[Federal Register Volume 68, Number 156 (Wednesday, August 13, 2003)]
[Notices]
[Pages 48385-48388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20529]


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ENVIRONMENTAL PROTECTION AGENCY

[OW-2003-0063; FRL-7542-9]


Interim Statement and Guidance on Application of Pesticides to 
Waters of the United States in Compliance with FIFRA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice and request for comment.

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SUMMARY: In a July 11, 2003, memorandum, the Environmental Protection 
Agency (EPA) issued, as an Interim Statement and Guidance, an 
interpretation of the Clean Water Act (CWA) to resolve jurisdictional 
issues pertaining to pesticides regulated under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) that are applied to 
waters of the United States. The interpretation addresses two sets of 
circumstances for which EPA believes that the application of a 
pesticide to waters of the United States consistent with all relevant 
requirements of FIFRA does not constitute the discharge of a pollutant 
that requires a National Pollutant Discharge Elimination System (NPDES) 
permit under the Clean Water Act: the application of pesticides 
directly to waters of the United States in order to control pests (for 
example mosquito larvae or aquatic weeds that are present in the water) 
and the application of pesticides to control pests that are present 
over waters of the United States that results in a portion of the 
pesticide being deposited to waters of the United States (for example 
when insecticides are aerially applied to a forest canopy where waters 
of the United States may be present below the canopy or when 
insecticides are applied for control of adult mosquitoes). EPA issued 
this statement pursuant to its authority under Section 301 of the Clean 
Water Act. EPA is soliciting and will consider comment on this interim 
statement and guidance before determining a final Agency position.

DATES: Comments on this notice must be received or postmarked on or 
before midnight October 14, 2003.

ADDRESSES: Public comments regarding this notice may be submitted 
electronically, by mail, or through hand delivery/courier. Comments may 
be submitted by mail to: Water Docket, Environmental Protection Agency, 
Mail Code 4101T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention Docket ID No. OW-2003-0063. For additional information on 
other ways to submit comments, see SUPPLEMENTARY INFORMATION, How May I 
Submit Comments?

FOR FURTHER INFORMATION CONTACT: For additional technical information 
contact Louis Eby, Office of Wastewater Management, at (202) 564-6599, 
or Arty Williams, Office of Pesticide Programs, at (703) 305-5239.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2003-0063. The official public docket is 
the collection of materials that is available for public viewing at the 
Water Docket in the EPA Docket Center, EPA West, Room B102, 1301 
Constitution Avenue, NW., Washington, DC. The EPA Docket 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

[[Page 48386]]

for the telephone number for the Water Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in section I.A.1.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. 
(To access EPA's electronic public docket from the EPA Internet Home 
Page, select ``Information Sources,'' ``Dockets,'' and ``EPA 
Dockets.'') Once in the system, select ``search,'' and then key in 
Docket ID No. OW-2003-0063. The system is an ``anonymous access'' 
system, which means EPA will not know your identity, e-mail address, or 
other contact information unless you provide it in the body of your 
comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OW-2003-0063. In contrast to 
EPA's electronic public docket, EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the Docket without going through EPA's electronic public docket, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in section I.B.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Please submit an original and three copies of your 
written comments and enclosures to: Water Docket, Environmental 
Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention Docket ID No. OW-2003-0063.
    3. By Hand Delivery or Courier. Deliver your comments to: EPA 
Docket Center, EPA West, Room B102, 1301 Constitution Avenue, NW., 
Washington, DC, 20004, Attention Docket ID No. OW-2003-0063. Such 
deliveries are only accepted during the Docket's normal hours of 
operation as identified in section I.A.1.

C. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

[[Page 48387]]

II. Text of the Memorandum

    The text of the Memorandum follows:

MEMORANDUM

SUBJECT: Interim Statement and Guidance on Application of Pesticides 
to Waters of the United States in Compliance with FIFRA
FROM: G. Tracy Mehan, III (signed and dated, July 11, 2003) 
Assistant Administrator for Water (4101) Stephen L. Johnson (signed 
and dated, July 11, 2003) Assistant Administrator for Prevention, 
Pesticides and Toxic Substances (7101)
TO: Regional Administrators, Regions I-X

    The Environmental Protection Agency (EPA) is issuing this 
interpretation of the Clean Water Act (CWA) to address 
jurisdictional issues under the CWA pertaining to pesticides 
regulated under the Federal Insecticide, Fungicide and Rodenticide 
Act (FIFRA) that are applied to waters of the United States. This 
Memorandum is issued, in part, in response to a statement by the 
U.S. Court of Appeals for the Second Circuit in Altman v. Town of 
Amherst that highlighted the need for EPA to articulate a clear 
interpretation of whether National Pollutant Discharge Elimination 
System (NPDES) permits under section 402 of the CWA are required for 
applications of pesticides that comply with relevant requirements of 
FIFRA. EPA will solicit comment on this interim statement through 
the Federal Register prior to determining a final agency position. 
Until that position is made final, however, the application of 
pesticides in compliance with relevant FIFRA requirements is not 
subject to NPDES permitting requirements, as described in this 
statement.
    EPA will continue to review the variety of circumstances in 
which questions have been raised about whether applications of 
pesticides to waters of the U.S. are regulated under the CWA. As EPA 
determines the appropriate response to these circumstances, we will 
develop additional guidance. This memorandum addresses two sets of 
circumstances for which EPA believes that the application of a 
pesticide to waters of the United States consistent with all 
relevant requirements of FIFRA does not constitute the discharge of 
a pollutant that requires an NPDES permit under the Clean Water Act:
    (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 or 
aquatic weeds that are present in the waters of the United States.
    (2) The application of pesticides to control pests that are 
present over waters of the United States that results in a portion 
of the pesticides being deposited to waters of the United States; 
for example, when insecticides are aerially applied to a forest 
canopy where waters of the United States may be present below the 
canopy or when insecticides are applied over water for control of 
adult mosquitos.
    It is the Agency's position that these types of applications do 
not require NPDES permits under the Clean Water Act if the 
pesticides are applied consistent with all relevant requirements of 
FIFRA. Applications of pesticides in violation of the relevant 
requirements of FIFRA would be subject to enforcement under any and 
all appropriate statutes including, but not limited to FIFRA and the 
Clean Water Act. This interpretation also does not preclude or 
nullify any existing authority vested with States or Tribes to 
impose additional requirements on the use of pesticides to address 
water quality issues to the extent authorized by federal, state or 
tribal law.

Background and Rationale

    In this interim statement and guidance, the Agency construes the 
Clean Water Act in a manner consistent with how the statute has been 
administered for more than 30 years. EPA does not issue NPDES 
permits solely for the direct application of a pesticide to target a 
pest that is present in or over a water of the United States, nor 
has it ever stated in any general policy or guidance that an NPDES 
permit is required for such applications.
    In Headwaters, Inc. v. Talent Irrigation District, the U.S. 
Court of Appeals for the Ninth Circuit held that an applicator of 
herbicides was required to obtain an NPDES permit under the 
circumstances before the court. 243 F.3rd 526 (9th Cir. 2001).\1\ 
The Talent decision caused public health authorities, natural 
resource managers and others who rely on pesticides great concern 
and confusion about whether they have a legal obligation to obtain 
an NPDES permit when applying a pesticide consistent with FIFRA and, 
if so, the potential impact such a requirement could have on 
accomplishing their own mission of protecting human health and the 
environment. Since Talent, only a few States have issued NPDES 
permits for the application of pesticides. Most state NPDES permit 
authorities have opted not to require applicators of pesticides to 
obtain an NPDES permit. In addition, state officials have continued 
to apply pesticides for public health and resource management 
purposes without obtaining an NPDES permit. These varying practices 
reflect the substantial uncertainty among regulators, the regulated 
community and the public regarding how the Clean Water Act applies 
to the use of pesticides.
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    \1\ In an amicus brief filed by the United States in the Talent 
case, EPA stated that compliance with FIFRA does not necessarily 
mean compliance with the Clean Water Act. However, the government's 
Talent brief did not address the question of how pesticide 
application is regulated under the Clean Water Act or the 
circumstances in which pesticides are ``pollutants'' under the CWA.
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    There has been continued litigation and uncertainty following 
the Talent decision. One such case is Altman v. Town of Amherst 
(Altman), which was brought against the Town of Amherst for not 
having obtained an NPDES permit for its application of pesticides to 
wetlands as part of a mosquito control program. In September 2002, 
the Second Circuit remanded the Altman case for further 
consideration and issued a Summary Order that stated, ``Until the 
EPA articulates a clear interpretation of current law among other 
things, whether properly used pesticides released into or over 
waters of the United States can trigger the requirement for an NPDES 
permit [or a state-issued permit in the case before the court] the 
question of whether properly used pesticides can become pollutants 
that violate the Clean Water Act will remain open.'' 46 Fed. Appx. 
62, 67 (2d Cir. 2002).
    This Memorandum provides EPA's interpretation of how the CWA 
currently applies to the two specific circumstances listed above. 
Under those circumstances, EPA has concluded that the CWA does not 
require NPDES permits for a pesticide applied consistent with all 
relevant requirements of FIFRA. This interpretation is consistent 
with the circumstances before the Ninth Circuit in Talent and with 
the brief filed by the United States in the Altman case.\2\
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    \2\ While the court's analysis in Talent did not turn on whether 
the pesticide application at issue was consistent with the 
requirements of FIFRA, the factual situation described in the 
court's opinion constitutes a violation of the applicable FIFRA 
label because the pesticide applicator failed to contain the 
herbicide-laden water for the requisite number of days. In its 
amicus brief in the Altman case, EPA described factors relevant to 
the determination whether a pesticide may be subject to the CWA, and 
those factors are consistent with the analysis and interpretation of 
the Act described below.
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    Many of the pesticide applications covered by this memorandum 
are applied either to address public health concerns such as 
controlling mosquitos or to address natural resource needs such as 
controlling non-native species or plant matter growth that upsets a 
sustainable ecosystem. Under FIFRA, EPA is charged to consider the 
effects of pesticides on the environment by determining, among other 
things, whether a pesticide ``will perform its intended function 
without unreasonable adverse effects on the environment,'' and 
whether ``when used in accordance with widespread and commonly 
recognized practice [the pesticide] will not generally cause 
unreasonable adverse effects on the environment.'' FIFRA section 
3(c)(5).
    The application of a pesticide to waters of the U.S. would 
require an NPDES permit only if it constitutes the ``discharge of a 
pollutant'' within the meaning of the Clean Water Act.\3\ The term 
``pollutant'' is defined in section 502(6) of the CWA as follows:
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    \3\ This Memorandum addresses circumstances when a pesticide is 
not a ``pollutant'' that would be subject to NPDES permit 
requirements when discharged into a water of the United States. It 
does not address the threshold question of whether these or other 
types of pesticide applications constitute ``point source'' 
discharges to waters of the United States.
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    The term ``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.

    EPA has evaluated whether pesticides applied consistent with 
FIFRA fall within any of the terms in section 506(2), in particular 
whether they are ``chemical wastes'' or ``biological materials.'' 
EPA has concluded that they do not fall within either

[[Page 48388]]

term. First, EPA does not believe that pesticides applied consistent 
with FIFRA are ``chemical wastes.'' The term ``waste'' ordinarily 
means that which is ``eliminated or discarded as no longer useful or 
required after the completion of a process.'' The New Oxford 
American Dictionary 1905 (Elizabeth J. Jewell & Frank Abate eds., 
2001); see also The American Heritage Dictionary of the English 
Language 1942 (Joseph P. Pickett ed., 4th ed. 2000) (defining waste 
as ``[a]n unusable or unwanted substance or material, such as a 
waste product''). Pesticides applied consistent with FIFRA are not 
such wastes; on the contrary, they are EPA-evaluated products 
designed, purchased and applied to perform their intended purpose of 
controlling target organisms in the environment.\4\ Therefore, EPA 
concludes that ``chemical wastes'' do not include pesticides applied 
consistent with FIFRA.
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    \4\ Where, however, pesticides are a waste, for example when 
contained in stormwater regulated under section 402(p) of the CWA or 
other industrial or municipal discharges, they are pollutants and 
require a permit when discharged to a water of the U.S.
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    EPA also interprets the term ``biological materials'' not to 
include pesticides applied consistent with FIFRA. We think it 
unlikely that Congress intended EPA and the States to issue permits 
for the discharge into water of any and all material with biological 
content.\5\ With specific regard to biological pesticides, moreover, 
we think it far more likely that Congress intended not to include 
biological pesticides within the definition of ``pollutant.'' This 
interpretation is supported by multiple factors.
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    \5\ Taken to its literal extreme, such an interpretation could 
arguably mean that activities such as fishing with bait would 
constitute the addition of a pollutant.
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    EPA's interpretation of ``biological materials'' as not 
including biological pesticides avoids the nonsensical result of 
treating biological pesticides as pollutants even though chemical 
pesticides are not. Since all pesticides applied in a manner 
consistent with the requirements of FIFRA are EPA-evaluated products 
that are intended to perform essentially similar functions, 
disparate treatment would, in EPA's view, not be warranted, and an 
intention to incorporate such disparate treatment into the statute 
ought not to be imputed to Congress.\6\ Moreover, at the time the 
Act was adopted in 1972, chemical pesticides were the predominant 
type of pesticide in use. In light of this fact, it is not 
surprising that Congress failed to discuss whether biological 
pesticides were covered by the Act. The fact that more biological 
pesticides have been developed since passage of the 1972 Act does 
not, in EPA's view, justify expanding the Act's reach to include 
such pesticides when there is no evidence that Congress intended 
them to be covered by the statute in a manner different from 
chemical pesticides. Finally, many of the biological pesticides in 
use today are reduced-risk products that produce a more narrow range 
of potential adverse environmental effects than many chemical 
pesticides. As a matter of policy, it makes little sense for such 
products to be subject to CWA permitting requirements when chemical 
pesticides are not. Caselaw also supports this interpretation. Ass'n 
to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources, 
299 F.3d 1007, 1016 (9th Cir. 2002) (application of the esjudem 
generis canon of statutory interpretation supports the view that the 
CWA ``supports an understanding of * * * `biological materials,' as 
waste material of a human or industrial process'').\7\
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    \6\ Further, some pesticide products may elude classification as 
strictly ``chemical'' or ``biological.''
    \7\ EPA's interpretation of section 502(6) with regard to 
biological pesticides should not be taken to mean that EPA reads the 
CWA generally to regulate only wastes. EPA notes that other terms in 
section 502(6) may or may not be limited in whole or in part to 
wastes, depending on how the substances potentially addressed by 
those terms are created or used. For example, ``sand'' and ``rock'' 
can either be discharged as waste or as fill material to create 
structures in waters of the U.S., and Congress created in section 
404 of the Act a specific regulatory program to address such 
discharges. See 67 FR 31129 (May 9, 2002) (subjecting to the section 
404 program discharges that have the effect of filling waters of the 
U.S., including fills constructed for beneficial purposes). The 
question in any particular case is whether a discharge falls within 
one of the terms in section 502(6), in light of the factors relevant 
to the interpretation of that particular term. As discussed above, 
the factors critical to EPA's interpretation concerning biological 
pesticides are consistency with section 502(6)'s treatment of 
chemical pesticides and chemical wastes, and how the general term 
``biological materials'' fits within the constellation of other, 
more specific terms in section 502(6), which to a great extent 
focuses on wastes.
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    Under EPA's interpretation, whether a pesticide is a pollutant 
under the CWA turns on the manner in which it used, i.e., whether 
its use complies with all relevant requirements of FIFRA. That 
coverage under the Act turns on the particular circumstances of its 
use is not remarkable. Indeed, when asked on the Senate floor 
whether a particular discharge would be regulated, the primary 
sponsor of the CWA, Senator Muskie (whose views regarding the 
interpretation of the CWA have been accorded substantial weight over 
the last four decades), stated:

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

    Here, to determine whether a pesticide is a pollutant under the 
CWA, EPA believes it is appropriate to consider the circumstances of 
how a pesticide is applied, specifically whether it is applied 
consistent with relevant requirements under FIFRA. Rather than 
interpret the statutes so as to impose overlapping and potentially 
confusing regulatory regimes on the use of pesticides, this 
interpretation seeks to harmonize the CWA and FIFRA.\8\ Under this 
interpretation, a pesticide applicator is assured that complying 
with environmental requirements under FIFRA will mean that the 
activity is not also subject to the distinct NPDES permitting 
requirements of the CWA. However, like an unpermitted discharge of a 
pollutant, application of a pesticide in violation of relevant FIFRA 
requirements would be subject to enforcement under any and all 
appropriate statutes including, but not limited to, FIFRA and the 
CWA.
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    \8\ EPA's Talent brief suggested that compliance with FIFRA does 
not necessarily mean compliance with the CWA, and pointed out one 
difference between CWA and FIFRA regulation, i.e., individual NPDES 
permits could address local water quality concerns that might not be 
specifically addressed through FIFRA's national registration 
process. The position EPA is articulating in this memo would not 
preclude state or tribal authorities from further limiting the use 
of a particular pesticide to address any unique and geographically 
limited water quality issue to the extent authorized by Federal, 
State, or tribal law.
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Solicitation of comment on this Interim Statement and Guidance

    In the near future, the Agency will seek public comment on this 
interim statement and guidance in the Federal Register. The Agency 
will review all comments and determine whether changes or 
clarifications are necessary before issuing final interpretation and 
guidance.
    Please feel free to call us to discuss this memorandum. Your 
staff may call Louis Eby in the Office of Wastewater Management at 
(202) 564-6599 or Arty Williams in the Office of Pesticide Programs 
at (703) 305-5239.

    Dated: August 5, 2003.
G. Tracy Mehan, III,
Assistant Administrator, Office of Water.
    Dated: August 5, 2003.
Susan B. Hazen,
Principal Deputy Assistant Administrator, Office of Prevention, 
Pesticides and Toxic Substances.
[FR Doc. 03-20529 Filed 8-12-03; 8:45 am]
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