continue to work with stakeholders to identify opportunities for education and outreach; however, inclusion of training as an enforceable component of the PGP is unnecessary.
      The commenter also asked should there be restriction placed on pesticide applications in wellhead protection areas. EPA notes that all pesticides reviewed and approved by EPA are evaluated based on their use(s) with FIFRA label requirements reflecting any special concerns associated with one or more approved uses, source water related or not. Pesticides, as part of the FIFRA registration and reregistration process, are evaluated for potential effects on drinking water sources and FIFRA label may contain additional requirements, as necessary, to protect those sources. In addition, water quality standards are developed and implemented such that compliance with standards also provides protection of drinking water sources. Thus, provisions specific to the application of pesticide in wellhead protection areas is not needed in the PGP. 
     PGP Comment Response Endangered Species Act (ESA) Consultation Essay
      EPA received comments on the EPA's Endangered Species Act (ESA) Consultation with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the "Services"). One of the commenters noted that Part 1.6 of the PGP (Federally Listed Endangered and Threatened Species and Designated Critical Habitat) is confusing as it implies Operators may need to consult with the FWS and NMFS in order to seek permit coverage. The commenter also asked if the first bullet in Part 1.6 of the PGP ("ESA Section 7 consultation that Operators have completed with FWS and/or NMFS...") should be "complied" instead of "completed." EPA has clarified Part 1.6 of the PGP and the Fact Sheet by noting that Operators seeking coverage under this permit do not have a separate obligation to consult with the FWS or NMFS under Section 7 of the ESA prior to submitting an NOI. As the federal entity issuing this permit, EPA is the entity with an obligation to consult with FWS and NMFS. However, if any consultation has been conducted between an Operator and the Services because of other obligation to consult and the results of that consultation are relevant to an Operator's expected discharge(s), then this permit obliges the Operator to comply with any additional conditions or limits on the discharge of pesticide residuals resulting from such consultation. As such, "complied" in the first bullet under Part 1.6 of the PGP is correct. 
      Another commenter urged EPA to complete ESA consultation with both the FWS and the NMFS. EPA agrees and initiated formal ESA consultation with both the FWS and the NMFS on March 2, 2021 with submission of a Biological Evaluation (BE). EPA prepared the BE (available in the PGP docket) to evaluate how the PGP may affect listed species and their critical habitat. The BE describes several instances in which the PGP "may affect" listed resources. EPA notes that it determined the final PGP will lead to increased protection of listed species and that issuance of the PGP is not likely jeopardize the continued existence of listed species or to adversely modify designated critical habitat. EPA completed consultation with NMFS on July 29, 2021. In its final Biological Opinion, NMFS determined that the PGP as proposed in 2021 is likely to jeopardize the continued existence of 24 endangered or threatened species under NMFS' jurisdiction and result in the destruction or adverse modification of critical habitat designated for Atlantic sturgeon and proposed for 15 Caribbean and Indo Pacific corals. (See NMFS Biological Opinion at Docket ID No. EPA-HQ-OW-2020-0005). EPA incorporated NMFS' reasonable and prudent alternative (RPA) elements into the 2021 PGP. NMFS found that adopting these RPA elements will avoid the likelihood of the issuance of the permit from jeopardizing the continued existence of those species or resulting in the destruction or adverse modification of critical habitat. Part 1.1.2.4 of the Fact Sheet, Part 1.1.2.4 of the Permit, and Appendix I of the Permit describe the procedures for endangered and threatened species and critical habitat protection. EPA incorporated the RPA elements into the 2021 PGP as described below: 
      a. EPA clarified Part 1.1.2.4 of the PGP by changing the phrase "not likely to adversely affect" to "not likely to result in any short or long term adverse effects..." and clarified the supporting documentation to be submitted with the Notice of Intent for the eligibility criterion selected. Appendix D, Notice of Intent form, and Appendix I, Endangered Species Procedures, are also updated to reflect changes made in Part 1.1.2.4 of the permit. 
      b. EPA amended the definition of NMFS Listed Resources of Concern in Appendix A of the permit to reflect the ESA-listed species and critical habitat in NMFS's 2021 Biological Opinion.
      c. EPA added the definition for "Take."
      d. EPA updated Appendix I of the PGP, Endangered Species Procedures, to include list of pesticides that a NMFS' biological opinion has determined the labeled use would jeopardize the continued existence of ESA-listed species and/or adversely modify designated critical habitat.
While EPA has not yet completed final consultation with FWS, EPA's decision to issue this permit while consultation is ongoing is consistent with section 7(d) of the Endangered Species Act (ESA) because issuance of the permit does not foreclose either the formulation by the FWS, or the implementation by EPA, of any alternatives that might be determined in the consultation to be necessary to comply with section 7(a)(2) of the ESA. If consultation reveals new information warranting different effluent limits or conditions to protect listed species or critical habitat, EPA retains the authority to modify this permit under 40 C.F.R. §122.62(a)(2) to incorporate those limits or conditions. (See the ESA Section 7(d) memo at Docket ID No. EPA-HQ-OW-2020-0005).
      A few commenters suggested that EPA undergo a new public notice and comment period if there will be changes to PGP requirements as result of the outcomes from the litigation on the Endangered Species Act consultation and FIFRA or program decision. EPA acknowledges the comments. If EPA is required to amend the PGP as a result of litigation or ESA consultation, EPA will follow all applicable procedures including any applicable public participation requirements. 
      
                 PGP Comment Response Permit Conditions Essay
      Following is EPA's response to comments on the permit conditions in the PGP and responses to suggestions provided by commenters. In general, no commenters opposed any of the permit conditions in the PGP, but rather requested clarifications or suggestions and many commenters support not changing the permit conditions. EPA notes that this permit is developed with the following goals: 1) not causing undue burden upon pesticide applicators; 2) not including redundant requirements from those already in effect under existing laws, regulations, and permits; and 3) providing a permit that complies with the CWA statutory and regulatory requirements. 
Notices of Intent (NOI)
      NPDES general permit regulations, at 40 CFR §122.28(b)(2), require that Operators submit an NOI to obtain coverage under an existing general permit for which that discharge is eligible (except in instances where EPA determines NOIs would be inappropriate for certain dischargers). The 2021 PGP, similar to the 2016 PGP, requires certain Decision-makers to submit Notices of Intent (NOIs) to be covered under the permit while other Decision-makers and all Applicators are covered under the PGP automatically without having to submit an NOI.  One commenter suggested NOIs should be required for all Operators regardless of size to better understand the impacts and scope of the PGP. The commenter also suggested requiring NOIs from Operators discharging a set distance threshold from certain water bodies of concern. While EPA disagrees with the recommended suggestion, EPA acknowledges that Operators who are not required to submit NOIs will be more difficult to identify/evaluate than those that do submit NOIs. However, the agency believes its approach provides a reasonable balance between permit requirements, the burden placed on Operators, and environmental protection. It is important to note that Operators automatically covered are still required to meet all applicable requirements contained within the permit. EPA will continue to evaluate data and other information gathered during this permit term and may opt for a revised approach in subsequent permit issuances, if necessary. However, consistent with 122.28(b)(2)(v) described above, EPA has the discretion to authorize discharges under a general permit without submitting an NOI where EPA finds an NOI would be inappropriate. For a discussion of EPA's consideration of the regulatory criteria in 122.28(b)(2)(v), see Section 1.2.1 of the Fact Sheet. 
      The commenter also recommended requiring a more detailed, standardized reporting system to describe the location of a treatment area. For example, these could include using U.S. Geological Survey hydrological codes, township and range mapping systems, latitude and longitude points, UTMs, or U.S. Postal Service addresses. A second commenter suggested modifying the NOI to obtain additional information on the receiving water, in order to provide states and tribes with more current and reliable data to inform priorities for water quality monitoring programs. The commenter noted that while the current information on waters in Pest Management Areas is acceptable a list of specific waters is needed, specifically a list of all affected 8-digit hydrologic unit codes. EPA notes that on the NOI, the Operator is providing the pest management area not the treatment area. The PGP uses two location related terms: "Treatment Area" and "Pest Management Area." The pest management area is defined in Appendix A of the permit as "the area of land, including any water, for which an Operator has responsibility and is authorized to conduct pest management activities as covered by this permit (e.g., for an Operator who is a mosquito control district, the pest management area is the total area of the district)." The treatment area is a subsection of an Operator's pest management area and is the entire area, whether over land or water, where a pesticide application is intended to provide pesticidal benefits within the pest management area. For example, a utility company responsible for maintaining rights-of-way across an entire state may identify the entire state as the pest management area. In that case each individual pest application activity would result in identification of individual treatment areas within the larger pest management area. A Decision-maker required to submit an NOI is required to identify the pest management area for which permit coverage is being requested. In so doing, any treatment areas within this pest management area will be covered under that one NOI. Information on the treatment areas are recorded and, if required, reported as outlined in Part 7, Recordkeeping and Annual Reporting, of the PGP. In so doing, any treatment area within this pest management area will be covered under that one NOI. Should the Decision-maker want permit coverage in an area outside of the pest management area reported on that NOI, the Decision-maker must submit a revised NOI with the additional pest management area identified. Also, the NOI form requires Decision-makers to identify the waters of the United States into which permit coverage is being requested. NOI filers have an option of specifying these waters of the United States by name, by specifying that all waters within a geographic area are included, or by specifying all waters within a geographic area with the exception of certain named waters. EPA believes this approach provides flexibility for how Decision-makers identify the location of waters for which discharges to such waters will be covered under the PGP. EPA agrees that the reporting system can be improved. As the PGP is moving to NPDES e-Reporting Tool (NeT) for NOI submission, and other reporting, EPA will have additional functionalities within NeT to explore collecting location and water information for the next permit cycle. This is further explained in the NeT essay below. 
      A commenter asked for clarification on when a new Decision-maker taking over the responsibility of the pest control activities covered under an existing NOI needs to file another NOI for continuation of coverage. EPA notes that if the new Decision-maker, after verification, is required to submit an NOI, the new NOI must be submitted in accordance with the deadlines in Part 1.2.3, Table 1-2 of the PGP. 
      This commenter also asked why the annual treatment area threshold calculation is additive for mosquito control and forest canopy pest control and not for weed and algae control and animal pest control. The commenter suggested increasing the threshold for weed and algae control and animal pest control if the intent of using a non-additive calculation method is to limit the universe of permittees needing to submit NOIs. As explained below, EPA disagrees that the annual treatment area threshold should be changed. Lastly the commenter asked why multiple applications to the same water body, such as larvicide one day and adulticide another day, count as two applications over a number of acres but multiple applications for weed and algae control and animal pest control over a year only counts as one application. EPA acknowledges that the agency is using the annual treatment area threshold as a tool to identify more significant Operators based on the size of areas treated and to determine the universe of permittees needing to submit NOIs. EPA rejects the suggestion to increase annual treatment area threshold for the weed and algae control and animal pest control as it is EPA's intention to set the threshold calculation for mosquito control and forest canopy pest control to be based on accumulation of multiple treatments in order to eliminate the need for Operators to have to delineate all waters of the United States for purposes of determining applicable permit requirements. EPA notes that in the threshold calculation for mosquito control, larviciding is not used in the calculations. Furthermore, it is important to note that Operators that are not required to submit NOIs are still required to comply with the terms of the permit.  
Technology Based Effluent Limitations
      One commenter recommended that Applicators be required to maintain a log of each pesticide application which would provide a basis for achieving the goal in Part 2.1 of the PGP. The commenter also recommended the log to include a table of active ingredients/chemicals found in the pesticides. EPA notes that the PGP requires Applicators to maintain records of each treatment area. See Part 7.2 of the PGP. EPA disagrees that a table of active ingredients is needed. Part 7.2 of the PGP requires Applicators to provide the EPA registration number which can be used to look up the active ingredients. 
      The commenter also asked if Part 2.2.3(b) of the PGP is missing cultural methods as one of the pest management options for animal pest control. EPA agrees and added cultural methods as one of the pest management options for animal pest control in Part 2.2.3(b) of the PGP. 
      Lastly, the commenter noted that the first sentence in Part 2.2.1(b) is long and repetitive, for example these phrases, "...that will result in a discharge to waters of the United States..." and "...effective means of Pest Management Measures..." EPA disagrees and has decided not to change the sentence because the sentence is not confusing to the commenter.
Water Quality Based Effluent Limitations
      EPA's regulations require permits to include requirements necessary to meet applicable water quality standards (40 CFR 122.44(d)). Accordingly, the 2021 PGP, similar to the 2016 PGP, includes a narrative Water Quality-Based Effluent Limitation (WQBEL) requiring that discharges be controlled as necessary to meet applicable water quality standards. Water quality standards are regulations that include designated uses and water quality criteria to protect those uses. The criteria adopted and incorporated into the standards are the allowable concentrations of pollutants in State, Territory and authorized Tribal waters. One commenter noted the lack of federal pesticide-specific ambient water quality criteria and thus questioned the adequate protection of water bodies as required under Part 3 of the PGP. EPA acknowledges the commenter's concerns regarding the existing water quality criteria. However, as described in Part III.3 of the Fact Sheet, each Operator is required to control its discharge of pollutants as necessary to meet applicable water quality standards.  
      The commenter also asked whether Operators could be held liable if, at some point in the future, a water quality criterion is established for a constituent that was previously applied. EPA notes that future enforcement of past activities under future water quality criterion is outside the scope of this action. 
Pesticide Discharge Management Plan
      One commenter noted that there is no requirement for Operators to review their Pesticide Discharge Management Plan (PDMP) if it has not been updated in over a year. EPA notes that Part 5.2 of the PGP outlines when Operators are required to modify the PDMP. Operators are not required to review or modify their plan annually but rather update as needed. The commenter also suggested including a stronger incentive to encourage Operators from using pesticides when evaluating pest management options under Part 5.1.3 of the PGP. An incentive suggested by the commenter is to reduce reporting requirements. EPA disagrees that an incentive is needed in the permit. EPA expects Operators to evaluate their options on a site-specific basis, and exercise best professional judgment in their selection. EPA notes that Operators are required to obtain NPDES permits only if there are discharges from the application of pesticides. If pesticides are not used, coverage under a pesticide permit is not needed and no recordkeeping is required. 
      Another commenter suggested making the PDMP publicly available, similarly to the other EPA general permits, by attaching the plan to the NOI, including a Uniform Resource Locator in the NOI, or providing the pertinent information from the plan on the NOI. EPA is not accepting the suggestion at this time. As the PGP is moving to NeT for NOI submission, and other reporting, EPA will have additional functionalities within NeT to explore PDMP submittal and addressing any Confidential Business Information (CBI) for the next permit cycle. If there is interest by the public to review a specific PDMP, EPA notes that under Part 5.3 of the PGP Operators must retain a copy of the current PDMP at the address listed on the NOI. The PDMP must be immediately available, at the time of an onsite inspection or upon request to EPA, a State, Tribal or local agency governing wastewater discharges and/or pesticide applications, and representatives of FWS or NMFS. While not required to be submitted to EPA, interested persons can request a copy of the PDMP through EPA, at which point EPA could request the Operator to provide a copy of the PDMP. By requiring members of the public to request a copy of the PDMP through EPA, the agency is able to provide the Operators with assurance that any CBI that may be contained within its PDMP is not released to the public. 
Corrective Action
      One commenter asked if there are water quality standards that can be referenced for the Operators in Part 6.1(b) of the PGP. EPA notes that there are implementation tools for permittees at https://www.epa.gov/npdes/pesticide-permitting where a link is provided to State, Tribal and Territorial Standards (https://www.epa.gov/wqs-tech/state-specific-water-quality-standards-effective-under-clean-water-act-cwa).
      The commenter also suggested removing the term "made aware of an adverse incident" in Part 6.4.1.1 of the PGP in order to clarify the notification requirement. The commenter illustrated the point by asking, when would adverse incident notifications be required for the scenario where the Operator has received a complaint "making them aware" of a possible adverse incident but has not been able to "observe" until a later date. EPA is not accepting the suggestion to remove the term "made aware of an adverse incident." EPA notes that Part 6.4.1.1 of the PGP requires Operators to immediately notify the appropriate EPA Incident Reporting Contact if the Operator observes or is otherwise made aware of an adverse incident. Thus, in the commenter's scenario the Operator must notify upon receipt of the complaint if the complaint is a reportable adverse incident. See Part 6.4.1.2 of the PGP, Adverse Incident Notification Not Required.
      Lastly, the commenter suggested citing to 40 CFR 159.184(a-f) instead of 40 CFR 159 where the PGP mentions the adverse incident notification and reporting requirements that registrant is required to submit under FIFRIA. EPA agrees Part 159.184(a-f) is the specific citation to the adverse incident notification and reporting requirements for registrant, however EPA is not revising as citing 40 CFR 159 is sufficient for a note to Operators in the permit.
      Another commenter suggested revising Part 6.0 of the PGP to require permittees to submit applicable Safety Data Sheets in written Adverse Incidents and Reportable Spills and Leaks reports as required by other general permits. This commenter also suggested providing online public access to written Adverse Incident and Reportable Spills and Leak reports. EPA is not accepting these suggestions at this time. As the PGP is moving to NeT for NOI submission, and other reporting, EPA will have additional functionalities within NeT to explore for the next permit cycle.
Recordkeeping and Annual Reporting
      One commenter noted that Parts 7.3(b) and 7.4(d) of the PGP imply that equipment does not need to be calibrated if the Decision-maker is not the one applying the pesticide. EPA notes that in Parts 7.3(b) and 7.4(d) of the PGP, Decision-makers are not required to provide documentation of equipment calibration unless the Decision-maker is also the Applicator. This is because the PGP requires Applicators to "Maintain pesticide equipment in proper operating condition, including requirement to calibrate, clean, and repair such equipment and prevent leaks, spills, or other unintended discharges." See Part 2.1.2 of the PGP. The commenter also suggested correcting the reference in Appendix F of the PGP as Part 7.4 of the PGP does not include any reference to the Pesticide Discharge Evaluation Worksheet (PDEW) in Appendix F of the PGP but the worksheet points to the requirements in Part 7.4 of the PGP. EPA acknowledges the suggestion and has corrected Appendix F of the PGP to reference Part 7.3 of the PGP which is the part of the permit that references the PDEW.
      In order to provide states and tribes with more current and reliable data to inform priorities for water quality monitoring programs, another commenter suggested requiring annual reports to include information on the active ingredients or degradates with National Recommended Water Quality Criteria to assist in monitoring and assessment activities under CWA water pollution control programs. EPA disagrees. EPA determined that the existing structure of the annual reporting provisions are consistent with balancing the need to record and collect specific information documenting implementation of permit requirements with the desire to not unduly interfere with the ability of Operators to perform their responsibilities. In addition, Operators are already required to provide an EPA Registration Number for the pesticide product used, and Registration Numbers can be used to identify active ingredients. 
      A third commenter mentioned that annual reporting is absolutely vital to the efficacy of the PGP and that if there are challenges with reporting requirements, the solution is for EPA to develop a standard approach this that is GIS friendly and easy to comply with. EPA agrees, and to continue standardizing location information, EPA continues to provide permittees mapping tools that allows permittees to map their treatment areas and upload with the electronic NOI system. The tool is available at https://www.epa.gov/npdes/pesticide-permitting. 
Appendices
      A commenter suggested changing in Appendix A, the October 31, 2016 date in the definition for Decision-maker Who is or Will be Required to Submit an NOI. EPA agrees and has changed the definition to add the term "on the effective date of the permit" instead of a specific date. The definition now reads:
      Decision-maker Who is or Will be Required to Submit an NOI  -  any Decision-maker covered under the PGP who knows or should have known that an NOI will be required for those discharges beginning on the effective date of the permit. Excluded from this definition are those activities for which an NOI is required based solely on that Decision-Maker exceeding an annual treatment area threshold.
      The commenter noted that the list of acronyms and abbreviations used in the document is incomplete. EPA agrees and has updated the Appendix A2 of the PGP.
      The commenter also suggested changing the third person pronoun to "they" from "he" in Appendix B of the PGP, specifically in 40 CFR 122.41(a)(2). EPA agrees but this suggestion is outside the scope of this action as conditions in Appendix B of the PGP are standard permit conditions from 40 CFR 122.41. 
      Lastly, in Appendix H of the PGP, the commenter suggested providing a hyperlink in the Adverse Incident form to the NeT. EPA is not accepting this suggestion at this time, as NeT for PGP does not allow for submittal of adverse incident forms. EPA is planning to add this functionality in future updates.
      
      
      
      
      
      
              PGP Comment Response: NPDES e-Reporting Tool (NeT)
      EPA is moving to the NPDES e-Reporting Tool (NeT) for NOIs, NOTs, and Annual Report submittals under the 2021 PGP. One commenter supports the move from eNOI system to NeT and mentioned providing training to ensure seamless transition and ample time for the migration. EPA agrees and has planned trainings for NeT users. EPA is planning to release the NeT system for the PGP prior to the effective date of the 2021 PGP. Doing so will not only allow EPA to provide necessary training for future users, but also allow for future users to become familiar using the system prior to submitting NOIs, NOTs, and annual reports. The training will be available for access from the PGP website: https://www.epa.gov/npdes/pesticide-permitting.
      Another commenter suggested a notification of NOIs submitted. EPA agrees and notes that with PGP NeT interested stakeholders can request through their EPA region contact to receive email notification when NOIs are submitted. This commenter also suggested continuing to make NOIs, Annual Reports, and NOTs publicly available for the 2021 PGP as well as for the 2011 PGP and 2016 PGP. EPA agrees and notes that NOIs, NOTs, and Annual Reports under the 2011 PGP and 2016 PGP are available on the eNOI public search webpage which is linked to from the PGP eNOI webpage at https://www.epa.gov/npdes/pesticide-permitting-pgp-enoi. NOIs, NOTs, and Annual Reports under the 2021 PGP are available on the webpage, Permit Lookup, at https://permitsearch.epa.gov/epermit-search/ui/search.
               PGP Comment Response Miscellaneous Comments Essay
General Miscellaneous 
      A commenter provided several general suggestions for agency consideration. Some of these comments pointed out broken web links and other inadvertent errors in the proposed permit, fact sheet, and Federal Register notice. EPA has reviewed these comments and made corrections as necessary to the final permit and fact sheet. 
      This commenter also suggested adding to the permit the process for handling permit-related complaints as there does not appear to be a procedure for it. EPA disagrees. Though the commenter does not explain what a permit-related complaint might be, EPA notes that Operators are given opportunity to provide comments prior to permit issuance during the public comment period and implementation tools are available on EPA's website (https://www.epa.gov/npdes/pesticide-permitting) as well as contact information of staff assigned to assist with this permit.
      Additionally, this commenter suggested that EPA commits to monitoring aerial spraying for drift, retention in soil, and transfer through water as part of its research program. The commenter also noted that herbicides used should be public information and should be listed in a public notification before the application. EPA acknowledges the suggestion to monitor spraying as part of a research program, but this comment is not related to the permit reissuance or requirements and are outside the scope of this action. As for public information and notification of herbicide application, EPA notes that certain pesticide labels do require notification prior to and post application. 
      All pesticides reviewed and approved by EPA are evaluated based on their use(s) with FIFRA label requirements reflecting any special concerns associated with one or more approved uses. Pesticides, as part of the FIFRA registration and reregistration process, are evaluated for potential effects and FIFRA labels may contain additional requirements, such as public notification requirements.
      Lastly, this commenter noted the permit does not specify which agencies will be responsible for the management of the permit. EPA notes that the PGP is applicable in areas where EPA is the NPDES permitting authority, and therefore EPA is responsible for administering the NPDES PGP, which includes issuing the permit, providing education and outreach, evaluating compliance, and taking enforcement actions for violations.
Fact Sheet
      Several commenters requested clarification on specific sections of the Fact Sheet. One commenter pointed to the sentences on pages 81 and 82 of the Fact Sheet and noted that these statements appear to contradict one another. The commenter pointed to this sentence on page 81, "Every two years states must identify, based on ambient sampling, water bodies that are not attaining water quality standards under CWA Section 303(d)." and on page 82, "However, it is important to note that many states do not routinely monitor for many currently registered pesticides." EPA disagrees the two sentences highlighted by the commenter contradict one another. The first sentence is stating the requirement and the second sentence is explaining the limitation of the analysis.
      Two commenters suggested the Fact Sheet should clarify and confirm that the PGP does not apply to stormwater discharges that do not currently require an NPDES permit under section 402(p) nor to any diffuse runoff from nonpoint sources. EPA acknowledges this suggestion and notes that neither the 2006 NPDES Pesticides Rule, the Sixth Circuit Court vacatur of that rule, nor this PGP have changed in any way the determination of whether certain types of stormwater runoff are required to obtain permit coverage, or under which permit coverage is required. EPA has updated the Fact Sheet to clarify that, "...non-agricultural stormwater that may contain pesticides would not be eligible for coverage under the permit, and is not required to obtain NPDES permit coverage unless otherwise required under section 402(p) of the Clean Water Act..." 
Data	
      One commenter suggested that PGP enforcement and compliance history online be maintained in a similar or equivalent manner as other permits, for example updating the EPA's Enforcement and Compliance History website to provide compliance information related to the PGP. The commenter also suggested EPA integrate information located across the agency's multiple webpages to increase ease of access by the public. EPA notes that compliance information related to pesticide application under the CWA is available at EPA's Enforcement and Compliance History Online (ECHO). EPA acknowledges the suggestion to integrate information in the agency's multiple webpages, however it is not related to the permit reissuance or requirements and outside the scope of this action.
      The commenter also suggested providing the public a link to the Pesticide Chemical Search and/or Pesticide Product Label System Information for each pesticide that the permittee submits and lists on the online annual report or alternatively create more prominent links on the PGP website. Another commenter suggested adding a list of active ingredients/chemicals in pesticides along with potential side effects they may have on non-targeted organisms and the soil. EPA acknowledges the requests for information on pesticides and has added the webpage, How to Search for Information about Pesticide Ingredients and Labels, at https://www.epa.gov/ingredients-used-pesticide-products/how-search-information-about-pesticide-ingredients-and-labels to the pesticide permitting webpage at https://www.epa.gov/npdes/pesticide-permitting. Furthermore, this information is contained in the case docket for each pesticide registration or re-evaluation at www.regulations.gov. An individual would need to have the reference docket number for a particular chemical case to return a specific ecological risk assessment.  
Water of the United States Definition
      Two commenters requested that additional notice and comment period should be provided for the PGP should the waters of the United States framework be changed prior to issuance of the final permit. In addition, the commenters suggested delaying changing the PGP until the next five-year cycle if the PGP needs to be changed to address waters of the United States definition. EPA acknowledges these comments.  EPA does not believe the PGP needs to be changed to address the waters of the United States definition. 
National Water Quality Criteria
      A commenter requested that the agency revise existing water quality criteria for pesticides to reflect the latest scientific knowledge and establish water quality criteria for pesticides currently on the market. The commenter specifically recommended water quality criteria for Atrazine, Glyphosate, Imidacloprid, Clothianidin, Thiamethoxam, 2,4-D, Dicamba, Metam sodium, Metolachlor/Metolachlor-S, Acetochlor, 1.3 Dichloropropene, Chloropicrin, and Pendimethalin. The commenter noted that water quality criteria should be protective of not just aquatic life but also wildlife. EPA acknowledges the comment regarding existing water quality criteria and the suggestion to develop national water quality criteria; however, these comments are not related to the permit reissuance or requirements and are outside the scope of this action.
Synergistic effects
      A commenter asked whether there has been evaluation of synergistic effects on species due to the application of multiple pesticide in a single river. EPA acknowledges the comment regarding synergistic effects on species due to application of multiple pesticides in a single river, however, this comment is outside the scope of this action. 
Minimize Pesticide Use 
      EPA received a comment on the use of pesticides. The commenter noted that using less pesticides is better. EPA acknowledges the comment and notes that the PGP does not prohibit pesticide use. Pesticide use is regulated under FIFRA. Pesticide users are required to comply with all applicable FIFRA requirements contained in pesticide product labels which is independent of what is required under the PGP. In addition, the PGP does not require application rates to be less than the pesticide label rates. However, the PGP does require that Operators consider using less where appropriate (See Part 2.2 of the permit). 
