[Federal Register Volume 70, Number 20 (Tuesday, February 1, 2005)]
[Proposed Rules]
[Pages 5093-5100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1868]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[OW-2003-0063; FRL-7866-5]
RIN 2040-AE72


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking and notice of interpretive statement.

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

DATES: Comments on this action must be received or postmarked on or 
before midnight April 4, 2005.

ADDRESSES: Submit your comments, identified by Docket ID No. OW-2003-
0063, by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    (2) Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    (3) E-mail: [email protected], Attention Docket ID No. OW-2003-
0063.
    (4) Mail: Send the original and three copies of your comments to: 
Water Docket, Environmental Protection Agency, Mailcode 4101T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
OW-2003-0063.
    (5) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA 
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC, 
Attention Docket ID No. OW-2003-0063. Such deliveries are only accepted 
during the Docket's normal hours of operation.
    Instructions: Direct your comments to Docket ID No. OW-2003-0063. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the Federal regulations.gov Web sites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102). For additional instructions on submitting comments, 
go to section B.1. of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Water Docket in the EPA Docket Center, EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 
566-2426.

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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    You may be potentially affected by this action if you apply 
pesticides to or

[[Page 5094]]

over, including near, water. Potentially affected entities may include, 
but are not limited to:

----------------------------------------------------------------------------------------------------------------
                Category                             NAICS             Examples of potentially affected entities
----------------------------------------------------------------------------------------------------------------
Agriculture parties--General              111 Crop Production........  Producers of crops mainly for food and
 agricultural interests, farmers/                                       fiber including farms, orchards, groves,
 producers, forestry, and irrigation.                                   greenhouses, and nurseries.
                                          112511 Finfish Farming and   Producers of farm raised finfish (e.g.,
                                           Fisher Hatcheries.           catfish, trout, goldfish, tropical fish,
                                                                        minnows) and/or hatching fish of any
                                                                        kind.
                                          112519 Other Animal          Producers engaged in farm raising animal
                                           Aquaculture.                 aquaculture (except finfish and
                                                                        shellfish). Alligator, frog, or turtle
                                                                        production is included in this industry.
                                          113110 Timber Tract          The operation of timber tracts for the
                                           Operations.                  purpose of selling standing timber.
                                          113210 Forest Nurseries      Growing trees for reforestation and/or
                                           Gathering of Forest          gathering forest products, such as gums,
                                           Products.                    barks, balsam needles, rhizomes, fibers,
                                                                        Spanish moss, ginseng, and truffles.
                                          221310 Water Supply for      Operating irrigation systems.
                                           Irrigation.
Pesticide parties (includes pesticide     325320 Pesticide and Other   Formulation and preparation of
 manufacturers, other pesticide users/     Agricultural Chemical        agricultural pest control chemicals.
 interests, and consultants).              Manufacturing.
Public health parties (includes mosquito  923120 Administration of     Government establishments primarily
 or other vector control districts and     Public Health Programs.      engaged in the planning, administration,
 commercial applicators that service                                    and coordination of public health
 these).                                                                programs and services, including
                                                                        environmental health activities.
Resource management parties (includes     924110 Administration of     Government establishments primarily
 state departments of fish and wildlife,   Air and Water Resource and   engaged in the administration,
 state departments of pesticide            Solid Waste Management       regulation, and enforcement of air and
 regulation, state environmental           Programs.                    water resource programs; the
 agencies, and universities).                                           administration and regulation of water
                                                                        and air pollution control and prevention
                                                                        programs; the administration and
                                                                        regulation of flood control programs;
                                                                        the administration and regulation of
                                                                        drainage development and water resource
                                                                        consumption programs; and coordination
                                                                        of these activities at intergovernmental
                                                                        levels.
                                          924120 Administration of     Government establishments primarily
                                           Conservation Programs.       engaged in the administration,
                                                                        regulation, supervision and control of
                                                                        land use, including recreational areas;
                                                                        conservation and preservation of natural
                                                                        resources; erosion control; geological
                                                                        survey program administration; weather
                                                                        forecasting program administration; and
                                                                        the administration and protection of
                                                                        publicly and privately owned forest
                                                                        lands. Government establishments
                                                                        responsible for planning, management,
                                                                        regulation and conservation of game,
                                                                        fish, and wildlife populations,
                                                                        including wildlife management areas and
                                                                        field stations; and other administrative
                                                                        matters relating to the protection of
                                                                        fish, game, and wildlife are included in
                                                                        this industry.
Utility parties (includes utilities)....  221 Utilities..............  Provide electric power, natural gas,
                                                                        steam supply, water supply, and sewage
                                                                        removal through a permanent
                                                                        infrastructure of lines, mains, and
                                                                        pipes.
Other Parties...........................  713910 Golf courses and      Golf course operators who have ponds for
                                           country clubs.               irrigation.
----------------------------------------------------------------------------------------------------------------

    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed could also be affected. 
Other stakeholders and members of the public concerned about the 
application of pesticides to and over, including near, waters of the 
U.S. may also have an interest in this action. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed under FOR FURTHER INFORMATION 
CONTACT.
    B. 1. Submitting CBI. Do not submit this information to EPA through 
EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.

[[Page 5095]]

    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background and Public Comments

    EPA issued an Interim Statement and Guidance addressing two 
circumstances in which the Agency interprets the CWA as not requiring 
NPDES permits for the application of pesticides to and over waters of 
the United States, because such materials are not ``pollutants'' as 
that term is defined in the CWA. The first situation addressed in the 
Interim Statement and Guidance was the application of pesticides 
directly to waters of the United States in order to control pests (for 
example, mosquito larvae or aquatic weeds that are present in the 
water). The second situation was the application of pesticides to 
control pests that are present over waters of the United States that 
results in a portion of the pesticide being deposited to waters of the 
United States (for example, when pesticides are aerially applied to a 
forest canopy where waters of the United States may be present below 
the canopy or when insecticides are applied for control of adult 
mosquitos). Although the Interim Statement and Guidance was effective 
when issued, EPA provided public notice and solicited public comment. 
68 FR 48385; August 13, 2003.
    EPA received many comments on the Interim Statement and Guidance, 
including comments supporting EPA's interpretation as well as comments 
opposing it. In general, most commenters who supported EPA's 
interpretation agreed that it was the best interpretation of the CWA's 
definition of ``pollutant,'' and that the issuance of the Interim 
Statement and Guidance would facilitate application of pesticides in a 
manner consistent with relevant FIFRA requirements to serve important 
public health purposes. The comments opposing EPA's interpretation 
disagreed with the Agency's interpretation of the Act and expressed 
concerns about the environmental effects of pesticides applied to and 
over waters of the United States. EPA has considered the comments 
received on the Interim Statement and will continue to do so in the 
context of today's proposed rulemaking. The Agency will formally 
respond to all public comments received on the Interim Statement and 
during the public comment period for today's proposed rule. Therefore, 
it is not necessary to resubmit comments that were previously submitted 
on the Interim Statement and Guidance.
    While EPA will formally address all the comments when it 
promulgates a final regulation, the Agency addresses here two issues 
raised by public comments. Some commenters expressed concern that the 
Agency was not adopting this interpretation through a rulemaking 
proceeding; a subset of these comments argued that failure to go 
through rulemaking violated the Administrative Procedure Act (APA); 
other commenters urged EPA to undergo rulemaking in order to provide 
greater legal certainty to pesticide applicators. EPA disagrees with 
those commenters who contended that the APA rulemaking requirements 
apply to today's Interpretive Statement. The Interpretive Statement, 
like the Interim Statement and Guidance, is an ``interpretative'' rule 
under 5 U.S.C. 553(b) since it interprets the meaning of the term 
``pollutant'' in section 502(6) of the CWA as applied to certain 
pesticide applications. Therefore, it is exempt from notice and comment 
rulemaking requirements under the APA. Consistent with its status, the 
document is entitled an ``Interpretive Statement.''
    EPA agrees, however, with those commenters who emphasized the 
importance of providing clarity and greater legal certainty to parties 
who apply pesticides under the circumstances addressed by the Interim 
Statement and Guidance. Therefore, EPA is proposing to codify the 
substance of today's Interpretive Statement into EPA's NPDES 
regulations.
    Second, several other commenters argued that EPA's interpretation 
in the Interim Statement and Guidance is a significant departure from 
previous statements in amicus briefs the Agency filed in Headwaters, 
Inc., v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), and 
in Altman v. Town of Amherst, 47 Fed. Appx. 62 (2d Cir. 2002). EPA 
believes that, in some respects, these commenters have incorrectly 
characterized past government positions in these cases, consequently 
overstating the differences between the Interpretive Statement and the 
positions in those cases. Neither the CWA itself nor EPA's regulations 
address the question of whether pesticides are ``chemical wastes'' or 
``biological materials'' under section 502(6) of the Act when used for 
their intended purpose and in conformity with relevant requirements of 
FIFRA. Moreover, EPA does not have a longstanding interpretation of the 
statute or its regulations that resolves this issue. Nonetheless, EPA's 
position on these issues has evolved since the briefs were filed in 
these cases. EPA believes that its revised thinking best accords with 
Congressional intent reflected in the language, structure and purposes 
of the CWA. A more detailed explanation is contained in a January 24, 
2005, memorandum from EPA's General Counsel titled ``Analysis of 
Previous Federal Government Statements on Application of Pesticides to 
Waters of the United States in Compliance with FIFRA,'' which is 
available in the docket for this rule at http://www.epa.gov/edocket.

III. Summary of Revisions to Interpretive Statement

    EPA is issuing an Interpretive Statement that is substantially 
similar to the Interim Statement and Guidance. The Interpretive 
Statement contains the following changes from the Interim Statement and 
Guidance:
     EPA has modified the description of the first circumstance 
addressed in the statement to include other pests in addition to 
mosquito larvae and aquatic weeds, since pesticide applications 
directly to waters of the United States may target organisms other than 
the two identified in the Interim Statement and Guidance;
     EPA has modified the description of the second 
circumstance addressed in the statement to refer to pesticides (rather 
than insecticides) that are applied over water, and to refer to other 
pests in addition to mosquitos, since pesticide applications to control 
pests present over waters of the United States may target organisms 
other than mosquitos;
     EPA has modified the second circumstance to clarify that 
the reference to pests ``over water'' includes pests near water, since 
organisms targeted by pesticides covered by the Interpretive Statement 
are often found near as well as in, on or above waters;
     EPA has clarified that ``relevant requirements'' under 
FIFRA for purposes of this document refers to requirements relevant to 
protection of water quality; and
     Today's statement only specifically analyzes the 
applicability of NPDES permitting requirements to pesticide 
applications in the two circumstances identified therein. The 
Interpretive Statement now references, however, several other 
interpretive statements previously issued by the Agency and also notes 
that it has been and will continue to be the operating approach of the 
Agency that the application of agricultural and other pesticides in 
accordance with relevant FIFRA

[[Page 5096]]

requirements is not subject to NPDES permitting requirements.
    The full text of the Interpretive Statement is included below in 
section VI.

IV. Summary of Proposed Rule

    EPA is also proposing to revise the NPDES permit program 
regulations to incorporate the substance of the Interpretive Statement. 
The proposed revision would add a paragraph to 40 CFR 122.3's list of 
discharges that are excluded from NPDES permit requirements. The new 
paragraph would exclude applications of pesticides to waters of the 
United States consistent with all relevant requirements under FIFRA in 
the two circumstances described in the Interpretive Statement. As is 
explained in the Interpretive Statement, the pesticides are not 
pollutants under these circumstances and, therefore, are not discharges 
of pollutants subject to NPDES permitting requirements.
    EPA is soliciting public comment today on the proposed regulatory 
language. The Agency will formally respond to all public comments 
received on the Interim Statement during the comment period on today's 
proposed rule. Therefore, it is not necessary to resubmit comments that 
were previously submitted on the Interim Statement and Guidance.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and, therefore, is not subject to OMB review.

B. Paperwork Reduction Act

    This proposed action would not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. If promulgated, it would merely identify two circumstances 
in which the application of a pesticide to waters of the United States 
consistent with all relevant requirements under FIFRA does not 
constitute the discharge of a pollutant that requires a NPDES permit 
under the Clean Water Act.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information; processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business based 
on Small Business Administration (SBA) size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Because EPA 
proposes to identify two circumstances in which the application of a 
pesticide to waters of the United States consistent with all relevant 
requirements under FIFRA does not constitute the discharge of a 
pollutant that requires a NPDES permit under the Clean Water Act, this 
proposed action will not impose any burden on any small entity. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

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

[[Page 5097]]

officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this proposed rule to change an NPDES 
deadline would not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
The proposed rule would not impose any additional costs to these 
entities. Thus, today's proposed rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. For the same reason, 
EPA has determined that this rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. Thus, 
today's proposed rule is not subject to the requirements of section 203 
of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. If 
promulgated, it will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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

    Executive Order 13175, entitled, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.
    EPA specifically solicits additional comment on this proposed rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
regulation is not subject to Executive Order 13045 because it is not 
economically significant as defined under E.O. 12866, and because the 
Agency does not have reason to believe the environmental health and 
safety risks addressed by this action present a disproportionate risk 
to children. The proposed rule only interprets the legal scope of NPDES 
permits requirement under the CWA and does not change how pesticide 
applications are addressed under FIFRA.

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

    This proposed rule would not be subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866. The 
only effect of this proposed rule would be is to identify two 
circumstances in which the application of a pesticide to waters of the 
United States consistent with all relevant requirements under FIFRA 
does not constitute the discharge of a pollutant that requires a NPDES 
permit under the Clean Water Act.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standard bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposed rulemaking does not involve technical standards.

VI. Today's Interpretive Statement

    The text of the final Interpretive Statement follows:

Memorandum

    Subject: Interpretive Statement on Application of Pesticides to 
Waters of the United States in Compliance with FIFRA.
    From: Benjamin H. Grumbles (signed and dated January 25, 2005). 
Assistant Administrator for Water (4101).
    Susan Hazen (signed and dated January 25, 2005). Acting Assistant 
Administrator for Prevention, Pesticides and Toxic Substances (7101).
    To: Regional Administrators, Regions I-X.
    The Environmental Protection Agency (EPA) is issuing this 
interpretation of the Clean Water Act (CWA) to address issues regarding 
coverage under the CWA of pesticides regulated under the Federal 
Insecticide, Fungicide and Rodenticide Act (FIFRA) that are applied to 
or over, including near, waters of the United States. This Memorandum 
is issued to address the question of whether National Pollutant 
Discharge Elimination System (NPDES) permits under section 402 of the 
CWA are required for the applications of pesticides described below 
that comply with relevant requirements of FIFRA. EPA provided public 
notice of and solicited public comment on its interpretation of the CWA 
with regard to

[[Page 5098]]

this question. See 68 FR 48385 (Aug. 13, 2003). After considering the 
comments received in response to that notice, EPA is issuing this 
Interpretive Statement.
    The application of a pesticide to or over, including near, waters 
of the United States consistent with all relevant requirements under 
FIFRA does not constitute the discharge of a pollutant that requires a 
NPDES permit under the Clean Water Act in the following two 
circumstances:
    (1) The application of pesticides directly to waters of the United 
States in order to control pests. Examples of such applications include 
applications to control mosquito larvae, aquatic weeds or other pests 
that are present in the waters of the United States.
    (2) The application of pesticides to control pests that are present 
over waters of the United States, including near such waters, that 
results in a portion of the pesticides being deposited to waters of the 
United States; for example, when insecticides are aerially applied to a 
forest canopy where waters of the United States may be present below 
the canopy or when pesticides are applied over, including near, water 
for control of adult mosquitos or other pests.
    It is the Agency's position that these types of applications do not 
require NPDES permits under the Clean Water Act if the pesticides are 
applied consistent with all relevant requirements under FIFRA (i.e., 
those relevant to protecting water quality).\1\ Applications of 
pesticides in violation of the relevant requirements under FIFRA would 
be subject to enforcement under any and all appropriate statutes 
including, but not limited to FIFRA and the Clean Water Act.
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    \1\ As described in this Interpretive Statement, pesticides 
designed and registered for application to or over, including near, 
water are not considered to be pollutants requiring an NPDES permit 
under the CWA, regardless of whether the pesticides targets are in 
the water itself or over, including near, the water. If applied in 
accordance with all relevant requirements under FIFRA, EPA considers 
these pesticides to be products that are applied to perform their 
intended purpose of controlling target organisms and, therefore, are 
neither ``chemical wastes'' nor ``biological materials'' within the 
meaning of section 502(6) of the CWA. This includes any residual 
product that is an inherent, inextricable element of the pesticide 
application. For purposes of this Interpretive Statement, EPA 
considers the portion of a pesticide application that does not reach 
a target organism and any pesticide remaining in the water after the 
application is complete to be residual product, and not a pollutant 
requiring an NPDES permit, only if the product had been applied in 
accordance with all relevant requirements under FIFRA. However, the 
Agency continues to review whether and under what unique 
circumstances the material might later become a waste and, 
therefore, a pollutant. See also n.5, infra. If such residuals were 
to present a water quality problem, they could be addressed through 
nonregulatory planning and grant processes under the CWA.
    The Agency's interpretation is not inconsistent with the result 
in the Ninth Circuit's decision in Headwaters, Inc. v. Talent 
Irrigation District, 243 F. 3d 526 (9th Cir. 2001), because in the 
factual situation described by the district court, in EPA's view, 
the application did not comply with relevant FIFRA requirements and, 
therefore, was not the type of activity addressed by this 
Interpretive Statement.
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    EPA will continue to review the variety of other circumstances 
beyond the two described above in which questions have been raised 
about whether applications of pesticides that enter waters of the U.S. 
are regulated under the CWA, including other applications over land 
areas that may drift over and into waters of the U.S.
    Through a proposed rule in the Federal Register, EPA will solicit 
comment on incorporating the substance of this Interpretive Statement 
in the NPDES permit program regulations in 40 CFR part 122. 
Notwithstanding that action, however, the application of pesticides in 
compliance with relevant FIFRA requirements is not subject to NPDES 
permitting requirements, as described in this Interpretive Statement.
Background and Rationale
    In this Interpretive Statement, the Agency construes the Clean 
Water Act in a manner consistent with how the statute has been 
administered for more than 30 years. EPA does not issue NPDES permits 
solely for the direct application of a pesticide to target a pest that 
is present in or over a water of the United States, nor has it ever 
stated in any general policy or guidance that an NPDES permit is 
required for such applications.
    It has been and will continue to be the operating approach of the 
Agency that the application of agricultural and other pesticides in 
accordance with label directions is not subject to NPDES permitting 
requirements.
    In Headwaters, Inc. v. Talent Irrigation District, the U.S. Court 
of Appeals for the Ninth Circuit held that an applicator of herbicides 
was required to obtain an NPDES permit under the circumstances before 
the court. 243 F.3rd 526 (9th Cir. 2001).\2\ The Talent decision caused 
public health authorities, natural resource managers and others who 
rely on pesticides great concern and confusion about whether they have 
a legal obligation to obtain an NPDES permit when applying a pesticide 
consistent with FIFRA and, if so, the potential impact such a 
requirement could have on accomplishing their own mission of protecting 
human health and the environment. Since Talent, only a few states have 
issued NPDES permits for the application of pesticides. Most state 
NPDES permit authorities have opted not to require applicators of 
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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    \2\ In an amicus brief filed by the United States in the Talent 
case, the Agency did not address EPA's interpretation of the 
circumstances in which pesticides applied to or over water are 
``pollutants'' under the CWA's definition of that term. Rather, the 
Talent brief accepted the District Court's factual findings that a 
``person'' had discharged a ``pollutant'' from a ``point source'' 
into ``navigable waters'' but then disputed the District'' Court's 
legal determination that, even in these circumstances, the discharge 
did not require a CWA permit because the FIFRA label for the 
particular pesticide did not reference the NPDES permitting 
requirement. In contrast, this Interpretive Statement addresses the 
specific and distinct legal question of whether pesticides applied 
in the two specific circumstances discussed above are pollutants to 
begin with, and concludes they are not, provided the use of the 
pesticide complies with all relevant FIFRA requirements.
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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. EPA filed an amicus brief in that case 
setting forth the agency's views in the context of that particular 
case. In September 2002, the Second Circuit remanded the Altman case 
for further consideration and issued a Summary Order that stated, 
``Until the EPA articulates a clear interpretation of current law among 
other things, whether properly used pesticides released into or over 
waters of the United States can trigger the requirement for an NPDES 
permit [or a state-issued permit in the case before the court] the 
question of whether properly used pesticides can become pollutants that 
violate the Clean Water Act will remain open.'' 46 Fed. Appx. 62, 67 
(2d Cir. 2002).
    This Memorandum provides EPA's interpretation of how the CWA 
currently applies to the two specific circumstances listed above. Under 
those circumstances, EPA has concluded that the CWA does not require 
NPDES permits for a pesticide applied

[[Page 5099]]

consistent with all relevant requirements under FIFRA.\3\
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    \3\ EPA discusses the positions taken in Talent and Altman in 
greater detail in a Memorandum issued by EPA's General Counsel on 
January 24, 2005, titled ``Analysis of Previous Federal Government 
Statements on Application of Pesticides to Waters of the United 
States in Compliance with FIFRA.''
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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 or blocks the flow of water in irrigation systems. Under 
FIFRA, EPA is charged to consider the effects of pesticides on the 
environment by determining, among other things, whether a pesticide 
``will perform its intended function without unreasonable adverse 
effects on the environment,'' and whether ``when used in accordance 
with widespread and commonly recognized practice [the pesticide] will 
not generally cause unreasonable adverse effects on the environment.'' 
FIFRA section 3(c)(5).
    The application of a pesticide to waters of the U.S. would require 
an NPDES permit only if it constitutes the ``discharge of a pollutant'' 
within the meaning of the Clean Water Act.\4\ The term ``pollutant'' is 
defined in section 502(6) of the CWA as follows:

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

    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 
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industrial, municipal, and agricultural waste discharged into water.

    EPA has evaluated whether pesticides applied consistent with FIFRA 
fall within any of the terms in section 506(2), in particular whether 
they are ``chemical wastes'' or ``biological materials.'' EPA has 
concluded that they do not fall within either term. First, EPA does not 
believe that pesticides applied consistent with FIFRA are ``chemical 
wastes.'' The term ``waste'' ordinarily means that which is 
``eliminated or discarded as no longer useful or required after the 
completion of a process.'' The New Oxford American Dictionary 1905 
(Elizabeth J. Jewell & Frank Abate eds., 2001); see also The American 
Heritage Dictionary of the English Language 1942 (Joseph P. Pickett 
ed., 4th ed. 2000) (defining waste as ``[a]n unusable or unwanted 
substance or material, such as a waste product''). Pesticides applied 
consistent with FIFRA are not such wastes; on the contrary, they are 
EPA-evaluated products designed, purchased and applied to perform their 
intended purpose of controlling target organisms in the environment.\5\ 
Therefore, EPA concludes that ``chemical wastes'' do not include 
pesticides applied consistent with FIFRA.
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    \5\ Where, however, pesticides are a waste, for example when 
contained in stormwater regulated under section 402(p) of the CWA or 
other industrial or municipal discharges, they are pollutants and 
their discharge by a point source to a water of the U.S. may be 
controlled in an NPDES permit.
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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.\6\ With specific regard to biological pesticides, moreover, we 
think it far more likely that Congress intended not to include 
biological pesticides within the definition of ``pollutant.'' This 
interpretation is supported by multiple factors.
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    \6\ Taken to its literal extreme, such an interpretation could 
arguably mean that activities such as fishing with bait would 
constitute the addition of a pollutant.
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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 
relevant requirements under FIFRA are EPA-evaluated products that are 
intended to perform essentially similar functions, disparate treatment 
would, in EPA's view, not be warranted, and an intention to incorporate 
such disparate treatment into the statute ought not to be imputed to 
Congress.\7\ Moreover, at the time the Act was adopted in 1972, 
chemical pesticides were the predominant type of pesticide in use. In 
light of this fact, it is not surprising that Congress failed to 
discuss whether biological pesticides were covered by the Act. The fact 
that more biological pesticides have been developed since passage of 
the 1972 Act does not, in EPA's view, justify expanding the Act's reach 
to include such pesticides when there is no evidence that Congress 
intended them to be covered by the statute in a manner different from 
chemical pesticides. Finally, many of the biological pesticides in use 
today are reduced-risk products that produce a more narrow range of 
potential adverse environmental effects than many chemical pesticides. 
As a matter of policy, it makes little sense and would be inconsistent 
with the environmental purposes of the CWA to discourage the use of 
these products by treating them as subject to CWA permitting 
requirements when chemical pesticides are not. Caselaw also supports 
this interpretation. Ass'n to Protect Hammersley, Eld, and Totten 
Inlets v. Taylor Resources, 299 F.3d 1007, 1016 (9th Cir. 2002) 
(application of the esjudem generis canon of statutory interpretation 
supports the view that the CWA ``supports an understanding of * * * 
``biological materials,'' as waste material of a human or industrial 
process'').\8\
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    \7\ Further, some pesticide products may elude classification as 
strictly ``chemical'' or ``biological.''
    \8\ EPA's interpretation of section 502(6) with regard to 
biological pesticides should not be taken to mean that EPA reads the 
CWA generally to regulate only wastes. EPA notes that other terms in 
section 502(6) may or may not be limited in whole or in part to 
wastes, depending on how the substances potentially addressed by 
those terms are created or used. For example, ``sand'' and ``rock'' 
can either be discharged as waste or as fill material to create 
structures in waters of the U.S., and Congress created in section 
404 of the Act a specific regulatory program to address such 
discharges. See 67 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 whether or not it is a chemical waste or 
biological material within the meaning of the statute, and this can 
only be determined by considering the manner in which the pesticide is 
used. Where a pesticide is used for its intended purpose and its use 
complies

[[Page 5100]]

with all relevant requirements under FIFRA, EPA has determined that it 
is not a chemical waste or biological material and, therefore, is not a 
pollutant subject to NPDES permitting requirements. That coverage under 
the Act turns on the particular circumstances of its use is not 
remarkable. Indeed, when asked on the Senate floor whether a particular 
discharge would be regulated, the primary sponsor of the CWA, Senator 
Muskie (whose views regarding the interpretation of the CWA have been 
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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.\9\ Under this 
interpretation, a pesticide applicator is assured that complying with 
relevant requirements under FIFRA will mean that the activity is not 
also subject to the distinct NPDES permitting requirements of the CWA. 
However, like an unpermitted discharge of a pollutant, application of a 
pesticide in violation of relevant FIFRA requirements would be subject 
to enforcement under any and all appropriate statutes including, but 
not limited to, FIFRA and the CWA.
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    \9\ EPA's Talent brief suggested that compliance with FIFRA does 
not necessarily mean compliance with the CWA, and pointed out one 
difference between CWA and FIFRA regulation, i.e., individual NPDES 
permits could address local water quality concerns that might not be 
specifically addressed through FIFRA's national registration 
process. The position EPA is articulating in this memo would not 
preclude states from further limiting the use of a particular 
pesticide in accord with their authorities under 7 U.S.C. 136v(a) 
and Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 613-614 
(1991), to the extent otherwise authorized by Federal and state law. 
Furthermore, under section 510 of the CWA, States and other 
governmental entities are not precluded from adopting more stringent 
requirements to address local water quality concerns.
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    Please feel free to call us to discuss this memorandum. Your staff 
may call Louis Eby in the Office of Wastewater Management at (202) 564-
6599 or William Jordan in the Office of Pesticide Programs at (703) 
305-1049.

List of Subjects in 40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

    Dated: January 26, 2005.
Stephen L. Johnson,
Deputy Administrator.

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

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

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

Subpart A--[Amended]

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


Sec.  122.3  Exclusions.

* * * * *
    (h) The application of pesticides to waters of the United States 
consistent with all relevant requirements under FIFRA (i.e., those 
relevant to protecting water quality), in the following two 
circumstances:
    (1) The application of pesticides directly to waters of the United 
States in order to control pests. Examples of such applications include 
applications to control mosquito larvae, aquatic weeds or other pests 
that are present in the waters of the United States.
    (2) The application of pesticides to control pests that are present 
over waters of the United States, including near such waters, that 
results in a portion of the pesticides being deposited to waters of the 
United States; for example, when insecticides are aerially applied to a 
forest canopy where waters of the United States may be present below 
the canopy or when pesticides are applied over, including near, water 
for control of adult mosquitos or other pests.

[FR Doc. 05-1868 Filed 1-31-05; 8:45 am]
BILLING CODE 6560-50-P