United States Environmental Protection Agency
Public Notice of:

Draft National Pollutant Discharge Elimination System (NPDES)
Pesticide General Permit (PGP) for Point Source Discharges to Waters of the United States from the Application of Pesticides
Fact Sheet

                      A NOTE TO REVIEWERS AND COMMENTERS:
EPA proposes the text in this draft Fact Sheet as part of the Proposed 2021 PGP. Where the Fact Sheet reflects permit provisions that are unchanged from the 2016 PGP, EPA proposes the draft Fact Sheet text in present tense rather than conditional tense (e.g., "This Part requires" versus "This Part would require", or "The Operator must" versus "The Operator would be required to"). Where EPA proposes specific changes to the permit from the 2016 PGP, the Fact Sheet text reflects that (e.g., "EPA proposes that..."). With the inclusion of this note, reviewers and commenters should read and interpret all text as proposed and not final. EPA is proposing the Fact Sheet in this format so readers can see any proposed language as it might be written in the final permit and to improve editing efficiency during the permit finalization process.

Agency: United States Environmental Protection Agency
Action: Notice of Draft NPDES General Permit

CONTENTS
I.	Background	3
1.	Clean Water Act	3
2.	NPDES Permits	3
3.	History of Pesticide Application Regulation	4
4.	Court Decisions Leading to the CWA Regulation Concerning Pesticide Applications	5
II.	Structure of the Draft 2021 PGP	6
1.	General	6
2.	Conformance to Court Decisions	7
3.	Sharing of Responsibilities	10
III.	Summary of Draft 2021 PGP Conditions	11
1.	Coverage Under the Draft 2021 PGP	11
1.1	Eligibility	11
1.2	Authorization to Discharge Pollutants Under this Permit	20
1.3	Alternative Permits	32
1.4	Severability	33
1.5	Other Federal and State Laws	33
1.6	Federally Listed Endangered and Threatened Species and Designated Critical Habitat.	34
2.	Effluent Limitations	34
2.1	Applicators' Responsibilities	43
2.2	Decision-makers' Responsibilities	45
3.	Water Quality-Based Effluent Limitations	72
4.	Site Monitoring	87
4.1	Visual Monitoring Requirements for Pesticide Applicators	88
4.2	Visual Monitoring Requirements for all Operators	89
5.	Pesticide Discharge Management Plan (PDMP)	89
5.1	Contents of the PDMP	90
5.2	Pesticide Discharge Management Plan Modifications.	93
5.3	Pesticide Discharge Management Plan Availability.	94
6.	Corrective Action	94
6.1	Situations Requiring Revision of Pest Management Measures	94
6.2	Corrective Action Deadlines	95
6.3	Effect of Corrective Action	95
6.4	Adverse Incident Documentation and Reporting	96
6.5	Reportable Spills and Leaks	98
6.6	Documentation for Other Corrective Action	98
7.	Recordkeeping and Annual Reporting	99
7.1	Records to be Kept by all Operators (all Decision-makers and all Applicators)	99
7.2	Records to be Kept by all For-Hire Applicators	99
7.3	Records to be Kept by Small Entities, Submitting an NOI	100
7.4	Records to be Kept by Large Entities, Submitting an NOI	101
7.5	Retention of Records	102
7.6	Annual Reports	102
7.7	Annual Reporting for Any Decision-maker with Discharges of Pollutants to Waters of the United States Containing NMFS Listed Resources of Concern, as Defined in Appendix A of the Permit, and Who is a Small Entity	103
7.8	Electronic Reporting Requirement	104
8.	EPA Contact and Mailing Addresses	105
9.	Permit Conditions Applicable to Specific States, Indian Country, or Territories	105
10.	Permit Appendices	105
A.	Definitions and Acronyms	105
B.	Standard Permit Conditions	106
C.	Areas Covered	106
D.	Notice of Intent Form	106
E.	Notice of Termination Form	106
F.	Pesticide Discharge Evaluation Worksheet	107
G.	Annual Report Template	107
H.	Adverse Incident Report Template	107
I.	Endangered Species Procedures	107
IV.	Fact Sheet Appendices	109
APPENDIX A. List of pesticides and degradates which exceeded aquatic-life benchmarks in the USGS 2014 study and the CA Central Valley Regional 303(d) impairment list of pesticides.	109
APPENDIX B. Chemicals and Exceedances in USGS 2014 Study and Subsequent Mitigation Measures that Reduce Pesticides Residues in Waters.	112
APPENDIX C. Summary of Pesticide-Specific Exceedance Data and Risk Mitigation Actions.	113
APPENDIX D. Cost Impacts and Number of Entities Covered	115

Background
The United States Environmental Protection Agency (EPA) is proposing to reissue the National Pollutant Discharge Elimination System (NPDES) pesticide general permit (draft 2021 PGP) which authorizes the point source discharges of biological pesticides, and chemical pesticides that leave a residue, to waters of the United States. Once finalized, the latest version of the draft 2021 PGP will replace EPA's 2016 PGP, which expires on October 31, 2021. This fact sheet describes the draft 2021 PGP which is being proposed. Once finalized, the draft 2021 PGP will be available to Operators in geographic areas where EPA is the NPDES permitting authority. Appendix C of the draft 2021 PGP contains a list of areas eligible for coverage.
Conditions and requirements in the draft 2021 PGP remain largely unchanged from the 2011 PGP and 2016 PGP. Implementation of the 2011 PGP and 2016 PGP has been successful. The regulated community has raised very few implementation issues, which have been successfully resolved. The provisions in the draft 2021 PGP for pesticide applications during emergencies have been effectively implemented. EPA is not aware of any lawsuits brought against Operators discharging pollutants under EPA's 2016 PGP. However, in an effort to pursue continuous improvement to protect water quality and pursuant to the requirements in 40 CFR 124.10, EPA seeks comment on the draft 2021 PGP. Supporting information and materials for the draft 2021 PGP, are included in Docket ID No. EPA-HQ-OW-2020-0005 available at https://www.regulations.gov/.
The draft 2021 PGP includes some minor changes from the 2016 PGP which are discussed below:
Notices of Intent (NOIs)
Under the 2016 PGP, Decision-makers who were required to submit NOIs were automatically covered under the permit until January 12, 2017. Additional time was provided to allow new Decision-makers enough time to read and understand the permit requirements and comply with the recordkeeping and reporting requirements of the permit and to provide a transition period for existing Decision-makers under the 2011 PGP to resubmit NOIs under the 2016 PGP. For the 2021 permit, EPA is planning to finalize and issue with sufficient time to give Decision-makers time to prepare for filing a notice of intent to be covered under the new permit prior to the October 31, 2021 effective date. Under the draft 2021 PGP, on the effective date of the permit, Decision-makers who are required to submit an NOI are required to submit ten or thirty (for activities in the NMFS Listed Resources of Concern) days prior to discharging pollutants to a water of the United States. Other Operators who are not required to submit NOIs continue to be automatically covered.
NPDES eReporting Tool (NeT)
      Under the 2016 PGP, Notices of Intent (NOIs), Notices of Termination (NOTs), and annual reports must be prepared and submitted using EPA's eNOI System unless the Decision-maker has obtained a waiver from electronic reporting requirements. See Part 7.8 of the draft 2021 PGP for detailed electronic reporting requirements. EPA has moved or will move all electronic reporting for the NPDES program to the NPDES eReporting Tool (NeT). Under the draft 2021 PGP, Decision-makers must prepare and submit their NOIs, NOTs, and annual reports using EPA's NPDES eReporting Tool (NeT) unless the Decision-maker has obtained a waiver from electronic reporting requirements. Conditions to obtain a waiver from electronic reporting requirements under the draft 2021 PGP are: 1) if the Decision-maker is physically located in a geographic area (i.e., zip code or census tract) that is identified as under-served for broadband Internet access in the most recent report from the Federal Communications Commission; or 2) if the Decision-maker has limitations regarding available computer access or computer capability.
Appendix A, Definitions, Abbreviations, and Acronyms
   EPA has added in Appendix A of the draft 2021 PGP the definitions for the term "Pesticide discharges to waters of the United Stated from pesticide application" and updated "pesticide residue." These terms are identical to those in 40 CFR 122.2.
Appendix B, Standard Permit Conditions
   To ensure consistency with 40 CFR 122.41, the standard permit conditions are included in the permit.
Appendix C, Areas Covered
   The draft 2021 PGP is available in those areas where EPA is the NPDES permitting authority; these areas include Indian Country where there is no EPA-approved permitting program, federal facilities, and states that have not been approved to administer the NPDES program. The complete list of areas of geographic coverage of this permit, along with the NPDES permit numbers, are listed in Appendix C of the draft 2021 PGP. Subsequent to issuance of the 2016 PGP, the State of Idaho received authorization to administer the entire NPDES program; therefore, pesticide applications in Idaho (where Idaho has permitting authority) will be covered under the state's NPDES program. In addition, since 2016, several tribes were newly recognized by the federal government, which means that pesticide applications on those tribal lands may need coverage under the draft 2021 PGP or an individual permit. These changes are reflected in Appendix C of the draft 2021 PGP.
Clean Water Act
Section 301(a) of the Clean Water Act (CWA) provides that "the discharge of any pollutant by any person shall be unlawful" unless the discharge is in compliance with certain other sections of the Act. 33 U.S.C. 1311(a). The CWA defines "discharge of a pollutant" as "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." 33 U.S.C. 1362(12). A "point source" is any "discernible, confined and discrete conveyance" but does not include "agricultural stormwater discharges and return flows from irrigated agriculture." 33 U.S.C. 1362(14).
The term "pollutant" includes, among other things, "garbage... chemical wastes, biological materials ...and industrial, municipal, and agricultural waste discharged into water." 33 U.S.C. 1362(6).
One way a person may discharge a pollutant without violating the section 301 prohibition is by obtaining authorization to discharge (referred to herein as "coverage") under a section 402 NPDES permit (33 U.S.C. 1342). Under section 402(a)(1), EPA may "issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a)" upon certain conditions required by the Act.
NPDES Permits
An NPDES permit authorizes the discharge of a pollutant or pollutants into a receiving water under certain conditions. The NPDES program relies on two types of permits: individual and general. 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.
In contrast, a general permit 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). 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. Each permitting authority should review their permittees and geographic area and develop appropriate permits considering technology and water quality. In addition, states may issue a permit that has different requirements from EPA's permit for similar types of discharges of pollutants, as long as it satisfies the regulatory requirements of the NPDES program, the CWA, and state law.
Under 40 CFR 122.28, general permits may be written to cover categories of point sources having common elements, such as facilities that involve the same or substantially similar types of operations, that discharge the same types of wastes, or that are more appropriately regulated by a general permit. Given the significant number of pesticide operations requiring NPDES permit coverage and the discharges of pollutants common to these operations, it makes administrative sense to issue the general permit, rather than issuing individual permits to each Operator. Courts have approved of the use of general permits. See e.g., Natural Res. Def. Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977); EDC v. US EPA, 344 F.3d 832, 853 (9[th] Cir. 2003). The general permit approach allows EPA to allocate resources in a more efficient manner and to provide more timely coverage and may significantly simplify the permitting process for the majority of pesticide dischargers. As with any permit, the CWA requires the general permit to contain technology-based effluent limitations, as well as any more stringent limits when necessary to meet applicable state water quality standards. State water quality standards apply in the state and in the territorial seas, defined in section 502(8) of the CWA as extending three miles from the baseline. Pacific Legal Foundation v. Costle, 586 F.2d 650, 655-656 (9[th] Cir. 1978); Natural Resources Defense Council, Inc. v. U.S. EPA, 863 F.2d 1420, 1435 (9[th] Cir. 1988).
History of Pesticide Application Regulation
EPA regulates the sale, distribution and use of pesticides in the United States under the statutory framework of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to ensure that when used in conformance with FIFRA labeling directions, pesticides will not pose unreasonable risks to human health and the environment. All new pesticides, for which registration is required, must undergo a registration procedure under FIFRA during which EPA assesses a variety of potential human health and environmental effects associated with use of the product. Under FIFRA, EPA is required to consider the effects of pesticides on the environment by determining, among other things, whether a pesticide "will perform its intended function without unreasonable adverse effects on the environment," and whether "when used in accordance with widespread and commonly recognized practice [the pesticide] will not generally cause unreasonable adverse effects on the environment." 7 U.S.C. 136a(c)(5). In performing this analysis, EPA examines the ingredients of a pesticide, the intended type of application site and directions for use, and supporting scientific studies for human health and environmental effects and exposures. The applicant for registration of the pesticide must provide specific data from tests done according to EPA guidelines.
When EPA approves a pesticide for a particular use, the Agency imposes restrictions through labeling requirements governing such use. The restrictions are intended to ensure that the pesticide serves an intended purpose and avoids unreasonable adverse effects. It is illegal under section 12(a)(2)(G) of FIFRA to use a registered pesticide in a manner inconsistent with its labeling. States have primary authority under FIFRA to enforce "use" violations, but both the states and EPA have ample authority to prosecute pesticide misuse when it occurs. 7 U.S.C. 136j(a)(2)(G).
Court Decisions Leading to the CWA Regulation Concerning Pesticide Applications
In the past, several courts have addressed the question of whether the CWA requires NPDES permits for pesticide applications. These cases resulted in some confusion among the regulated community and other affected citizens about the applicability of the CWA to pesticides applied to waters of the United States.
On November 27, 2006, EPA issued a final rule (hereinafter called the "2006 NPDES Pesticides Rule") clarifying two specific circumstances in which an NPDES permit was not required to apply pesticides to or around water. They were: 1) the application of pesticides directly to water to control pests; and 2) the application of pesticides to control pests that are present over, including near, water where a portion of the pesticides will unavoidably be deposited to the water to target the pests, provided that the application is consistent with relevant FIFRA requirements in both instances. The rule became effective on January 26, 2007.
On January 7, 2009, the Sixth Circuit vacated EPA's 2006 NPDES Pesticides Rule under a plain language reading of the CWA. National Cotton Council of America v. EPA, 553 F.3d 927 (6[th] Cir., 2009). The Court held that the CWA unambiguously includes "biological pesticides" and "chemical pesticides" with residuals within its definition of "pollutant." Specifically, an application of chemical pesticides that leaves no excess portion is not a discharge of a pollutant, and the applicator need not obtain an NPDES permit. However, chemical pesticide residuals are pollutants as applied if they are discharged from a point source for which NPDES permits are required. Biological pesticides, on the other hand, are always considered a pollutant under the CWA regardless of whether the application results in residuals or not and require an NPDES permit for all discharges of pollutants from a point source.
As a result of the Court's decision to vacate the 2006 NPDES Pesticides Rule, after October 31, 2011 NPDES permits are required for discharges to waters of the United States of biological pesticides, and of chemical pesticides that leave a residue. EPA and all NPDES-authorized states and territories have developed and are implementing NPDES permits for pollutant discharges resulting from pesticide applications. EPA Regional offices and state NPDES authorities may issue additional general permits or individual permits if appropriate.
Structure of the Draft 2021 PGP
 General
This permit is written for the many specific areas of the country for which EPA remains the NPDES permitting authority. The permit is constructed in such a way that each Region will sign and issue the final PGP and include in that issuance CWA Section 401 certification language for areas in their Region covered by the permit. Specifically, the permit provides coverage for certain point source discharges of pollutants that occur in areas not covered by an authorized state NPDES permit program and includes specific areas (e.g., states, territories, Indian Country, or federal facilities) in all ten EPA Regions. The complete list of areas of geographic coverage of this permit, along with the NPDES permit numbers are listed in Appendix C of the draft 2021 PGP.
States and territories that are authorized to issue NPDES permits will continue to administer their own NPDES permits to cover such discharges of pollutants. Nothing in the federal regulations precludes a state from adopting or enforcing requirements in their own permits that are appropriate to address discharges of pollutants in their state or are more stringent or more extensive than those required by EPA under the NPDES regulations. See CWA section 510. In fact, the CWA is meant to serve as a baseline for state environmental protection. The CWA and corresponding NPDES regulations require that permits, at a minimum, include the requirements detailed in 40 CFR 122.44 (but not necessarily in the same way as in this permit). States are free to incorporate additional or different requirements that they feel are appropriate to protect water quality. Similarly, how EPA and states interpret information from which permit requirements are developed may differ. For example, the regulations, as written at 40 CFR 122.44(i) specify that monitoring requirements be included to assure compliance with permit limitations. One permit writer may make a best professional judgment (BPJ) determination that monitoring of discharges of pollutants reasonably should occur during pesticide application while a second permit writer may make a BPJ determination that monitoring of discharges of pollutants should reasonably be performed after pesticide application. It is reasonable that the two different permit writers may come to different conclusions about how best to incorporate this requirement into the permit.
Throughout the fact sheet (and permit), EPA uses consistent terms when referring to what activity or discharge of pollutants will be eligible for coverage and who will be responsible to comply with the terms of the permit. Specifically, the permit holder is referred to as the "Operator." This term has a similar meaning to the term "permittee" which is also used in the fact sheet; generally, the term permittee is specific to the period of time that an Operator or contractor is actually covered under the permit. More details on how an Operator may obtain permit coverage and the applicable permit requirements are provided in Part III of the fact sheet.
The permit is divided into nine parts: (1) Coverage Under This Permit, (2) Technology-Based Effluent Limitations, (3) Water Quality-Based Effluent Limitations, (4) Monitoring, (5) Pesticide Discharge Management Plan, (6) corrective action, (7) Recordkeeping and Annual Reporting, (8) EPA contact information and mailing addresses, and (9) Permit Conditions Applicable to Specific States, Indian Country, or Territories. Additionally, the permit includes nine appendices with additional conditions and guidance for permittees: (A) Definitions, Abbreviations, and Acronyms, (B) standard permit conditions, (C) Areas Covered, (D) Notice of Intent Form, (E) Notice of Termination Form, (F) Pesticide Discharge Evaluation Worksheet, (G) Annual Report Template, (H) Adverse Incident Report Template, and (I) Endangered Species Procedures.
Operators should carefully read each part of the permit to assess whether or what portion of the requirements in each part may apply to their activities. As will be discussed in more detail in Part III of the fact sheet, the permit establishes different requirements for different types of pesticide use patterns, different types of Operators, and different sizes of areas treated and managed for the control of pests. The organization of the permit is intended to clarify the applicable requirements for Operators to the greatest extent possible.
Conformance to Court Decisions
Similar to the 2016 PGP, EPA has structured this draft 2021 PGP to conform to relevant court decisions. One of these cases held that because the terms of the Nutrient Management Plan (NMP) employed by concentrated animal feeding operations (CAFO) imposed restrictions on discharges of pollutants, those restrictions amounted to effluent limitations that needed to be made part of the permit and to be subject to public and permit writer review. Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2[nd] Cir. 2005). In this respect, this permit is different from the CAFO requirements. In this permit, EPA explicitly establishes effluent limitations in Parts 2 and 3 that are independent of any documentation and recordkeeping requirements regarding implementation of the limitations. In a separate part of the permit (Part 5) there is a requirement to develop a Pesticide Discharge Management Plan (PDMP). The PDMP is not a limitation and does not itself impose requirements on discharges of pollutants. These are already imposed by the limitations in Parts 2 and 3. The PDMP is rather a tool for those Operators who are defined as Decision-makers to document, among other things, how Pest Management Measures will be implemented to comply with the permit's effluent limitations.
Effluent Limitations in the Draft 2021 PGP
Part 2 of the draft 2021 PGP contains the technology-based effluent limitations. Part 3 of the draft 2021 PGP contains the water quality-based effluent limitations. These Parts of the permit contain effluent limitations, defined in the CWA as restrictions on quantities, rates, and concentrations of constituents that are discharged. CWA section 502(11). Violation of any of these effluent limitations constitutes a violation of the permit. As is described in more detail in Part III.2 of the fact sheet, under the CWA these effluent limitations can be narrative rather than numeric.
The technology-based effluent limitations set forth in Part 2 of the draft 2021 PGP require the Operator to minimize the discharge of pollutants to waters of the United States from the application of pesticides. Consistent with the control level requirements of the CWA, the term "minimize" means to reduce and/or eliminate pollutant discharges to waters of the United States through the use of Pest Management Measures to the extent technologically available and economically achievable and practicable for the category or class of point sources covered under the permit, taking into account any unique factors relating to the Operators to be covered under the permit. The technology-based effluent limitations section is divided into two parts. The first part applies to all Applicators and addresses the general requirement to minimize discharges from the application of pesticides. In this part, all Applicators must minimize discharges of pollutants by using only the amount of pesticide product per application and frequency of pesticide applications necessary to control the target pest, performing regular maintenance activities, calibrating and cleaning/repairing application equipment, and assessing weather conditions in the treatment area. The second part requires certain Decision-makers to implement pest management measures that involve the following: (1) identifying and assessing the pest problem; (2) assessing effective pest management; and (3) following specified procedures for pesticide application (see Part 2.2 of the draft 2021 PGP).
In addition to the technology-based effluent limitations, Part 3 of the draft 2021 PGP contains the water-quality-based effluent limitations. The Operator must control its discharge of pollutants as necessary to meet applicable water quality standards. Any discharge of pollutants that results in an excursion of any applicable numeric or narrative EPA-approved state, territory, tribal or EPA-promulgated water quality standard is prohibited. In general, based on the data included in the record and the additional requirements in the permit, in addition to FIFRA's requirements and the data and information upon which FIFRA registrations are based, EPA expects that compliance with the technology-based effluent limitations and other terms and conditions in the permit will meet applicable water quality-based effluent limitations. To date, after over eight years of implementation of the prior permits, EPA does not have any evidence in the record that the existing and prior permits are causing water quality problems. However, if at any time the Operator or EPA determines that the discharge of pollutants causes or contributes to an excursion of applicable water quality standards, the Operator must take corrective actions as required in Part 6 of the draft 2021 PGP, and document and report the excursion(s) to EPA as required in Part 7 of the draft 2021 PGP. Furthermore, consistent with Parts 3.0 and 6.3 of the  draft 2021 PGP, EPA may impose additional water quality-based limitations on a site-specific basis, or require the Operator to obtain coverage under an individual permit, if information in an NOI, required reports, or from other sources indicates that, after meeting the technology-based limitations in the permit, the discharges of pollutants are not controlled as necessary to meet applicable water quality standards. EPA also notes that among the eligibility requirements for coverage under the permit are requirements that the permit does not cover discharges of any pesticide into a water impaired by a substance which either is an active ingredient in that pesticide or is a degradate of such an active ingredient, or into an Outstanding National Resource Water (40 C.F.R. 131.12),  often referred to as a "Tier 3 water" (except for pesticide applications made to restore or maintain water quality or to protect public health or the environment that either do not degrade water quality or only degrade water quality on a short-term or temporary basis). These eligibility conditions further help EPA to issue a general permit while protecting water quality on a water-body-specific basis.
Pesticide Discharge Management Plan (PDMP)
Distinct from the technology-based or water quality-based effluent limitation provisions in the permit, Part 5.0 of the draft 2021 PGP requires Decision-makers that must submit an NOI and that are large entities to prepare a PDMP to document the implementation of Pest Management Measures being used to comply with the effluent limitations set forth in Parts 2.0 and 3.0 of the draft 2021 PGP. A large entity, as defined in Appendix A of the draft 2021 PGP, is (1) a public entity that serves a population greater than 10,000 people or (2) a private enterprise that exceeds the Small Business Administration "size standards" as provided in 13 CFR 121.201.
In general, Part 5.0 of the draft 2021 PGP requires that the following be documented in the PDMP: (1) pesticide discharge management team information; (2) problem identification; (3) pest management options evaluation; (4) response procedures pertaining to spills and adverse incidents; (5) documentation to support eligibility considerations under other federal laws, and (6) signature requirements. The PDMP must be kept up-to-date and modified whenever necessary to document any corrective actions as necessary to meet the effluent limitations in the permit.
The requirement to prepare a PDMP is not an effluent limitation because it does not restrict quantities, rates, and concentrations of constituents that are discharged. CWA section 502(11). Instead, the requirement to develop a PDMP is a permit "term or condition" authorized under sections 402(a)(2) and 308 of the Act. Section 402(a)(2) states, "[t]he Administrator shall prescribe conditions for [NPDES] permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate." The PDMP requirements set forth in the permit are terms or conditions under the CWA because the Operator is documenting information on how it is complying with the effluent limitations (and inspection and evaluation requirements) contained elsewhere in the permit. Thus, the requirement to develop a PDMP and keep it updated is no different than other information collection conditions, as authorized by section 402(a)(2), in other permits. Failure to have a PDMP, where required, is a violation of the permit.
While Part 2 of the draft 2021 PGP requires the Operator to select Pest Management Measures to meet the effluent limitations in the permit, the Pest Management Measures themselves described in the PDMP are not effluent limitations because the permit does not impose on the Operator the obligation to comply with the PDMP; rather, the permit imposes on the Operator the obligation to meet the effluent limitations prescribed in Parts 2.0 and 3.0 of the draft 2021 PGP. Therefore, the Operator is free to change as appropriate the Pest Management Measures used to meet the effluent limitations contained in the permit. This flexibility helps ensure that the Operator is able to adjust its practices as necessary to ensure continued compliance with the permit's effluent limitations. However, the permit also contains a recordkeeping condition that requires that the PDMP be updated with any such changes in the Operator's practices. See Part 5.2 of the draft 2021 PGP. Thus, if an Operator's on-the-ground practices differ from what is in the PDMP, this would constitute a violation of the permit's recordkeeping requirement to keep the PDMP up-to-date, and not per se a violation of the permit's effluent limitations, which are distinct from the PDMP. EPA recognizes, however, that because the PDMP documents how the Operator is meeting the effluent limitations contained in the permit, not following through with actions identified by the Operator in the PDMP as the method of complying with the effluent limitations in the permit is relevant to evaluating whether the Operator is complying with the permit's effluent limitations.
Public Availability of Documents
Part 5.3 of the draft 2021 PGP requires that the Operator retain a copy of the current PDMP at the address listed on the NOI and it must be immediately available, at the time of an onsite inspection or upon request to EPA, state, tribal or local agencies governing wastewater discharges of pollutants and/or pesticide applications, and representatives of the United States Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS). While not required to be submitted to EPA, interested persons can request a copy of the PDMP through EPA, at which point EPA will likely 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 Confidential Business Information that may be contained within its PDMP is not released to the public. NOIs will be publicly available once submitted through the NPDES eReporting Tool (NeT). The NOIs generally will be available to the public for 10 days before permit coverage begins. During this time period, issues can be raised with EPA, which has the authority to deny coverage.
Sharing of Responsibilities
This general permit was developed with the understanding that there may be more than one responsible entity for a given discharge of pollutant. As structured, the permit provides for sharing of responsibilities to meet the end goal of discharges of pollutants 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 draft 2021  PGP  includes a definition of "Operator" in Appendix A of the draft 2021 PGP 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. The permit clarifies these responsibilities by identifying whether EPA expects these activities to be performed by all Operators, or just the Decision-maker or the Applicator.
Entities such as subcontractors that are hired by an owner or other entity but are under the supervision of such owner or entity generally are not Operators. Similarly, entities are likely not an Operator if, for example, they own the land, but the activities are being performed outside of their control (e.g., a public entity is spraying for mosquitoes over private property, or a private party is spraying for weeds on public lands leased from the federal government).
EPA encourages Operators to use already prepared information and explore possible cost savings by sharing responsibilities for implementing aspects of this permit. For example, a mosquito control district may have developed something for their FIFRA program and they could assume the overall coordination of an integrated pest management program while a hired contractor may be responsible for minimizing the pollutant discharge and for site monitoring and maintaining and calibrating pesticide application equipment. In instances where multiple Operators are responsible for the discharge from larger pesticide application activities, some form of written explanation of the division of responsibilities should be documented. However, any and all Operators covered under the permit are still responsible for any violation that may occur, though EPA may consider this written division of responsibilities when determining the appropriate enforcement response to a violation.
Summary of Draft 2021 PGP Conditions
 Coverage Under the Draft 2021 PGP
1.1	Eligibility
1.1.1	Activities Covered
The activities covered under this draft 2021 PGP remain unchanged from the 2016 PGP. Only Operators meeting the eligibility requirements outlined in the draft 2021 PGP may be covered under the permit. If an Operator does not meet the eligibility provisions described in Part 1.1 of the draft 2021 PGP, the Operator's point source discharges of pollutants to waters of the United States from the application of pesticides will be in violation of the CWA, unless the Operator has obtained coverage under another permit or the CWA exempts these discharges of pollutants from NPDES permit requirements. The activities covered by this permit generally include the use patterns and types of pest control activities described in the vacated 2006 NPDES Pesticides Rule. Under CWA section 502(14), agricultural stormwater and irrigation return flow are exempt from NPDES permits. Also, applications that do not reach waters of the United States do not need permit coverage. Thus, the draft 2021 PGP covers the discharge of pollutants (biological pesticides and chemical pesticides which leave a residue) to waters of the United States resulting from the following use patterns: (1) Mosquito and Other Flying Insect Pest Control; (2) Weed and Algae Control; (3) Animal Pest Control; and (4) Forest Canopy Pest Control, as summarized below:
Mosquito and Other Flying Insect Pest Control
This use pattern includes the application, by any means, of chemical and biological insecticides and larvicides into or over water to control insects that breed or live in, over, or near waters of the United States. Applications of this nature usually involve the use of ultra-low volume sprays or granular larvicides discharged over large swaths of mosquito breeding habitat and often are performed several times per year.
Weed and Algae Pest Control
This use pattern includes the application, by any means, of contact or systemic herbicides to control vegetation and algae (and plant pathogens such as fungi) in waters of the United States and at water's edge, including ditches and/or canals. Applications of this nature typically are single spot pesticide applications to control infestations or staged large scale pesticide applications intended to control pests in several acres of waterway. Pesticide applications in a treatment area may be performed one or more times per year to control the pest problem.
Animal Pest Control
This use pattern includes the application, by any means, of pesticides into waters of the United States to control a range of animal pests for purposes such as fisheries management, invasive species eradication, or equipment operation and maintenance. Applications of this nature are often made over an entire or large portion of a waterbody as typically the target pests are mobile. Multiple pesticide applications to a waterbody for animal pest control are often made several years apart.
Forest Canopy Pest Control
This use pattern includes pest control projects in, over, or to forest canopies (aerially or from the ground) to control pests in the forest canopy where waters of the United States exist below the canopy. Applications of this nature usually occur over large tracts of land and are typically made in response to specific pest outbreaks. EPA understands that for this use pattern pesticides will be unavoidably discharged into waters of the United States in the course of controlling pests over a forest canopy as a result of pesticide application. These pests are not necessarily aquatic (e.g., airborne non-aquatic insects) but are detrimental to industry, the environment, and public health. Note: EPA recognizes that mosquito adulticides are applied to forest canopies, and this application is covered under the "Mosquito and Other Flying Insect Pest Control" use pattern.
In the 2006 NPDES Pesticides Rule, EPA expressly noted that the rule did not cover either "spray drift"  -  the airborne movement of pesticide sprays away from the target application site into waters of the United States  -  or applications of pesticides to terrestrial agricultural crops where runoff from the crop, either as irrigation return flow or agricultural stormwater, discharges into waters of the United States.
Consistent with the 2006 NPDES Pesticides Rule and the 2016 PGP, this draft 2021 PGP does not cover spray drift resulting from pesticide applications. Instead, to address spray drift, EPA is actively engaged in several initiatives to help minimize pesticide drift problems such as: (1) evaluating potential for drift as a routine part of pesticides risk assessments; (2) in collaboration with experts, improving scientific models and methods for estimating drift and risks from drift; (3) strengthening labeling for new pesticides and when re-evaluating older pesticides; (improving the clarity and enforceability of product label directions and drift management restrictions; and (4) promoting applicator education and training programs. More information on EPA's work on reducing pesticide drift is available at https://www.epa.gov/reducing-pesticide-drift.
Irrigation return flow (such as runoff from a crop field due to irrigation of that field) and agricultural stormwater runoff do not require NPDES permits, as exempted from the definition of point source under section 502(14) of the CWA. Neither the 2006 NPDES Pesticides Rule, the Sixth Circuit Court vacatur of that rule, nor any version of the PGP have changed in any way the determination of whether certain types of stormwater discharges are required to obtain permit coverage, or under which permit coverage is required. This is true whether the discharge of pollutants contains pesticides or pesticide residues resulting from the application of pesticides. In particular, non-agricultural stormwater that may contain pesticides is required to obtain NPDES permit coverage if required under section 402(p) of the Clean Water Act. Existing stormwater permits for construction, industrial activity, and regulated municipal separate storm sewer systems (MS4s) already address pesticides in stormwater from those sources. Thus, stormwater is either: (a) already subject to NPDES permit requirements pursuant to section 402(p) of the CWA or (b) is a discharge for which NPDES permit coverage is not currently required under section 402(p). The regulations that specify what types of stormwater require NPDES permits can be found in 40 CFR §122.26 and 122.30-122.37.
EPA determined that the four use patterns included in the draft 2021 PGP would encompass the majority of pesticide applications that would result in point source discharges of pollutants to waters of the United States and generally represent the use patterns intended to be addressed by the 2006 rule that is now vacated. This permit does not cover, nor is permit coverage required, for pesticides applications that do not result in a point source discharge of pollutants to waters of the United States, such as for the purpose of controlling pests on agricultural crops, forest floors, or range lands. However, the application of herbicides in waters of the United States and the control of pests on plants grown in waters of the United States, such as perennial obligate hydrophytes, is within the permit's scope of coverage. This fact sheet does not identify every activity which may involve a point source discharge of pollutants to waters of the United States that would require a permit; rather, the fact sheet focuses on the activities for which coverage under the draft 2021 PGP is available. The existence of this general permit does not alter the requirement that discharges of pollutants to waters of the United States that are not covered by this permit be covered by an individual permit or another general permit.
Scope of Permit
The Sixth Circuit Court of Appeals found that if a chemical pesticide leaves any excess or residue after performing its intended purpose, such excess or residue would be considered a pollutant under the CWA. The Court also found that, unlike chemical pesticides, not only would the residue and excess quantities of a biological pesticide be considered a pollutant, but so too would the biological pesticide itself under the CWA.
     As defined in 40 CFR 122.2, "Pesticide residue for the purpose of determining whether an NPDES permit is needed for discharges of pollutants to waters of the United States from pesticide application, means that portion of a pesticide application that is discharged from a point source to waters of the United States and no longer provides pesticidal benefits. It also includes any degradates of the pesticide."
A permit would not be necessary if it is determined that pesticide residual does not enter waters of the United States. The Operator applying pesticides with a discharge to waters of the United States can support their determination with scientific data. Such data should show what level of the pesticide can be detected in water, and at what level in water the pesticide provides a pesticidal benefit. Such data should address the properties of the chemical pesticide under different water conditions (e.g., different pH, organic content, temperature, depth, etc.) that might affect the pesticide's properties.
EPA offers the following guidance with respect to the use patterns of chemical pesticides covered by this general permit.
     1.	If the application of a chemical pesticide is made over waters of the United States to control pests over the water, any amount of the pesticide that falls into waters of the United States is "excess" pesticide and would require coverage by an NPDES permit.
     2.	If the application of a chemical pesticide is made into waters of the United States to control a pest in such waters, any amount of the pesticide that remains in those waters and no longer provides any pesticidal benefit is a "residual" and would require coverage by an NPDES permit. See 40 CFR 122.2 for the definition of pesticide residue.
     3.	This permit authorizes discharges of pollutants associated with four categories of pesticide application activities: mosquito and other flying insect pest control, weed and algae pest control, animal pest control, forest canopy pest control. As noted above, only point source discharges of pollutants to waters of the United States require a permit, and it is beyond the scope of this fact sheet to identify all specific activities that do or do not require a permit. However, to the extent that activities that fall within the four covered categories require a permit, they can be authorized by this general permit if all eligibility requirements are met. For two of the categories, weed and algae pest control and animal pest control, the permit specifies that covered activities include applications to control pests "in water and at water's edge." EPA intends for the phrase "at water's edge" to allow coverage of activities targeting pests that are not necessarily "in" the water but are near the water such that control of the pests results in a point-source discharge of pollutants to waters of the United States. The category forest canopy pest control is for applications to a forest canopy. EPA intends that this can include both mature and immature forest canopies, including canopies that may not be continuously connected, where control of pests associated with the canopy (i.e., branches and leaves of the trees) results in a point source discharges of pollutants to waters of the United States.
For purposes of this permit, EPA is relying on existing regulatory definitions in 40 CFR 174.3 and 158.2100(a) developed under FIFRA to define the term "biological pesticides." For purposes of this permit, EPA identifies biological pesticides (also called "biopesticides" under FIFRA regulations) to include microbial pesticides [40 CFR 158.2100(b)], biochemical pesticides [40 CFR 158.2000(a)(1)] and plant-incorporated protectants. [40 CFR 174.3]
EPA recognizes that there are many site-specific situations which will determine whether a pesticide application operation needs permit coverage. EPA is not attempting to define all such situations in this fact sheet. Additionally, any pesticide application activities that do not fall within the four use patterns covered by this permit will require coverage under some other NPDES permit if those activities result in point source discharges of pollutants to waters of the United States. However, the Agency does want to make it clear that to the extent pesticide application operations need permit coverage, this permit is available for the four pesticide use categories.
Additionally, as described in Part I.4 of the fact sheet, the permit does not cover discharges of pollutants that, by law, are not required to obtain NPDES permit coverage. Of note, the CWA specifically excludes from the definition of point source, "agricultural stormwater discharges and return flow from irrigated agriculture." Nothing in this permit changes the effect of those statutory exemptions.
See Appendix D of the fact sheet for discussion on the cost impact and the universe of Operators covered under this permit.
1.1.2	Limitations on Coverage
<IP_ADDRESS>	Discharges of Pollutants to Water Quality Impaired Waters
This permit specifies eligibility requirements for coverage under this general permit for discharge of pollutants to impaired waters. The requirements remain unchanged from the 2011 PGP and 2016 PGP. Coverage under the permit is only available for certain discharges of pollutants to impaired waters. Discharges of pollutants 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 of pollutants to waters impaired for temperature or some other indicator parameter, or for physical impairments such as "habitat alteration" are also eligible for draft 2021 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. For example, application of the pesticide copper sulfate to a waterbody impaired for either copper or sulfates would not be eligible for coverage under this permit, because copper sulfate can degrade into these two substances. In this instance, the Operator would have to choose between obtaining coverage under an individual permit for such a discharge or selecting some other means of pest management, e.g., using mechanical means or a different pesticide active ingredient.
For this permit, EPA determined that it does not have information warranting a limitation for all impaired waters regardless of the impairment. In fact, the application of a pesticide to water in some instances actually improves the quality of the water, such as when used to control algae growth that can deplete oxygen levels in water. It is important to note that this permit allows EPA, based on additional information, to opt not to approve coverage under the draft 2021 PGP, or at a later date to require an Operator covered under the draft 2021 PGP to apply for coverage under an individual permit.
For purposes of this permit, impaired waters are those that have been identified by a state, territory, tribe, or EPA pursuant to Section 303(d) of the CWA as not meeting applicable water quality standards. Impaired waters for purposes of the draft 2021 PGP include both waters with EPA-approved and EPA-established Total Maximum Daily Loads (TMDLs), and those for which EPA has not yet approved or established a TMDL. (A list of impaired waters, along with the pollutants or pollution identified as the cause of the impairment is available at https://www.epa.gov/tmdl). Since the 303(d) list provides the most readily-available evidence of impairment, Operators should use it when deciding whether their discharges of pollutants meet the eligibility requirements regarding waterbodies impaired for specific pesticides. Thus, these requirements will further ensure protection of water quality.
Also, several states have listed waters as impaired for "pesticides" but have not identified the specific pesticide for which the waterbody is impaired. Without additional information suggesting that the waterbody is impaired for a specific active ingredient or degradate of that active ingredient, EPA is providing coverage under this permit for discharges of pollutants to waters that are impaired generally for "pesticides." The Agency 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 draft 2021 PGP for discharges of those named pesticide active ingredients or degradates of such. Additional discussion of existing impairments identified for which pesticides are identified as the source of the impairment is provided in Part III.3 of the fact sheet.
<IP_ADDRESS>	Discharges of Pollutants to Waters Designated as Tier 3 for Antidegradation Purposes
This permit specifies requirements for coverage under this general permit for discharges of pollutants to Tier 3 waters. These waters are called "Outstanding National Resource Waters" in the regulations.  40 C.F.R. 131.12.  The requirements remain unchanged from the 2011 PGP and 2016 PGP. This permit provides coverage for discharges of pollutants made to restore or maintain water quality or to protect public health or the environment that either do not degrade water quality or only degrade water quality on a short-term or temporary basis. This is consistent with EPA's longstanding view that "[s]tates may allow some limited activities which result in temporary and short-term changes in water quality. Such activities are considered to be consistent with the intent and purpose of [a Tier 3 water]." 48 FR 51400, 51403 (1983).
States and tribes provide the most stringent level of antidegradation protection, i.e., Tier 3 protection. These waters are often regarded as the highest quality waters of the United States, but the Tier 3 designation also provides special protection for waters of exceptional ecological significance, i.e., those which are important, unique, or sensitive ecologically. Except for certain temporary changes, Tier 3 protection means that water quality cannot be lowered in such waters. In broad terms, EPA's view of "temporary" is weeks and months, not years. States and tribes make the decision of which water bodies to designate as Tier 3. A list of Tier 3 waters in areas where the draft 2021 PGP is available can be accessed on the Internet at https://www.epa.gov/npdes/pesticide-permitting.
This permit requires additional documentation and reporting for discharges of pollutants to Tier 3 waters. See Part 5.1.2 of the draft 2021 PGP. Any Decision-maker planning to discharge to a Tier 3 water must submit a Notice of Intent (NOI) consistent with Part 1.2.2 of the draft 2021 PGP. NOIs for such discharges of pollutants are required to identify the Tier 3 water by name, and provide a discussion of the environmental problem and demonstration that the pollutant discharge is necessary to protect water quality, the environment, and/or public health. This NOI requirement includes the requirement for any Decision-maker already covered under the draft 2021 PGP who wants to discharge to a Tier 3 water at a later date, to submit an updated NOI containing the information identified above for discharges of pollutants to Tier 3 waters. Additionally, NOIs for any discharges of pollutants to Tier 3 waters must be submitted at least 10 days before beginning discharge unless discharges of pollutants are in response to a Declared Pest Emergency Situation, in which case, an NOI is due for such discharges of pollutants no later than 15 days after beginning discharge (if water contains NMFS Listed Resource of Concern) or 30 days after beginning discharge (if no NMFS Listed Resource of Concern). Decision-makers are required to submit an NOI consistent with the earliest due date identified in Table 1-2 of the draft 2021 PGP.
Of note, some states have adopted alternative approaches to designating Tier 2 or Tier 3 waters. These are collectively referred to as "Tier 2.5" waters since they fall between Tiers 2 and 3 in terms of characteristics and regulations supporting them. Tier 2.5 waters are commonly described as providing protection more stringent than Tier 2 but allowing some added flexibility that a Tier 3 water would not. Refer to Memorandum from William Diamond (Former Director, Standards and Applied Science Division) to Victoria Binetti (Chief, Region III, Program and Support Branch), June 13, 1991. Examples of Tier 2.5 waters exist in Massachusetts, which designates "outstanding resource waters" (ORWs). These waters have exceptional sociologic, recreational, ecological and/or aesthetic values and are subject to more stringent requirements under both the Massachusetts Water Quality Standards and the Massachusetts Stormwater Management Standards. ORWs include vernal pools certified by the Natural Heritage Program of the Massachusetts Department of Fisheries and Wildlife and Environmental Law Enforcement, all Class A designated public water supplies with their bordering vegetated wetlands, and other waters specifically designated. The draft 2021 PGP does not restrict eligibility for discharges of pollutants to Tier 2.5 waters.
<IP_ADDRESS>	Discharges of Pollutants Currently or Previously Covered by Another Permit
Part <IP_ADDRESS> of the draft 2021 PGP describes situations where an Operator is ineligible for coverage under this permit because of coverage under another permit. The permit provisions remain unchanged from the 2011 PGP and 2016 PGP. These include discharges of pollutants currently covered under an NPDES permit and discharges of pollutants from activities where the associated NPDES permit has been or is in the process of being denied, terminated, or revoked by EPA (although this last provision does not apply to the routine reissuance of permits every five years).
<IP_ADDRESS>	Endangered and Threatened Species and Critical Habitat Protection
The draft 2021 PGP specifies procedures to assist in protecting federally-listed endangered and threatened species and federally designated critical habitats under the Endangered Species Act (ESA). These procedures are from EPA's 2016 PGP. EPA is currently in consultation with the Services (National Marine Fisheries Service (NMFS) and United States Fish and Wildlife Service (FWS)) for the reissuance of this permit. Based on the results of consultation with the Services, EPA may include additional or altered conditions in the final permit.
The limitations described below reflect requirements that were added in the 2016 PGP following formal consultation with NMFS and its issuance of a Biological Opinion on October 17, 2016: The provisions described below are designed to ensure that discharges of pollutants covered under the draft 2021 PGP are not likely to adversely affect NMFS Listed Resources of Concern, except as provided in Criterion B, C, and, for 60 days, D, in Part <IP_ADDRESS> of the  draft 2021 PGP. These permit provisions include eligibility criteria for permit coverage as well as requiring compliance with technology-based effluent limitations in Part 2.2 of the draft 2021 PGP and recordkeeping and reporting requirements for Decision-makers with discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern.
The provisions described below only apply to Decision-makers subject to the draft 2021 PGP that are located in the limited areas where the NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP, are present. The 48 states and territories authorized to administer their own NPDES programs are not bound by the same ESA consultation requirements that bind EPA in the issuance of its permits, and thus, these permit terms are not federal NPDES requirements that the NPDES-authorized states must adopt. Many states have their own endangered species-related requirements under state law, and these may be reflected in state permits.
Part <IP_ADDRESS> of the draft 2021 PGP requires Operators to certify that they are eligible for permit coverage under one of the six criteria (A-F) as follows:
Criterion A. Pesticide application activities will not result in a point source discharge to one or more waters of the United States containing National Marine Fisheries Service (NMFS) Listed Resources of Concern, as defined in Appendix A, for this permit. In this case, no further certification is necessary. Decision-makers not otherwise required to submit an NOI are not required to do so merely to check Criterion A. However, Decision-makers who must submit an NOI anyway should check Criterion A if they do not discharge to a water of the United States containing NMFS Listed Species of Concern.
Criterion B. Pesticide application activities will discharge to one or more receiving waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A, but consultation with NMFS under section 7 of the ESA has been concluded for pesticide application activities covered under this permit. Consultations can be either formal or informal, and would have occurred only as a result of a separate federal action. The consultation addressed the effects of pesticide discharges and discharge-related activities on federally-listed threatened or endangered species and federally-designated critical habitat, and must have resulted in either:
     i.	A biological opinion from NMFS finding no likely jeopardy to listed species and no destruction/adverse modification of federally-designated critical habitat; or
     ii.	Written concurrence from NMFS with a finding that the pesticide discharges and discharge-related activities are not likely to adversely affect federally-listed species or federally-designated critical habitat.
Criterion C. Pesticide application activities will discharge to one or more waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A, but any "take" of these resources associated with such pesticide application activities has been authorized through NMFS' issuance of a permit under section 10 of the ESA, and such authorization addresses the effects of the pesticide discharges and discharge-related activities on federally-listed species and federally-designated critical habitat. (The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. See Section 3 of the Endangered Species Act, 16 U.S.C. § 1532(19).)
Criterion D. Pesticide application activities were, or will be, discharged to one or more waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A, but only in response to a Declared Pest Emergency Situation. Decision-makers must provide EPA with their rationale supporting the determination whether the discharge is likely to adversely affect NMFS Listed Resources of Concern, including the description of appropriate measures to be undertaken to avoid or eliminate the likelihood of adverse effects.
Criterion E. Pesticide application activities for which permit coverage is being requested in the NOI will discharge to one or more waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A. Eligible discharges include those where the Decision-maker includes in the NOI written correspondence from NMFS that pesticide application activities performed consistent with appropriate measures will avoid or eliminate the likelihood of adverse effects. Eligibility under this criterion is contingent upon the Decision-maker following the measures described in correspondence from NMFS designed to avoid or eliminate the likelihood of adverse effects.
Criterion F. Pesticide application activities for which permit coverage is being requested in the NOI will discharge to one or more waters of the United Stated containing NMFS Listed Resources of Concern, as defined in Appendix A. Eligible discharges include those from pesticide application activities that are demonstrated by the Decision-maker as not likely to adversely affect NMFS Listed Resources of Concern or that the pest poses a greater threat to the NMFS Listed Resources of Concern than does the discharge of the pesticide. Decision-makers must provide EPA with their documentation demonstrating the basis for their finding.
Criteria E and F, at least 30 days prior to beginning to discharge, require an Operator to demonstrate:
 Pesticides being discharged or to be discharged are known not to cause adverse effects, or are or will be discharged at concentrations determined not to cause adverse effects, to NMFS Listed Resources of Concern (Criterion F), or
 NMFS Listed Resources of Concern are or will not be exposed to pesticide pollutants produced by the discharge (e.g., species will not occur in the discharge area during that time of year, the species will not be present in the hydrologic unit in which the discharge will occur, the species is not present because of the presence of the pest being controlled, etc) (Criterion F), or
 Other considerations that demonstrate the discharge is not likely to adversely affect NMFS Listed Resources of Concern (Criterion F), or
 They have obtained written correspondence from NMFS indicating that pesticide application activities performed consistently with appropriate measures will avoid or eliminate the likelihood of adverse effects to Listed Resources of Concern. Eligibility under this criterion is contingent upon the Decision-maker following the measures described in correspondence from NMFS designed to avoid or eliminate the likelihood of adverse effects (Criterion E).
Any Decision-maker planning to discharge pollutants to waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP, must submit a Notice of Intent consistent with Part 1.2.2 of the draft 2021 PGP. The specific requirements of the draft 2021 PGP NOI are identified in the NOI form provided in Appendix D of the draft 2021 PGP. Also, refer to Appendix I of the draft 2021 PGP for the ESA Review Procedures to determine eligibility prior to submittal of the NOI. This NOI requirement includes the requirement for any Decision-maker already covered under the permit who discharges pollutants to any waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP, that were not identified in a previously submitted NOI, to submit an updated NOI containing the information identified in Appendix D of the draft 2021 PGP. Additionally, NOIs for any discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP, must be submitted at least 30 days before beginning discharge. EPA may authorize certain discharges of pollutants in less than 30 days, but no fewer than 10 days, for any discharges of pollutants under Criterion B, C, or E of Part <IP_ADDRESS> of the draft 2021 PGP. Where eligibility is determined consistent with Criterion D, response to a Declared Pest Emergency Situation, an NOI is due for such discharges of pollutants no later than 15 days after beginning discharged.

1.2	Authorization to Discharge Pollutants Under this Permit
1.2.1	How to Obtain Authorization
The 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. However, those regulations, at §122.28(b)(2)(v), provide that at the discretion of the Director (which, for the draft 2021 PGP, is EPA), certain discharges of pollutants can be authorized under a general permit without submitting an NOI where EPA finds that an NOI would be inappropriate for such discharges. In making such a finding, EPA must consider the following criteria: the type of discharge; the expected nature of the discharge; the potential for toxic and conventional pollutants in the discharges; the expected volume of the discharges of pollutants; other means of identifying discharges of pollutants covered by the permit; and the estimated number of discharges of pollutants to be covered by the permit.
This draft 2021 PGP is requiring submission of an NOI for certain discharges of pollutants and is providing automatic coverage for certain other discharges of pollutants. The requirements remain unchanged from the 2011 PGP and 2016 PGP. EPA is requiring submission of an NOI for certain discharges of pollutants and is providing automatic coverage for certain other discharges of pollutants for which EPA determined it would be inappropriate to require an NOI. EPA is exempting Operators of pesticide research and development activities from the need to submit an NOI because these activities are typically smaller and in many instances, are already covered under FIFRA's section 5 (experimental use permits). Similarly, the draft 2021 PGP exempts these activities from many requirements of the permit where such activities are inconsistent with the research plan.
As discussed in Appendix D of the fact sheet, EPA expects a large number of discharges of pollutants from the application of pesticides spanning a wide range of Operators and activities will require NPDES permit coverage. Conditions and requirements in this permit remain largely unchanged from the 2011 PGP and 2016 PGP. EPA's consideration of the regulatory criteria in §122.28(b)(2)(v) is as follows based on information collected in the 2011 PGP development:
Type and Expected Nature of Discharge
All discharges of pollutants that would be authorized by the draft 2021 PGP involve either (1) applications made directly into or over waters of the United States to control pests in or over the water, or (2) applications to control pests near the water's edge such that pesticides will be unavoidably deposited into waters of the United States. The draft 2021 PGP is structured by pesticide use patterns. These use patterns were developed to include discharges of pollutants that are similar in type and nature, and therefore represent the type of discharges of pollutants and expected nature of the discharges of pollutants covered under this permit. The draft 2021 PGP covers the four use patterns described in Part III.1.1 of the fact sheet. EPA evaluated each use pattern independently with the goal of identifying the significant activities resulting in discharges of pollutants that should be covered under this draft 2021 PGP.
Potential for Toxic and Conventional Pollutants in the Discharge
EPA does not expect the potential for toxic and conventional pollutants in the discharges from pesticides to vary among use patterns. EPA would expect, however, that the potential for impacts from high concentrations of toxic or conventional pollutants in the discharge would be smaller when fewer acres or linear feet are treated.
Expected Volume of Discharge
EPA also considered the expected volume of discharges of pollutants from each use pattern. It is difficult to estimate the expected volume of discharges of pollutants for each use pattern because Pest Management Measures used by Operators to meet the permit's technology based effluent limitations may vary based on site-specific conditions. For example, the volume of the discharge may vary depending on the specific pesticide being used, the intensity of the pest pressure based on the specific pest problem, and the pest management strategy deemed to be most effective for the pest problem. Moreover, minimizing the discharge of pollutant necessary to manage pests successfully will vary among Operators depending on which Pest Management Measures the Operator uses. Nonetheless, EPA expects that, in general, the volume of the discharge will vary proportionally with the number of acres and linear miles treated.
Other Means to Identify Discharges of Pollutants
EPA also considered other means of identifying types of discharges of pollutants covered by this permit. EPA may be able to identify pollutant discharges from Operator-submitted data, ambient water sampling data, and other information submitted by pollutant dischargers pursuant to federal or state law. However, EPA recognizes that the availability and quality of these data may be limited and highly variable across the scope of activities and areas covered under the draft 2021 PGP.
Number of Discharges of Pollutants
Last, EPA considered the estimated number of discharges of pollutants to be covered by the permit. While the exact number of entities and thus the number of discharges of pollutants that may be covered by the permit is unknown, EPA projects based on earlier estimates for the PGP that the draft 2021 PGP will cover approximately 14,000 Operators per year in the areas where EPA is the NPDES permitting authority. Of this total, a large majority represent dischargers performing small pesticide applications that EPA considers to have very low potential for impact. Thus, requiring an NOI from all dischargers would be a large burden of little value for permitting authorities and permittees alike. See Appendix D of the fact sheet for discussion on the universe of Operators covered under this permit.

In analyzing these regulatory criteria, the Agency gave particular weight to the expected volume of the discharges of pollutants and the estimated number of discharges of pollutants to be covered by the permit. After considering the universe of entities to be covered under the permit, EPA found a logical break between entities applying pesticides to larger areas versus smaller areas, and a difference between the types of entities generally responsible for performing such pest control activities. As a result, NOI requirements are based on the size of areas treated and the entity making the decision to perform pesticide applications. In addition, EPA identified a need for additional information for any discharges of pollutants to outstanding national resource waters (Tier 3 waters) and to waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP, and is including NOI requirements for all discharges of pollutants to these waters as well.
1.2.2	Decision-makers Required to Submit an NOI
To obtain authorization under the draft 2021 PGP, Operators (Decision-makers and Applicators) must meet the Part 1.1 eligibility requirements of the draft 2021 PGP. If required by Part 1.2.2 of the draft 2021 PGP, certain Decision-makers must submit a complete and accurate NOI no later than the appropriate deadline described in Part 1.2.3 of the draft 2021 PGP.
Table 1-1 in Part 1.2.2 of the draft 2021 PGP identifies which Decision-makers are or will be required to submit an NOI. Based on the analysis outlined in Part 1.2.1 above, For-Hire Applicators, who are not Decision-makers as defined in Appendix A of the draft 2021 PGP, are not required to submit NOIs. In addition, Decision-makers who apply pesticides to relatively small areas are not required to submit NOIs (except for certain Operators that the Agency finds have a significant role in pest control for public health and environmental protection and should be expected to provide Agency notice of such activities). Nonetheless, EPA emphasizes that even if an NOI is not required, Operators covered automatically are still subject to all applicable requirements. EPA is requiring NOIs from the following types of Decision-makers:
Decision-makers exceeding an annual treatment area threshold;
Other Decision-makers specifically in the business of pest control;
Decision-makers discharging pollutants to Tier 3 waters; and
Decision-makers discharging pollutants to waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP.
This permit provision remains unchanged from the 2011 PGP and 2016 PGP. A more detailed discussion of EPA's rationale for requiring NOIs for these three categories of Decision-makers follows.
NOIs for Decision-Makers Exceeding an Annual Treatment Area Threshold
During the 2011 PGP development, EPA developed annual treatment area thresholds for each use pattern that will only require larger Operators applying pesticides to larger areas to submit an NOI. To determine the appropriate annual treatment area thresholds that would trigger the NOI requirement, EPA's Office of Water, Office of Chemical Safety and Pollution Prevention and the ten EPA Regional Offices engaged in discussions with USDA, states as co-regulators, and representatives from industry including pesticide registrants, applicators, and land managers. Based on these discussions, the comments received during the 2011 PGP development, and EPA's best professional judgment, EPA developed annual treatment area thresholds that establish NOI requirements for applications to larger areas, which are believed to have the greatest potential for impact to waters of the United States. EPA recognizes there are many unknowns concerning the size, organization, and activities of the permitted universe. Considerable variation in the availability of data and in the consistency of requirements across regions and states resulted in EPA relying heavily on its best professional judgment in setting the NOI annual treatment area thresholds for each of the use patterns. If a Decision-maker, otherwise not required to submit an NOI, anticipates it will exceed an applicable annual treatment area threshold during any time in a given calendar year of the permit cycle, that Decision-maker must then submit an NOI consistent with the due dates described in Part 1.2.3 of the draft 2021 PGP.
When calculating the size of the treatment area for comparing to an annual treatment area threshold, EPA uses the term "at water's edge adjacent to waters of the United States" to identify those areas where pesticides are applied  to control pests that are present near water where a portion of the pesticides will unavoidably be deposited to the water to target the pests. EPA's use of the word "adjacent" in identifying these areas is merely used to identify areas near waters of the United States and is not intended to mean "adjacent" as defined in regulation for use when defining the term "waters of the United States."
To avoid duplication of submission, EPA is requiring that the Decision-maker responsible for such applications be the Operator required to submit the NOI. So, where a Decision-maker hires an Applicator to perform the pest control activities, the NOI is to be submitted by the Decision-maker.
EPA's rationale for the annual treatment area threshold and Decision-makers required to submit NOIs for each use pattern is as follows:
Mosquito Control and Other Flying Insect Pest Control
For Mosquitoes and Other Flying Insect Pests, the annual treatment area threshold has been set at 6,400 acres of pesticide application to waters of the United States. Calculation of annual treatment area for mosquito control should only count areas treated with adulticide. Larviciding is not to be used in the calculations. EPA understands that the vast majority of mosquito control and abatement districts in the United States manage areas significantly larger than this threshold and may reasonably expect to exceed it during any given year. For instance, information from the state of Florida on 49 independent mosquito control districts shows that 48 of the 49 districts annually apply to more than 6,400 acres, which indicates that applications exceeding this area are quite typical. Similarly, data provided in EPA's 2011 Economic Achievability Analysis of the Pesticide General Permit (PGP) for Point Source Discharges from the Application of Pesticides and included in the administrative record for this permit, show similar findings as in Florida. Furthermore, the effective control of other aquatic breeding, flying insects, such as the blackfly, necessitates applications that approach or exceed this threshold. Therefore, the threshold appropriately captures most Decision-makers engaging in this use pattern.  The Agency has determined this appropriately captures those two classes of entities that either (1) are established with a specific purpose of pest control or that (2) treat large enough areas to warrant notice to the Agency.
Weed and Algae Control
For Weeds and Algae, the annual treatment area threshold has been set at 80 acres or 20 linear miles of pesticide application to canals and other waters of the United States. This threshold has been set to capture Decision-makers treating relatively large portions of surface waters and watersheds, such as water management districts, wildlife and game departments, and some homeowner and lake associations. For example, Florida's South Florida Water Management District usually applies pesticides to 60 acres at a time hundreds of times per year for various invasive plants on Florida's Lake Okeechobee. After reviewing the operations of major irrigation and flood control systems as part of the initial PGP development, EPA expects that generally, relatively large entities such as South Florida Water Management District, California Department of Water Resources, or organizations with comparable resources are the types of entities that manage 20 or more miles of engineered irrigation systems, and that this is a reasonable limit to trigger the NOI requirement. The same rationale is applied to managers of ditch and canal banks. Therefore, the threshold appropriately captures the relatively large applications but excludes a significant number of small applications. Similar to mosquito control, weed control districts, or similar pest control districts created specifically for the control of pests that treat areas below the threshold, should be required to submit NOIs. As such, the permit requires all weed control districts or similar pest control districts as well as any other Decision-makers treating over the annual treatment area threshold to submit an NOI. The Agency has determined that this appropriately captures those two classes of entities that either (1) are established with a specific purpose of pest control or that (2) treat large enough areas to warrant notice to the Agency.
Animal Pest Control
For Animal Pest Control, the annual treatment area threshold has been set at 80 acres or 20 linear miles of pesticide application to canals and other waters of the United States. Invasive and nuisance aquatic animals are most commonly treated by public agencies such as departments of fish and game, or utilities such as water management districts. The high mobility and prolific breeding abilities that necessitate control of aquatic animals usually mean that pesticide applications most often occur in the entirety or large portions of the water bodies they inhabit. For example, fishery management applications using rotenone often occur in the entire lake, and thus any similar application to a lake of more than 80 acres in area will trigger the annual treatment area threshold. EPA expects that for this reason, only spot applications to eradicate small emergent populations of sessile animals or applications to very small water bodies might be excluded from an NOI requirement. Therefore, the threshold appropriately captures the relatively large Decision-makers engaging in this use pattern.
Forest Canopy Pest Control
For Forest Canopy Pest Control, the annual treatment area threshold has been set at 6,400 acres of pesticide application to waters of the United States. Forest canopy pest suppression programs are designed to blanket large tracts of terrain, throughout which Operators may not be able to see waters of the United States beneath the canopy. EPA has set the annual treatment area threshold for this use pattern with the understanding that this will exclude only the smallest applications from the NOI requirement. These smaller applications generally occur on private lands. Therefore, the threshold appropriately captures most Decision-makers engaging in this use pattern, particularly public agencies managing large tracts of land.
NOIs for Certain Entities Regardless of the Annual Treatment Area Threshold
In addition to NOIs from Decision-makers treating the largest areas, EPA is also requiring NOIs from certain other types of entities with land resource stewardship responsibilities that involve the routine control of pests. For these entities, the draft 2021 PGP requires NOIs regardless of the size of the area treated. In general, EPA expects that in many instances these entities will exceed one or more of the annual treatment area thresholds. Nonetheless, the Agency finds that regardless of the size of the treatment area, any Agency for which pest management for land resource stewardship is an integral part of the organization's operations should also be required to submit NOIs. Such entities may include federal government agencies such as the U.S. Forest Service (U.S. Department of Agriculture) and the Bureau of Land Management (Department of the Interior), state government agencies such as natural resources departments, or pest control districts. EPA's rationale for imposing the NOI requirement is premised on these entities (public, quasi-public, and private) having as an integral responsibility controlling pests. The specific entities required to submit NOIs regardless of whether an annual treatment area threshold is exceeded are as follows:
Any Agency for which pest management for land resource stewardship is an integral part of the organization's operations  -  Any agency that has pest control as an integral part of the organization's operations or responsibilities is required to submit an NOI. Information in the record indicates that many pest control activities performed by these entities will meet or exceed the threshold requirement to submit an NOI. Even when these activities do not exceed the thresholds, however, they are subject to the NOI requirement if the pesticide application is an integral part of their operations and responsibilities. EPA also recognizes, however, that some of these agencies may perform ad-hoc pest control on a small-scale that is not an integral part of the organization's operations but rather incidental, for example, to its occupancy of a building.
Mosquito control districts (or similar pest control districts, such as vector control districts)  -  In many parts of the country, state and territorial governments have established special districts for the purpose of mosquito control. Generally, these districts treat large areas that would exceed EPA's annual treatment area thresholds; however, EPA is requiring any such district, regardless of the area treated, to submit an NOI.
Irrigation control districts (or other similar public or private entities supplying irrigation waters)  -  In many parts of the country, special districts have been established for the purpose of maintaining irrigation canals and ditches. Generally, these districts treat large areas that exceed EPA's annual treatment area thresholds; however, EPA is requiring any such district, regardless of the area treated, to submit an NOI.
Weed control districts (or other similar special purpose districts created with a responsibility of pest control)  -  EPA is aware of some weed control districts created across the country with the specific responsibility to control pests. The Agency has determined that these types of entities, who perform pest management and control, as the primary function of their organization, should provide notice to the Agency of such activities regardless of the size of the area treated.
NOIs for Discharges of Pollutants to Tier 3 Waters
Any Decision-maker requesting to discharge pollutants to Tier 3 waters may seek coverage under the draft 2021 PGP provided that the discharge of pollutants is short-term or temporarily lowers water quality due to pesticide applications that are necessary to protect the water quality, environment, or public health. Any Decision-maker wanting coverage under the draft 2021 PGP for such a discharge will be required to identify the Tier 3 water by name with authorization to discharge pollutants to Tier 3 waters limited to only such named waters.
NOIs for Discharges of Pollutants to Waters of the United States Containing NMFS Listed Resources of Concern, as Defined in Appendix A of the PGP
Any Decision-maker with any discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the  draft 2021 PGP, may seek coverage under the permit by submitting a complete and accurate NOI form that includes certifying eligibility under one of the five criteria (B-F) in Part <IP_ADDRESS> of the draft 2021 PGP.
Contents of the NOI
Pursuant to 40 CFR §122.28(b)(2)(ii), the contents of any NOI must be specified in the general permit and require the submission of information necessary for adequate program implementation, including at a minimum:
the legal name and address of the Owner or Operator,
the facility name and address,
type of facility or discharges of pollutants,
the receiving stream(s), and
signed in accordance with §122.22.
The specific requirements of the draft 2021 PGP NOI are identified in the NOI form provided in Appendix D of the draft 2021 PGP but include those elements identified in the regulations described above with three additional data elements that are important to fully characterize the activities for which permit coverage is being provided, namely identification of:
pesticide use activities that trigger the PGP requirements to develop a pesticide discharge management plan and submit an annual report;
impaired water(s) and/or Tier 3 water(s) for which permit coverage is being requested for discharges of pollutants to these waters and demonstration of eligibility for such discharges; and
whether pollutant discharges will be to waters of the United States containing NMFS Listed Resources of Concern, and, if so, what pest(s) are to be controlled; the pesticide product(s) to be discharged; the planned quantity and rate of discharge(s) of pollutants; the number of planned discharges of pollutants; and signed certification by the Decision-maker that one of the six criteria in Part <IP_ADDRESS> of the draft 2021 PGP have been met. EPA recognizes the implementation of pest management measures as specified in the permit may involve a degree of "adaptive management" such that exact timing and quantities of applications cannot be determined in advance for the duration of the permit. EPA expects the Decision-maker to provide the required information to the extent feasible and consistent with the implementation of the selected pest management measures.
Also, the draft 2021 PGP requires Decision-makers to submit changes to previous NOI forms where, for example, coverage for an additional discharge of pollutants not included in the original NOI is being requested. EPA expects these NOI change requests to be submitted primarily in four instances: (1) coverage for a new or expanded pest management area or a new pesticide use pattern is being requested, (2) discharge to a not-previously identified Tier 3 water is identified for permit coverage, or (3) discharge to any not-previously identified waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP, is being requested or (4) changes in the treatment area, pesticide product, method or rate of application, or approximate dates of applications for discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern. In cases where this information was previously provided to the extent feasible and consistent with the implementation of selected pest management practices, a revised NOI is not required as long as the discharge continues to be consistent with the information provided in the original NOI submission. In these four instances, Decision-makers are required to submit revised NOIs that reflect changes in the areas and types of activities for which coverage is being requested.
1.2.3	Discharge Authorization Date
The 2016 PGP expires at midnight on October 31, 2021. EPA plans to issue this permit which will become effective on October 31, 2021. For any discharges of pollutants occurring after the effective date of the final permit and for which Operators are not required to submit an NOI, Operators will receive permit coverage for those discharges of pollutants under the 2021 PGP. Dischargers who obtained automatic coverage under the 2016 PGP (i.e., Operators who are not required to submit an NOI) and continue to discharge pollutants after the effective date of the final permit will receive uninterrupted permit coverage. Decision-makers required to submit NOIs, as detailed in Part 1.2.2 of the draft 2021 PGP, are authorized consistent with the timeframes and provisions detailed in Part 1.2.3 of the draft 2021 PGP. Decision-makers who are required to submit an NOI must begin complying with requirements in Part 2.2 of the draft 2021 PGP as of the effective date of the final permit.
EPA proposes to retain the procedures for NMFS Listed of Resources of Concern that were included in EPA's 2016 PGP. EPA is currently conducting consultation with the Services for the reissuance of the permit. Based on the results of consultation with the Services, it may be necessary to add additional conditions. NOIs are required from Decision-makers according to the schedule detailed in Table 1-2 in the draft 2021 PGP and as described below:
Other than for discharges of pollutants in response to a Declared Pest Emergency Situation or that are to NMFS Listed Resources of Concern, both of which are described below, Decision-makers who discharge after the effective date of the final permit will be authorized 10 days after EPA posts on its public Internet website, at https://www.epa.gov/npdes/pesticide-permitting, receipt of a complete and accurate NOI unless EPA places a hold on the authorization (i.e., delay authorization). NOIs submitted electronically will be posted on the NPDES website instantaneously with the Operator authorized to discharge 10 days after the posting, providing EPA does not place a hold on the authorization for that NOI. EPA will send automatic confirmation of receipt of NOIs and of discharge authorization. The Agency may place an authorization on hold if the Agency determines, including based on information provided by other interested parties (e.g., US FWS, NMFS), that the Operator may not be eligible for PGP coverage. See Part 1.1 of the draft 2021 PGP for the eligibility criteria. Thus, an NOI must be submitted no later than 10 days before the first discharge for any discharges of pollutants occuring after the effective date of the final permit.
Any Decision-maker who discharges pollutants in response to a Declared Pest Emergency Situation, as defined in Appendix A of the draft 2021 PGP, that is not to waters of the United States containing NMFS Listed Resources of Concern, for which that activity triggers the requirement to submit an NOI, is authorized to discharge pollutants immediately; however, a complete and accurate NOI is required to be submitted no later than 30 days after beginning to discharge. This delay in NOI submission and immediate authorization is to allow pest managers the opportunity to respond to pest emergencies without delay.
In any Declared Pest Emergency Situation for discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern, the discharges of pollutants are authorized for at least 60 days or until EPA determines that the discharges of pollutants may not continue (or places additional conditions on the discharge) due to concerns related to compliance with the ESA-related conditions of the draft 2021 PGP. These Decision-makers must file an NOI no later than 15 days after beginning to discharge pollutants. The NOI must identify:
            The location of the pest management area in detail or include a map of the location;
            Pest(s) to be controlled;
            Pesticide product(s) to be discharged and method of application;
            Planned quantity and rate of discharge(s) for each method of application;
            Number of planned discharges of pollutants;
            Approximate date(s) of planned discharge(s) of pollutants; and
            Whether the discharge of pollutants is likely to adversely affect a NMFS Listed Resource of Concern, including the description of appropriate measures to be undertaken to avoid or eliminate the likelihood of adverse effects on that identified NMFS Listed Resource of Concern.
        For discharges of pollutants that have already occurred prior to NOI submission, items 1 through 6 above must also be identified in that NOI.
        In any Declared Pest Emergency Situation in areas with waters of the United States containing NMFS Listed Resources of Concern, NMFS will have 30 days after submission of an NOI (e.g., when EPA posts on the Internet receipt of a complete and accurate NOI) to provide EPA with a determination as to whether NMFS believes the eligibility criteria of "not likely to adversely affect listed species or designated critical habitat" has been met, per Part <IP_ADDRESS> of the draft 2021 PGP (see also 50 CFR 402.14), could be met with conditions that NMFS identifies, or has not been met. EPA expects to rely on NMFS' determination in deciding whether to disallow continued permit coverage or if additional conditions are necessary to meet the eligibility criteria of "not likely to adversely affect listed species or designated critical habitat." See Part <IP_ADDRESS> of the draft 2021 PGP. See also 50 CFR 402.14. If NMFS does not provide EPA with a recommendation within 30 days of EPA posting on the Internet receipt of a complete and accurate NOI, authorization for these discharges of pollutants will continue. If EPA identifies additional permit conditions, or includes additional permit conditions recommended by NMFS, as necessary to qualify discharges of pollutants as eligible for coverage beyond 60 days under the draft 2021 PGP, those conditions remain in effect for the life of the permit. EPA will advise the Decision-maker within 15 days of receiving a determination from NMFS whether the discharge of pollutants or discharges of pollutants qualify for coverage beyond the 60-day authorization provided under the draft 2021 PGP. If the decision maker does not hear from EPA, the decision maker may assume that permit authorization continues unless notified otherwise. This approach provides a reasonable amount of time for Operators to quickly respond to any Declared Pest Emergency Situation (i.e., 60 days after beginning to discharge pollutants), yet provides the Agency with an opportunity to ensure that subsequent discharges of pollutants are controlled as necessary to protect water quality and any NMFS Listed Resources of Concern.
For any discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern and beginning on or after the effective date of the final permit an NOI will need to be submitted no later than 30 days before the first discharge occurs. NOIs submitted electronically will be posted on the NPDES website instantaneously with the Operator authorized to discharge 30 days after the posting, providing EPA does not place a hold on the authorization for that NOI. EPA will send automatic confirmation of receipt of NOIs and of discharge authorization. The additional timeframe allows NMFS to have sufficient time to review NOI submissions as a result of discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP. EPA may authorize certain discharges of pollutants in less than 30 days, but no fewer than 10 days, after submission of an NOI for any discharges of pollutants under Criterion B, C, or E, of Part <IP_ADDRESS> of the draft 2021 PGP. This is because under criteria B and C, Operators would have already consulted with NMFS and under criterion E, the Operator would have received a written letter from NMFS that the discharge of pollutants will not adversely affect NMFS Listed Resources of Concern. Early submittal and review of NOIs will help ensure that any issues are addressed and resolved in a timely manner so that appropriate pesticide applications can proceed as planned. The Agency may place an authorization on hold if the Agency determines, including based on information provided by other interested parties and from the Services' review, that the Operator may not be eligible for PGP coverage. In determining whether to withhold permit authorization under this permit, EPA expects to rely on NMFS expertise in making a determination as to whether there is likely to be adverse effect. Within 30 days after EPA posts on the Internet receipt of a complete and accurate NOI, for those discharges of pollutants to waters of the United States containing NMFS Listed Resources of Concern, as defined in Appendix A of the draft 2021 PGP, NMFS will provide EPA with a determination as to whether NMFS has determined the eligibility criteria of "not likely to adversely affect listed species or designated critical habitat" has been met, could be met with conditions the NMFS identifies, or has not been met. EPA expects to rely on NMFS' determination in deciding whether to disallow continued permit coverage or if additional conditions are necessary. EPA notes that it may be advantageous to the Decision-maker to work with NMFS prior to submitting the NOI, and to obtain written correspondence from NMFS, if possible, that pesticide application activities performed consistent with appropriate measures will avoid or eliminate the likelihood of adverse effects. In this case, as noted above, EPA may authorize discharges of pollutants in as few as 10 days after the NOI is submitted, although the operator may not assume authorization before 30 days unless specifically so notified by EPA.
NOIs submitted electronically will be posted on the NPDES website instantaneously with the Operator authorized to discharge pollutants 10 or 30 days after the posting, providing EPA does not place a hold on the authorization for that NOI. EPA will send automatic confirmation of receipt of NOIs and of discharge authorization.
The draft 2021 PGP contains standard language that provides EPA with the authority to modify permit terms or terminate permit coverage as appropriate. NMFS and any other interested persons may provide information to EPA noting any concerns with authorized discharges of pollutants, including those resulting from Declared Pest Emergency Situations. EPA will consider that information and take future action as appropriate. As provided in the draft 2021 PGP, in general, EPA may take the following actions:
Part 1.3 - Require Operators to apply for and/or obtain authorization to discharge under either an NPDES individual permit or an alternative NPDES general permit.
Appendix B, Standard Permit Conditions, 40 CFR 122.41(a) Duty to comply - Terminate, revoke and reissue, or modify a permit for any permit noncompliance, that is also grounds for enforcement action.
Part 1.2.3; Part 6.3; Appendix B, Standard Permit Conditions, 40 CFR 122.41(f) Permit actions - Modify, revoke and reissue, or terminate a permit for cause.
1.2.4	Continuation of this Permit
The draft 2021 PGP specifies procedures for continued coverage under a general permit if the permit expires prior to a replacement permit being issued. The procedures remain unchanged from EPA's 2016 PGP. In short, the expired permit would remain in full force and effect in accordance with the Administrative Procedure Act (5 U.S.C. 558(c)) and EPA's implementing regulations at 40 CFR 122.6. Any permittee granted coverage prior to the permit's expiration date will automatically remain covered by the continued permit until the earliest of:
     (a)	Authorization under a new version of the PGP following timely and accurate submittal of a complete NOI (if required);
     (b)	The processing and posting of a Notice of Termination (NOT) consistent with Part <IP_ADDRESS> of the draft 2021 PGP;
     (c)	The issuance of an individual permit;
     (d)	A formal permit decision by EPA not to reissue the general permit, at which time EPA will identify a reasonable time period for covered dischargers to seek coverage under an alternative general permit or an individual permit. Coverage under this permit will cease when coverage under another permit is granted/authorized; or
     (e)	EPA has informed the permittee that the permittee's discharges of pollutants are no longer covered under the permit.
If EPA fails to issue a final general permit prior to the expiration of a previous general permit the permit will be administratively continued in accordance with section 558(c) of the Administrative Procedure Act (5 U.S.C. 558(c)) and EPA's implementing regulations at 40 CFR 122.6 and will remain in force and effect for discharges of pollutants that were covered prior to expiration. However, EPA does not have the authority to provide coverage under an administratively extended permit to entities not authorized prior to the expiration date of the permit.
1.2.5	Terminating Coverage
The draft 2021 PGP specifies procedures for terminating coverage under this general permit. The procedures remain unchanged from EPA's 2016 PGP.
<IP_ADDRESS>	Submitting a Notice of Termination
To terminate coverage under the permit, any Decision-maker who submitted a Notice of Intent to obtain permit coverage is required to submit a Notice of Termination (NOT) in accordance with information identified in Appendix E of the draft 2021 PGP. The Decision-maker's authorization to discharge pollutants under the permit terminates at midnight of the day that a complete NOT is processed and posted on EPA's website (https://www.epa.gov/npdes/pesticide-permitting). Dischargers automatically covered (as identified in Part 1.2.3 of the draft 2021 PGP) are automatically terminated upon permanent cessation of discharge consistent with any of the criteria identified in Part <IP_ADDRESS> of the draft 2021 PGP.
EPA requires Decision-makers who file a NOT to notify EPA that its obligation to manage pollutant discharges is no longer necessary for one of the EPA-approved reasons (as described in Part III.<IP_ADDRESS> of the fact sheet). If EPA determines that the Decision-maker has not satisfied one of the conditions in Part <IP_ADDRESS> of the draft 2021 PGP for being able to submit an NOT (e.g., the Decision-maker continues to have a discharge of pollutants) then the notice is not valid and the Decision-maker must continue to comply with the conditions of the draft 2021 PGP. Likewise, if EPA determines that the NOT is incomplete, the Decision-maker may be found to be in violation of reporting requirements.
<IP_ADDRESS>	When to Submit a Notice of Termination
Once all point source discharges associated with pesticide application have ceased, the Decision-maker must submit an NOT, as described in Part <IP_ADDRESS> of the draft 2021 PGP, within 30 days after one or more of the following conditions have been met: (1) a new Decision-maker has taken over responsibility for the pest control activities; (2) all discharges have ceased from the application of pesticides for which permit coverage was obtained and discharges of pollutants are not expected during the remainder of the permit term for any of the use patterns as identified in Part 1.1.1 of the draft 2021 PGP, or (3) coverage under an individual permit or alternative general permit has been obtained for all discharges of pollutants required to be covered by an NPDES permit, unless coverage was obtained consistent with Part 1.3 of the draft 2021 PGP, in which case, coverage under this permit will terminate automatically.
In the draft 2021 PGP, EPA is requiring an NOT from Operators who on their own switch to a different permit to provide the Agency with clear notice that the Operator's discharge of pollutants is not covered under two NPDES permits. Operators who terminate coverage based on an EPA request consistent with Part 1.3 of the draft 2021 PGP are not required to submit an NOT.
<IP_ADDRESS>	Termination for Operators not Required to Submit an NOI
Operators covered under the draft 2021 PGP who are not required to submit an NOI are terminated from permit coverage when there is no longer a discharge from the application of pesticides, or the discharges of pollutants are covered under an NPDES individual permit or alternative NPDES general permit. Operators not required to submit an NOI are also not required to submit an NOT.
1.3	Alternative Permits
The draft 2021 PGP specifies requirements and procedures for coverage under an alternative permit. The requirements and procedures remain unchanged from EPA's 2016 PGP.
1.3.1	Requirements for Coverage Under an Alternative Permit
EPA may require an individual permit (in accordance with 40 CFR 122.28(b)(3)(ii)) or coverage under an alternative NPDES general permit instead of the draft 2021 PGP (when finalized). The regulations also provide that any interested party may petition EPA to take such an action. The issuance of the individual permit or alternative NPDES general permit is in accordance with 40 CFR part 124 and provides for public comment and appeal of any final permit decision. The circumstances in which such an action would be taken are set forth at 40 CFR 122.28(b)(3). EPA notes that discharges of pollutants from anti-foulant hull coatings, biofouling prevention, and residuals from ballast water treatment technologies are already covered under the NPDES Vessels General Permit requirements and do not require coverage under this general permit (see EPA NPDES Vessels General Permit at https://www.epa.gov/npdes/vessels).
1.3.2	Operator Requesting Coverage under an Alternative Permit
After receiving permit coverage under the draft 2021 PGP (when issued), the Operator may request to be excluded from such coverage by applying for an individual permit or alternative NPDES general permit. In this case, the Operator must submit an individual permit application in accordance with 40 CFR 122.28(b)(3)(iii), along with a statement of reasons supporting the request, to EPA at the applicable EPA Regional Office listed in Part 8.2 of the draft 2021 PGP. The request may be granted by issuance of an individual permit or authorization of coverage under an alternative general permit if the reasons are adequate to support the request. Under this scenario, if an individual permit is issued, or authorization to discharge pollutants under an alternative general permit is granted, coverage under this permit is automatically terminated under 40 CFR 122.28(b)(3)(iv) on the effective date of the individual permit or the date of authorization of coverage under the alternative general permit.
Part 1.3.2 of the draft 2021 PGP explains an Operators ability to apply for coverage under an individual permit in lieu of coverage under this general permit and describes the steps to take to be excluded from this permit after being authorized under this permit. Cases where an individual NPDES permit may be required are described fully in 40 CFR 122.28(b)(3)(iii). The following are the pertinent situations for this permit where an individual permit may be necessary:
         A Water Quality Management plan containing requirements applicable to such point sources is approved;
         Circumstances have changed since the time of the request to be covered so that the discharger is no longer appropriately controlled under the general permit, or either a temporary or permanent reduction or elimination of the authorized discharge is necessary; or
         The discharge(s) is a significant contributor of pollutants. In making this determination, EPA may consider the following factors:
            The location of the discharge of pollutants with respect to waters of the United States;
            The size of the discharge of pollutants;
            The quantity and nature of the pollutants discharged to waters of the United States; and
            Other relevant factors.
EPA may require an Operator to apply for an individual permit only if EPA notifies the Operator in writing that a permit application for an individual permit is required. See 40 CFR 124.52. This notice must include a brief statement of the reasons for this decision, an application form, a statement setting a time for the Operator to file the application, information on appeals rights, and a statement that on the effective date of the individual NPDES permit the general permit as it applies to the individual Operator shall automatically terminate. EPA may grant additional time upon request of the applicant.
When an individual NPDES permit is issued to an Operator otherwise subject to a general NPDES permit, the applicability of the general permit to the individual NPDES Operator is automatically terminated on the effective date of the individual permit.
Note that an individual permit is required for discharges from the application of pesticides to waters where such waters are impaired by a substance which either is an active ingredient in that pesticide or is a degradate of such an active ingredient, and for certain applications of pesticides to Tier 3 waters where such applications are not made to restore or maintain water quality or to protect public health or the environment in such a way that they either do not degrade water quality or only degrade water quality on a short-term or temporary basis. In these cases, authorization under this general permit would not have been available in the first place.
1.4	Severability
Invalidation of a portion of this permit (when issued) does not necessarily render the whole permit invalid. If any provisions of this permit are reviewed and vacated by a court, only those provisions vacated will be deemed invalidated by EPA. The remainder of the permit conditions will remain in effect. EPA will evaluate the effect of such invalidation on a case-by-case basis.
1.5	Other Federal and State Laws
Part 1.5 of the draft 2021 PGP includes the following language: "Operators must comply with all other applicable federal and state laws and regulations that pertain to the application of pesticides. For example, this permit does not negate the requirements under the FIFRA and its implementing regulations to use registered pesticides consistent with the product's labeling. In fact, applications in violation of certain FIFRA requirements could also be a violation of the permit and therefore a violation of the CWA (e.g. exceeding label application rates). Additionally, other laws and regulations might apply to certain activities that are also covered under this permit (e.g., United States Coast Guard regulations)."
This part of the draft 2021 PGP is intended to clarify that Operators are still required to comply with other applicable laws, and that merely complying with the conditions of this permit may not result in compliance with all other applicable regulations. In fact, compliance with certain permit terms expressly requires Operators to comply with other laws to demonstrate compliance with this permit. For example, the draft 2021 PGP requires Operators to use "Pest Management Measures" to "minimize" discharges of pollutants. As these terms are defined in Appendix A of the draft 2021 PGP, Operators must use practices that comply with, among other things, "relevant legal requirements" to reduce and/or eliminate pollutant discharges to waters of the United States.
1.6	Federally Listed Endangered and Threatened Species and Designated Critical Habitat.
Part 1.6 of the draft 2021 PGP clarifies that Operators are required to comply with conditions and/or requirements for discharges of pollutants to waters of the United States from any ESA Section 7 consultation or ESA Section 10 permit for pesticides application activities covered under this permit.
Effluent Limitations
Background
The CWA requires that all point source discharges of pollutants from existing facilities, or in this case, pesticide applications, meet technology-based effluent limitations (TBELs) representing the applicable levels of control. 33 U.S.C. 1311(b)(1)(A)(BPT), (b)(2)(A)(BAT), (b)(2)(E)(BCT).  Additionally, water quality-based effluent limitations (WQBELs) are required where the technology-based effluent limitations are not sufficient to protect applicable water quality standards. 33 U.S.C. 1311(b)(1)(C). Water quality-based requirements will be discussed in greater depth in Part III.3 of the fact sheet. The technology-based effluent limitations contained in the draft 2021 PGP are non-numeric and constitute the levels of control that reduce the area and duration of  the discharge of pollutants to waters of the United States.
The Clean Water Act Requires EPA to Develop Effluent Limitations that Represent the Following:
Best Practicable Control Technology Currently Available (BPT)
The CWA requires BPT effluent limitations for conventional, toxic, and non-conventional pollutants. Section 304(a)(4) designates the following as conventional pollutants: biochemical oxygen demand (BOD), total suspended solids, fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional. The Administrator designated oil and grease as an additional conventional pollutant on July 30, 1979. 40 CFR 401.16. EPA has identified 65 pollutants and classes of pollutants as toxic pollutants, of which 126 specific substances have been designated priority toxic pollutants. 40 CFR 401.15 and 40 CFR Part 423 Appendix A. All other pollutants are considered to be non-conventional.
In specifying BPT, under CWA section 301(b)(1)(A); 304(b)(1)(B); 40 CFR 125.3(d)(1), EPA evaluates a number of factors. EPA first considers the total cost of applying the control technology in relation to the effluent reduction benefits. The Agency also considers the age of the equipment and facilities, the processes employed, and any required process changes, engineering aspects of the control technologies, non-water quality environmental impacts (including energy requirements), and such other factors as the EPA Administrator deems appropriate. Traditionally, EPA establishes BPT effluent limitations based on the average of the best performance of facilities within the industry of various ages, sizes, processes, or other common characteristics. Where existing performance is uniformly inadequate, BPT may reflect higher levels of control than currently in place in an industrial category if the Agency determines that the technology can be practically applied.
Best Conventional Pollutant Control Technology (BCT)
The 1977 amendments to the CWA required EPA to identify effluent reduction levels for conventional pollutants associated with BCT for discharges from existing industrial point sources. CWA section 301(b)(2)(E); 304(b)(4)(B); 40 CFR 125.3(d)(2). In addition to considering the other factors specified in section 304(b)(4)(B) to establish BCT limitations, EPA also considers a two part "cost-reasonableness'' test. EPA explained its methodology for the development of BCT limitations in 1986. 51 FR 24974 (July 9, 1986).
Best Available Technology Economically Achievable (BAT)
For toxic pollutants and non-conventional pollutants, EPA includes technology-based effluent limitations based on BAT in NPDES permits. CWA section 301(b)(2)(A); 304(b)(2)(B); 40 CFR 125.3(d)(3). In establishing BAT, the technology must be technologically "available" and "economically achievable." The factors considered in assessing BAT include the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts, including energy requirements and other such factors as the EPA Administrator deems appropriate. The Agency retains considerable discretion in assigning the weight accorded to these factors. BAT limitations may be based on effluent reductions attainable through changes in an Operator's processes and operations. Where existing performance is uniformly inadequate, BAT may reflect a higher level of performance than is currently being achieved within a particular subcategory based on technology transferred from a different subcategory or category. BAT may be based upon process changes or internal controls, even when these technologies are not common industry practice.
The draft 2021 PGP contains effluent limitations that correspond to required levels of technology-based control (BPT, BCT, BAT) for discharges of pollutants under the CWA. Some effluent limitations have been established by examining other existing laws, requirements and practices. Because these are demonstrated practices, EPA has found that they are technologically available and economically practicable (BPT) or achievable (BAT).
Technology-Based Effluent Limitations
Technology-based effluent limitations are in many cases established by EPA in regulations known as effluent limitations guidelines, or "ELGs." EPA establishes these regulations for specific industry categories or subcategories after conducting an in-depth analysis of that industry. The CWA sets forth different standards for the ELGs based upon the type of pollutant or the type of permittee involved. Where EPA has not issued effluent guidelines for an industry, EPA and State permitting authorities establish effluent limitations for NPDES permits on a case-by-case basis based on their best professional judgment. See 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 125.3(c)(2).
As stated above, the CWA establishes two levels of technology-based controls. The first level of control, "best practicable control technology currently available," or "BPT" applies to all pollutants. CWA section 304(b)(1)(B); 33 U.S.C. 1314(b)(1)(B). BPT represents the initial stage of pollutant discharge reduction, designed to bring all sources in an industrial category up to the level of the average of the best source in that category. See EPA v. National Crushed Stone Association, 449 U.S. 64, 75-76 (1980). In the second level of control, all point sources are required to meet effluent limitations based on "best conventional pollutant control technology," or "BCT" CWA section 304(b)(4)(B); 33 U.S.C. 1314(b)(4)(B) or "best available technology economically achievable," or "BAT" CWA section 301(b)(2)(A); 33 U.S.C. 1311(b)(2)(A), depending on the types of pollutants discharged. BCT applies to conventional pollutants, listed at 40 CFR 401.16 (biological oxygen demand (BOD), pH, fecal coliform, TSS, and oil and grease). BAT applies to toxic and non-conventional pollutants. Technology-based limitations are to be applied throughout industry without regard to receiving water quality. Appalachian Power Co. v. EPA, 671 F.2d 801 (4th Cir. 1982).
EPA's Authority to Include Non-Numeric Technology-Based Limitations in this Permit
All NPDES permits are required to contain technology-based effluent limitations. 40 CFR §§ 122.44(a)(1) and 125.3. CWA sections 301(b)(1)(A) for (BPT); 301(b)(2)(A) for (BAT); and 301(b)(2)(E) for (BCT). Technology-based effluent limitations in the draft 2021 PGP represent the BPT (for conventional, toxic, and non-conventional pollutants), BCT (for conventional pollutants), and BAT (for toxic pollutants and non-conventional) levels of control for the applicable pollutants. When EPA has not promulgated effluent limitation guidelines for an industry, or if an Operator is discharging a pollutant not considered in the development of the effluent guideline, permit limitations are based on the best professional judgment (BPJ, sometimes also referred to as "best engineering judgment") of the permit writer. 33 U.S.C. § 1342(a)(1); 40 CFR 125.3(c). See Student Public Interest Group v. Fritzsche, Dodge & Olcott, 759 F.2d 1131, 1134 (3[rd] Cir. 1985); American Petroleum Inst. v. EPA, 787 F.2d 965, 971 (5[th] Cir. 1986). For the draft 2021 PGP, the technology-based effluent limitations are based on BPJ decision-making because no ELG applies.
Under EPA's regulations, non-numeric effluent limitations are authorized in lieu of numeric limitations, where "[n]umeric effluent limitations are infeasible." 40 CFR 122.44(k)(3). As far back as 1977, courts have recognized that there are circumstances when numeric effluent limitations are infeasible and have held that EPA may issue permits with conditions (e.g., narrative effluent limitations or best management practices) designed to reduce the level of effluent discharges to acceptable levels. Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1380 (D.C.Cir.1977).