The Nebraska Department of Environmental Quality is proposing a Permit-by-Rule provision for pesticides as a new chapter in Title 119 -- Rules And Regulations Pertaining To The Issuance Of Permits Under The National Pollutant Discharge Elimination System. The proposed changes to Title 119 are currently in draft form and will be presented to the Environmental Quality Council at their quarterly meeting scheduled December 1 and 2, 2010.

The draft version is attached below:
(See attached file: draft T119 revisions.pdf)
 

Purpose of the Permit-by-Rule
The proposed Permit-by-Rule is being developed to meet the United States Court of Appeals for the Sixth Circuit decision that discharges of pesticides and their residuals to, over, or near water need a National Pollutant Discharge Elimination Permit. The Department expects most of the applications to be covered by this Permit-by Rule for Pesticides. Those applications of pesticides not covered in the Permit-by-Rule for Pesticides may be eligible for a general permit or site-specific permit.

What would be covered in the proposed Permit-by-Rule:

• Most lakes, impoundments, marshes, swales, road ditches and other water bodies that do not have water present during the application, or can be controlled so they do not discharge. Also, applications of pesticides to control mosquitoes and other flying pests.

What would not be covered in the proposed Permit-by-Rule:

• Applications to flowing waters.
• Applications where threatened or endanger species or their habitat are found.
• Applications to impaired waters on the current Clean Water Act 303(d) lists for the active ingredients causing the impairment.
• Applications to state resource waters as listed in Title 117.
• Applications when the weather forecasts a precipitation event that is likely to cause the application of pesticides to leave the target area in less than 24 hours.
• Applications within 10 miles of a public drinking surface water intake unless the public drinking water entity allows.

Compliance with the Permit-by-Rule requires:

• Being able to identify target species, non- target species, endangered species, water body uses, proper timing for application, physical and chemical characteristics of the water, weather conditions, and be able to properly evaluate the treatment options that optimize treatment of the pest and minimize impacts to the environment.
• Being in compliance with label instructions.
• Maintaining and calibrating application equipment.
• Maintaining records.
• Visually monitoring for adverse impacts and reporting any adverse impacts in 24 hours.

Authorization:

• There is no Notice of Intent (NOI) or application form that needs to be submitted for this permit-by-rule. To qualify the requirements must be achieved.
• Applications of pesticides to waters of the state without meeting these requirements or meeting the requirements of a general permit or site-specific permit is a violation of the Nebraska Environmental Protection Act and these regulations.

The Clean Water Act exempts the following from permit requirements:

• Irrigation return flow
• Discharge associated with agriculture runoff.

Additional Information
If approved by the EQC, the amendments would proceed to the Attorney General’s Office for review, and would then be sent to the Governor for approval. The proposed rules would become final after they are filed with the Secretary of State.