Federal Consistency Determination - Oregon.gov
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Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
Federal Consistency Determination
Introduction
The U.S. Environmental Protection Agency (EPA) is providing this consistency determination to
Oregon pursuant to section 307(c)(1) of the Coastal Zone Management Act (CZMA), including
implementing regulations at 15 C.F.R. 930.31(d) and 930.36(e). The activity for which EPA has
prepared the consistency determination is the proposal of a general National Pollutant Discharge
Elimination System (NPDES) permit for discharges of pesticides to waters of the U.S (draft 2021
PGP or draft general permit). EPA proposed this general permit pursuant to section 402 of the
Clean Water Act (CWA), 33 U.S.C. § 1342. EPA issued for public notice and comment the
permit and accompanying fact sheet on January 15, 2021.
The CZMA as amended, 16 U.S.C. § 1451 et seq., requires each federal agency activity, within
or outside the coastal zone that affects any land or water use or natural resource of the coastal
state, to be carried out in a manner which is consistent to the maximum extent practicable with
the enforceable policies of an approved State management program. Each federal agency
carrying out such an activity must provide a consistency determination to the relevant State
agency at the earliest practicable time, but no later than 90 days before final approval of the
action.
EPA has determined that issuance of this permit is consistent to the maximum extent practicable
with the enforceable policies of the approved State’s management program for a number of
reasons. The permit provides protection to coastal waters by imposing enforceable NPDES
permit limits on those discharges. The permit establishes technology-based effluent limitations
based upon CWA sections 301(b)(2)(A) and 301(b)(2)(E), ensuring that pesticide discharges will
comply with applicable State water quality standards under CWA section 303, 33 U.S.C. § 1313.
In addition, because this general NPDES permit is issued by the federal government, it is subject
to Tribal water quality certification requirements under CWA section 401.
The draft permit, fact sheet, and all supporting documents are also available on the public docket
on regulations.gov (ID# EPA-HQ-OW-2020-0005). Copies of the draft permit and fact sheet are
also available on EPA’s pesticide permitting website: https://www.epa.gov/npdes/pesticide-
permitting-draft-2021-pgp. EPA requires your review, and if necessary, conditions, based on
specific enforceable policies, that would permit Oregon to concur with EPA’s consistency
determination within 60 days of the receipt of this analysis. If Oregon fails to furnish a reply
within this time period EPA will presume your concurrence.
The Proposed Action
EPA is proposing to reissue the 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.
The draft general permit will provide pesticide applicators coverage to discharge within tribal
trust lands in Oregon. There are five tribes within the Oregon coastal zone: Confederated Tribes
of the Coos, Confederated Tribes of Grand Ronde, Confederated Tribes of Siletz Indians,
1Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
Confederated Tribes of the Umatilla Indian Reservation, and Cosquille Indian Tribe.1 See
Appendix A, Figure 1 for a map of the Oregon tribal lands within the coastal zone.
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.
1
Coastal Tribal Relations. https://www.oregon.gov/lcd/OCMP/Pages/Tribal.aspx
2Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
Protection of Coastal Zone
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, it 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).
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) of the CWA, 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.
An NPDES permit authorizes the discharge of a pollutant or pollutants into a receiving water
under certain conditions. Under the NPDES program a general permit, such as the draft 2021
3Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
PGP, 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).
An NPDES permit must contain technology-based effluent limitations2 (TBELs) representing the
applicable levels of control. 33 U.S.C. § 1311(b)(1)(A), (b)(2)(A), (b)(2)(E). 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).
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 technology-based effluent limitations in the draft 2021 PGP
require the pesticide operators 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. In the draft 2021 PGP, discussion of technology-based effluent
limitations 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.
In addition to the technology-based effluent limitations, the draft 2021 PGP contains 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
2
Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C. Cir. 1982) (noting that "section 502(11) defines
'effluent limitation' as 'any restriction' on the amounts of pollutants discharged, not just a numerical restriction";
holding that section of CWA authorizing courts of appeals to review promulgation of "any effluent limitation or
other limitation" did not confine the court's review to the EPA's establishment of numerical limitations on pollutant
discharges, but instead authorized review of other limitations under the definition) (emphasis added). In Natural
Res. Def. Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977), the D.C. Circuit stressed that when numerical
effluent limitations are infeasible, EPA may issue permits with conditions designed to reduce the level of effluent
discharges of pollutants to acceptable levels.
4Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
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 the
draft 2021 PGP, and document and report the excursion(s) to EPA as required in the draft 2021
PGP. Furthermore, 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.
Consistency Determination
As explained above, this general permit only applies to tribal trust lands in Oregon, and in certain
other areas (tribal trusty territory, throughout the country and federal land in some states). Due to
the nature of pesticide application and the impacts they have on other lands and waters in the
coastal zone, EPA has reviewed its draft 2021 PGP against the Oregon Coastal Management
Program (OCMP) enforceable policies to determine consistency with the OCMP.
EPA reviewed its proposed action to ensure that this action would be consistent to the maximum
extent practicable with the enforceable policies of the OCMP. This program and its amendments
are approved by the Office of Ocean and Coastal Resource Management of the National Oceanic
and Atmospheric Administration (NOAA). The Department of Land Conservation and
Development (DLCD) is Oregon’s designated coastal zone management agency pursuant to
Section 306(c)(5) of the CZMA and Oregon’s statutes at ORS Section 196.435.
The enforceable policies of the OCMP that EPA identified as relevant to the general permit
include: (1) statewide statute and administrative rule enforceable policies; (2) the statewide
planning goals; (3) the north coast applicable acknowledged city or county comprehensive plan
and land use regulations; and (4) the south coast applicable acknowledged city or county
comprehensive plan and land use regulations.3
The EPA has determined that its action is consistent to the maximum extent practicable with
the enforceable policies of the OCMP.
3
https://www.oregon.gov/lcd/OCMP/Pages/Enforceable-Policies.aspx
5Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
Methodology for Determining Consistency with OCMP
In addition to this consistency determination, the record/basis for the draft 2021 PGP also
includes:
1. The Draft 2021 Pesticide General Permit
2. The Draft 2021 PGP Fact Sheet
3. Supporting documents available on the public docket on regulations.gov (EPA-HQ-OW-
2020-0005)
For a detailed discussion of EPA’s federal statutory and regulatory requirements for issuing this
general permit, please see the Fact Sheet. The draft 2021 PGP specifies procedures to protect
federally listed endangered and threatened species and its designated critical habitat. EPA is
currently conducting consultation with the Services (National Marine Fisheries Service (NMFS)
and U.S. Fish and Wildlife Service) for the reissuance of the draft 2021 PGP.
Pursuant to the CZMA, as amended, 16 U.S.C. Sections 1451 to 1465, federal activities which
affect (directly or are reasonably foreseeable to affect) the coastal zone are to be carried out in a
manner that is “consistent to the maximum extent practicable with the enforceable policies of
approved State management programs.”
6Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
State Statute & Administrative Rule Enforceable Policies
Statute Name & Statute Title Statute Section Title Consistency Determination
Number
ORS Chapter Columbia River .682 Permits required for removal or fill; conditions Not relevant, as the draft 2021
196 Gorge; Ocean on issuance of permit PGP applies coverages to
Resource .687 Regulation of alteration or fill of artificially pesticide applicators to waters
Planning; created wetlands of the US.
Wetlands; .800 Definitions for ORS 196.600 to 196.905
Removal and Fill .805 Policy
.810 Permit required to remove material from bed or
banks of waters; status of permit; exceptions; rules
.815 Application for permit; rules; fees; disposition of
fees
.816 General permits allowing removal of certain
amount of material for maintaining drainage; rules;
waiver of fees
.817 General permits; rules
.818 Wetland delineation reports; review by
Department of State Lands; fees; rules
.825 Criteria for issuance of permit; conditions;
consultation with public bodies; hearing; appeal
.830 Estuarine resource replacement as condition for
fill or removal from estuary; considerations; other
permit conditions
.845 Investigations and surveys
.850 Waiving permit requirement in certain cases;
rules; notice; review; fees; disposition of fees
.855 Noncomplying removal of material or filling as
public nuisance
.880 Fill under permit presumed not to affect public
rights; public rights extinguished
.905 Applicability; rules
7Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
ORS Chapter State Lands- .551 Drilling Leases; Mining and drilling leases on Not relevant, as the draft 2021
273 Generally state lands; fee PGP applies coverages to
.553 South Slough Estuary; South Slough National pesticide applicators to waters
Estuarine Research Reserve; agreement between of the US.
Oregon and federal government; rules
.554 South Slough National Estuarine Research
Reserve Management Commission; powers; rules;
fees; membership; procedures; expenses
.775 Mineral and Geothermal Resource Rights;
Definitions for ORS 273.775 to 273.790
.780 Retention of mineral and geothermal resource
rights by state; exploration permit or lease; sale or
exchange
.785 Application of ORS 273.551 and 273.775 to
273.790; rules
ORS Chapter Submersible and .005 Definitions Not relevant, as the draft 2021
274 Submerged .025 Jurisdiction over submersible and submerged PGP applies coverages to
Lands lands generally pesticide applicators to waters
.040 Sale or lease of submersible lands; easements; of the US.
occupation of submerged and submersible lands for
water works
.043 Exemptions from leasing requirements; rules;
registration; use without charge; use with charge;
indemnification
.060 Regulation of harbor improvements; oyster beds;
public easement in submerged and submersible lands
.400 Beds of Streams, Lakes, Bays; Definition for
ORS 274.400 to 274.412
.402 Exclusive jurisdiction to assert title to submerged
or submersible lands in navigable waterway
.425 Definition for ORS 274.430 to 274.520
.430 State ownership of meandered lakes; status as
navigable and public waters
8Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.440 Acquisition of future rights to meandered lakes
denied; extension of riparian ownership; lands
overflowed by high water
.525 Removing Materials; City use of stream bed
material
.530 Lease or license of stream beds for removal of
material; rules for measurement of volume removed
.550 Removal of material without payment of
royalties; eligible material and uses
.560 Lease terms; bond or security; prohibited lease or
purchase option; monthly reports and payments; rules
.705 Tidal Submersible and Submerged; Definitions
for ORS 274.705 to 274.860
.710 Jurisdiction of department over tidal submerged
lands; easements; leases for oil, gas and sulfur
.715 Sulfur leases
.725 Scope of leases and permits; persons ineligible
.735 Application for survey permit; effect of permit;
rules
.740 Issuance of survey permit; renewal; reports
.745 Drilling logs and records
.760 Considerations involved in granting lease or
easement
.770 Prohibited drilling requirements
.790 Royalties
.805 Drill sites
.810 Commencement of drilling; operational
requirements
.825 Nonconflicting use of leased lands
.830 Protecting lands from drainage
.835 Conformance to laws and regulations; periodic
negotiations
9Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.840 Continuation of lease after cessation of
production
.850 Cancellation of lease; partial retention of
leasehold; removal of equipment
.855 Restoration of leasehold to original condition
.860 Protection and location of filled lands
.867 (currently numbered 274.879) Financial
assurance
.885 Lease of kelp fields
.890 Time allowed lessee for survey and erection of
plant; filing copy of survey with department
.895 Removing kelp without lease
.905 Submersible, submerged and new lands;
Definitions for ORS 274.905 to 274.940
.920 Creation of new lands upon submersible or
submerged lands
.940 Reservation of historically filled lands or new
lands
ORS Chapter Submersible and .820 Water contamination or pollution The draft 2021 PGP provides
274 Submerged protection to coastal waters by
Lands imposing enforceable NPDES
permit limits on those
discharges. The permit
establishes technology-based
effluent limitations based upon
CWA sections 301(b)(2)(A)
and 301(b)(2)(E), ensuring that
pesticide discharges will
comply with applicable State
water quality standards under
CWA section 301.
ORS Chapter State and Local .010 Policy of state toward outdoor recreation Not relevant, as the draft 2021
390 Parks; resources PGP in Oregon applies
10Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
Recreation .235 Archeological Sites and Historic Material; coverages to pesticide
Programs; Permits and conditions for excavation or removal of applicators to waters of the US
Scenic archaeological or historical material; rules; criminal in tribal trust lands in Oregon.
Waterways; penalty
Recreation Trails .237 Removal without permit; exceptions
.605 Ocean Shores; Definitions
.610 Policy
.615 Ownership of Pacific shore; declaration as state
recreation area
.640 Permit required for improvements on ocean
shore; exceptions
.650 Improvement permit procedure; fee; waiver or
reduction
.655 Standards for improvement permits
.661 Improvement without permit or contrary to
permit conditions as public nuisance
.663 Investigation of violation within ocean shore;
cease and desist order; enforcement of order by state
and local police
.666 Revocation, suspension or nonrenewal of
improvement permit
.669 Action by state or any person to abate public
nuisance; temporary restraining order or preliminary
injunction; compensation to public
.678 Motor vehicle and aircraft use regulated in
certain zones; zone markers; proceedings to establish
zones
.705 Prohibition against placing certain conduits
across recreation area and against removal of natural
products
.715 Permits for pipe, cable or conduit across ocean
shore, state recreation areas and submerged lands
11Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.725 Permits for removal of products along ocean
shore; rules
.729 Permits for operation of all-terrain vehicles on
ocean shore
.760 Exceptions from vegetation line
.770 Vegetation line described
.805 Scenic Waterways; Definitions for ORS 390.805
to 390.925
.826 Designated scenic waterways
.835 Highest and best use of waters within scenic
waterways; prohibitions; authority of various
agencies; water rights; conditions; recreational
prospecting; placer mining
.845 Administration of scenic waterways and related
adjacent lands; limitations on use; condemnation;
rules
ORS Chapter Sewage .605 Definitions for ORS 454.605 to 454.755 Not relevant, as the draft 2021
454 Treatment and .607 Policy PGP applies coverages to
Disposal .610 Regulation of gray water discharge; permit; rules pesticide applicators to waters
Systems .655 Permit required for construction; application; of the US.
time limit; special application procedure for septic
tank installation on parcel of 10 acres or more
.657 Variance from subsurface sewage disposal
system rules or standards; conditions; hearing
ORS Chapter Hazardous EPs within ORS 465.003 to 465.037 – Reduction of Not relevant, as the draft 2021
465 Waste and Use of Toxic Substances and Hazardous Waste PGP applies coverages to
Hazardous Generation pesticide applicators to waters
Materials EPs within ORS 465.101 to 465.180 – Bulk Petroleum of the US.
Product Withdrawal Regulation
EPs within ORS 465.200 to 465.455 – Removal of
Remedial Action
12Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
EPs within ORS 465.475 to 465.482 – Oregon
Environmental Cleanup Assistance
EPs within ORS 465.500 to 465.555 – Cleanup of
Contamination Resulting from Dry Cleaning Facilities
EPs within ORS 465.900 to 465.992 – Civil Penalties
ORS Chapter Environmental .936 Unlawful air pollution in the second degree Not relevant, as the draft 2021
468 Quality .939 Unlawful air pollution in the first degree PGP applies coverages to
Generally .941 Determination of number of punishable offenses pesticide applicators to waters
under ORS 468.936 and 468.939 of the US.
.949 Determination of number of punishable offenses
under ORS 468.943 and 468.946
.951 Environmental endangerment
ORS Chapter Environmental .943 Unlawful water pollution in the second degree The draft 2021 PGP provides
468 Quality .946 Unlawful water pollution in the first degree protection to coastal waters by
Generally imposing enforceable NPDES
permit limits on those
discharges. The permit
establishes technology-based
effluent limitations based upon
CWA sections 301(b)(2)(A)
and 301(b)(2)(E), ensuring that
pesticide discharges will
comply with applicable water
quality standards under CWA
section 301.
ORS Chapter Air Quality 468A.005 Definitions for air pollution laws Not relevant, as the draft 2021
468A 468A.010 Policy PGP applies coverages to
468A.020 Application of air pollution laws pesticide applicators to waters
468A.025 Air purity standards; air quality standards; of the US.
treatment and control of emissions; rules
468A.040 Permits; rules
13Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
468A.045 Activities prohibited without permit; limit
on activities with permit
468A.050 Classification of air contamination sources;
registration and reporting of sources; rules; fees
468A.055 Notice prior to construction of new sources;
order authorizing or prohibiting construction; effect of
no order; appeal
468A.060 Duty to comply with laws, rules and
standards
468A.070 Measurement and testing of contamination
sources; rules
468A.075 Variances from air contamination rules and
standards; delegation to local governments; notices
EPs within 468A.350 to 468A.455 – Motor Vehicle
Pollution Control
EPs within 468A.460 to 468A.515 – Solid Fuel
Burning Devices
EPs within 468A.625 to 468A.645 –
Chlorofluorocarbons and Halon Control
EPs within 468A.650 to 468A.660 – Aerosol Spray
Control
EPs within 468A.700 to 468A.760 – Asbestos
Abatement Projects
EPs within 468A.775 to 468A.785 – Indoor Air
Pollution Control
EPs within 468A.793 to 468A.803 – Diesel Engines
ORS Chapter Water Quality 468B.005 Definitions for water pollution control laws Not relevant, as the draft 2021
468B 468B.015 Policy PGP applies coverages to
468B.020 Prevention of pollution pesticide applicators to waters
468B.025 Prohibited activities of the US.
468B.040 Certification of hydroelectric power project;
comments of affected state agencies
14Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
468B.045 Certification of change to hydroelectric
power project; notification of federal agency
468B.046 Reauthorization of hydroelectric project not
to limit authority of department related to certification
of project for water quality purposes
468B.052 Fees for water quality permit to operate
suction dredge
468B.055 Plans and specifications for disposal,
treatment and sewerage systems
468B.060 Liability for damage to fish or wildlife or
habitat; agency to which damages payable
468B.070 Prohibited activities for certain
municipalities
468B.075 Definitions for 468B.080
468B.080 Prohibitions relating to garbage or sewage
dumping into waters of state
468B.083 When motor vehicle parts may be placed in
waters of state; rules
468B.085 Depositing vehicles or manufactured
structures into water prohibited
468B.090 Permit authorized for discharge of shrimp
and crab processing byproducts; conditions
468B.093 General permit for discharge of geothermal
spring water to surface water
468B.095 Use of sludge on agricultural, horticultural
or silvicultural land; rules
468B.120 Definitions for 468B.120 to 468B.135
468B.130 Prohibition on sale or distribution of
cleaning agents containing phosphorous; rules
468B.135 Exemptions
EPs within 468B.138 to 468B.144
468B.150 Definitions for 468B.150 to 468B.190
15Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
468B.155 State goal to prevent ground water
contamination
468B.160 Ground water management and use policy
EPs within 468B.200 to 468B.230
468B.300 Definitions for 468B.300 to 468B.500
468B.305 Entry of oil into waters of state prohibited;
exceptions
468B.310 Liability for violation of 468B.305;
exceptions
468B.315 Duty to collect and remove oil; dispersal of
oil
468B.320 Action by state; liability for state expense;
order; appeal
468B.337 Liquefied natural gas
468B.345 Oil spill contingency plan required to
operate facility or covered vessel in state or state
waters; exceptions
468B.350 Standards for contingency plans; oil spill
response zones; rules
468B.355 Contingency plans; participation in
maritime association; lien; liability of maritime
association; exemption from liability
468B.360 Review of contingency plan
468B.365 Plan approval; change affecting plan;
certificate of approval
468B.370 Determination of adequacy of plan; practice
drills; rules
468B.375 Inspection of facilities and vessels;
coordination with State of Washington
468B.380 Tank vessel inspection program; rules
468B.385 Modification of approval of contingency
plan; revocation of approval; violation
16Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
468B.390 Compliance with federal Oil Pollution Act
of 1990; proof of financial responsibility
468B.450 Willful or negligent discharge of oil; civil
penalty; authority of director to mitigate
468B.460 Rules
468B.475 Legislative finding; need for evidence of
financial assurance for ships transporting oil
468B.485 Methods of establishing financial assurance
ORS Chapter Water Quality 468B.048 Rules for standards of quality and purity; The draft 2021 PGP provides
468B factors to be considered; meeting standards protection to coastal waters by
468B.050 Water quality permit; issuance by rule or imposing enforceable NPDES
order; rules permit limits on those
468B.125 Policy to reduce phosphorous pollution discharges. The permit
establishes technology-based
effluent limitations based upon
CWA sections 301(b)(2)(A)
and 301(b)(2)(E), ensuring that
pesticide discharges will
comply with applicable State
water quality standards under
CWA section 301.
ORS Chapter Energy .300 Definitions Not relevant, as the draft 2021
469 .310 Policy PGP applies coverages to
.320 Siting certificate required; exceptions pesticide applicators to waters
.500 (currently numbered 469.507. Following are EPs: of the US.
.507(1), .507(2), .507(3), .507(4))
.510 (currently numbered 469.501 and 469.504.
Following are EPs: .501e, .501g, .501i, .501k, .501m,
and 469.504)
ORS Chapter Wildlife .004 Definitions Not relevant, as the draft 2021
496 Administration .007 “Game bird” defined PGP applies coverages to
.009 “Game fish” defined pesticide applicators to waters
.012 Wildlife policy of the US.
17Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.162 Establishing seasons, amounts and manner of
taking wildlife; rules
.171 Th or E Wildlife Species. Definitions for ORS
496.171 to 496.182; applicability date
.182 Protection and conservation programs; mitigation
of adverse impact on local economies; compliance by
state agencies; rules
ORS Chapter Fish Screening .301 Policy Not relevant, as the draft 2021
498 .306 Screening or by-pass devices for water PGP applies coverages to
diversions; fees; costs pesticide applicators to waters
.316 Exemption from screening or by-pass devices of the US.
ORS Chapter Commercial .006 General definitions Not relevant, as the draft 2021
506 Fishing and .011 Types of marine life defined PGP applies coverages to
Fisheries .016 “Salmon” defined pesticide applicators to waters
.025 “Unlawful to buy” defined of the US.
.028 “Conservation” defined
.109 Food fish management policy
.220 Erecting markers of closed waters; interference
with markers
.450 Definitions for ORS 506.450 to 506.465; rules
.455 Policy
.610 When possession prima facie evidence of taking
fish unlawfully
ORS Chapter Additional Fish .001 Definitions The draft 2021 PGP provides
509 Hatchery .112 Wasting food fish protection to fish hatcheries by
.115 Placing in waters fish harmful to food fish imposing enforceable NPDES
.120 Using electricity to disturb food fish permit limits on those
.122Definitions for ORS 509.125 to 509.155 discharges. The permit
.125 Placing substances in water to drive fish from establishes technology-based
closed areas effluent limitations based upon
.130 Placing substances in water or using explosives CWA sections 301(b)(2)(A)
to take or destroy food fish and 301(b)(2)(E), ensuring that
pesticide discharges will
18Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.140 Placing explosives or harmful substances in comply with applicable water
waters in course of lawful work; permit quality standards under CWA
.505 Placing in water matter injurious to shellfish section 301.
.510 Taking shellfish from marked beds without
permission; disturbing beds
.580 Definitions for ORS 509.580 to 509.590, 509.600
to 509.645 and 509.910; rules
.585 Fish passage required for artificial obstructions;
statewide inventory; waiver of requirement by
commission; rules; exemptions
.600 Destroying, injuring or taking fish near fishway;
permits to take fish
.610 Maintenance of fish passage required
.625 Power of department to inspect artificial
obstructions and have fish passage constructed or
remove obstruction
ORS Chapter Mining and EPs within ORS 517.750 to 517.790 Not relevant, as the draft 2021
517 Mining Claims .005 Definitions PGP applies coverages to
pesticide applicators to waters
of the US.
ORS Chapter Conservation of .025 Well or using well; extension; annual report; Not relevant, as the draft 2021
520 Gas and Oil grounds for granting or denying permit. PGP applies coverages to
.035 Waste of oil or gas prohibited pesticide applicators to waters
.095 Rules and orders; bond. of the US.
ORS Chapter Forest Practices .620 Definitions for ORS527.610 to 527.770 Not relevant, as the draft 2021
527 .630 Policy PGP applies coverages to
.660 Committees to review rules pesticide applicators to waters
.670 Commencement of operations; when notice and of the US.
written plan required; notice of chemical application;
appeal of plan
.700 Appeals from order of State Forester; hearings
procedure; stay of operation
19Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.710 Duties and powers of board; rules to protect
resources; inventory for resource protection;
consultation with other agencies
.722 Restrictions on local government adoption of
rules regulating forest operations; exceptions
.990 Criminal penalties
ORS Chapter Water Resources .220 Policy on water resources generally; integrated Not relevant, as the draft 2021
536 Administration state water resources strategy PGP applies coverages to
.700 Drainage basin” defined pesticide applicators to waters
.710 Policy of the US.
ORS Chapter Water .010 Definition of “Water Rights Act.” Not relevant, as the draft 2021
537 Appropriation .110 Public ownership of waters. PGP applies coverages to
.120 Right of appropriation; vested rights protected. pesticide applicators to waters
.130 Permit to appropriate water required; notification of the US.
to owner of certain land
.135 Permit required to appropriate water for
recharging ground water sources; minimum perennial
streamflow required for permit; exception.
.140 Application for permit; contents; maps and
drawings.
.150 Filing of application; determination of
completeness; initial review; preliminary
determination; notice; public comments; fees.
.160 Approval for beneficial use; agreement
authorizing use of ditch for waste or seepage water.
.170 Contested case hearing on application; final
order; appeal.
.240 Federal permit; time for obtaining; cancellation;
time for beginning and completing work.
.332 Definitions for ORS 537.332 to 537.360
.334 Findings.
20Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.336 State agencies authorized to request in-stream
water rights; agreement required when supply is stored
water.
.341 Certificate for in-stream water right.
.343 Proposed final order; conditions.
.346 Conversion of minimum perennial streamflows to
in-stream water rights; special provisions for
Willamette Basin.
.348 Purchase, lease or gift of water right for
conversion to in-stream water right; priority dates;
split use.
.349 Processing request for in-stream water right.
.350 Legal status of in-stream water right.
.352 Precedence of uses.
.400 Reservoir permits.
.410 Failure to commence or complete work, or to
properly apply water, as grounds for cancellation of
permit; irrigation districts, municipalities and public
utilities excepted.
.420 Notice of hearing.
.440 Cancellation of permit; priorities of other
permits.
.445 Hearing upon proposal to cancel permit or
appropriation; cancellation suspended pending review.
.450 Rules for proof as to work and use of water under
permits; noncompliance as evidence in cancellation
proceedings.
.505 Short title.
.515 Definitions for ORS 537.505 to 537.795 and
537.992.
.525 Policy.
.535 Unlawful use or appropriation of ground water,
including well construction and operation.
21Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.545 Exempt uses; map; filing of use; fee; rules.
.575 Permits granted, approved or pending under
former law.
.585 Beneficial use of ground water prior to August 3,
1955, recognized as right to appropriate water when
registered.
.595 Construction or alteration of well commenced
prior to August 3, 1955, recognized as right to
appropriate water when registered.
.605 Registration of right to appropriate ground water
claimed under ORS 537.585 or 537.595; registration
statement.
.610 Recording registration statement; issuing
certificate of registration; effect of certificate; rules;
fees.
.615 Application for permit to acquire new right or
enlarge existing right to appropriate ground water;
plans and drawings.
.620 Determination of completeness of application;
initial review; preliminary determination; notice;
public comments
.625 Final order; appeal; contents of permit.
.630 Time allowed for construction work under
permit; extension; certificate of completion; survey;
ground water right certificate; requirements for
supplemental water right.
.635 Assignment of application, certificate of
registration or permit
.680 Taking testimony; inspecting evidence;
contesting claim.
.685 Findings of fact and order of determination.
.690 Filing evidence, findings and determinations;
court proceedings.
22Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.695 Conclusive adjudication.
.705 Ground water appurtenant; change in use, place
of use or point of appropriation.
.730 Designation of critical ground water area; rules;
notice
.780 Powers of Water Resources Commission; rules;
limitations on authority.
.795 ORS 537.505 to 537.795 supplementary.
ORS Chapter Hydroelectric .012 Applicability of chapter to reauthorization of Not relevant, as the draft 2021
543 Projects existing hydroelectric project. PGP applies coverages to
.014 repealed by 2015 c.386 §15 pesticide applicators to waters
.015 Policy. of the US.
.017 Minimum standards for development of
hydroelectric power; public interest considerations;
rules.
.060 Investigations; access to project, maps, books and
other project data.
.110 Appropriation and use of water for power is
governed by this chapter.
.120 Waterpower projects to be in conformity with
this chapter.
.140 Projects or developments constructed by federal
government excepted from law.
.150 Municipal corporations and utility districts;
applicability of laws; powers of commission
respecting districts.
.210 Preliminary permits; application; contents; fee.
.225 Hearing on application; notice; policy.
.250 Permit; duration; transfer; cancellation; priority;
terms and conditions; denial.
.255 Determination of cumulative impacts of proposed
hydroelectric power projects; consolidated review;
applicability.
23Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.260 Licenses; duration; terms and conditions;
termination; denial of application; preference of
municipality or utility district.
.265 Testing of fish protection measures as condition
for hydroelectric project permit or license; scope and
cost.
.270 Preference in granting permit or license;
municipal use.
.280 Fee payments by licensee.
.290 Filing of maps, plans, estimates and other
materials; incorporation as part of license; alteration;
further statements and data.
.300 Conditions governing license; fees; waiver of
conditions.
.410 Construction of project; time for commencement
and completion; supply of service; extension of time;
nonperformance; termination of license.
.440 Transfer of license, rights or property; effect.
.610 Acquisition of project by state or municipality.
.760 Definition of water right.
.765 Certificate to use water for hydroelectric
purposes within artificial delivery system; expedited
application process; certificate conditions; annual
payments; fees.
ORS Chapter Wildflowers; .100 Definitions for ORS 564.100 to 564.135 The draft 2021 PGP specifies
564 Threatened or .115 Protection and conservation programs; action by procedures to protect federally-
Endangered state agencies; alternatives; findings required if listed endangered and
Plants agency fails to adopt alternatives threatened species and its
.120 Transactions in threatened or endangered species; designated critical habitat.
restrictions; prohibition EPA is proposing to retain the
procedures included in the
EPA’s 2016 final PGP. EPA is
currently conducting
24Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
consultation with the Services
(National Marine Fisheries
Service (NMFS) and U.S. Fish
and Wildlife Service) for the
reissuance of the draft 2021
PGP. Based on the results of
consultation with the Services,
EPA may include additional or
altered conditions to the draft
2021 PGP.
OAR 340-41 Water Quality .0002 Definitions The draft 2021 PGP provides
Standards: .0004 Antidegradation protection to coastal waters by
Beneficial Uses, .0007 Statewide Narrative Criteria imposing enforceable NPDES
Policies, and .0009 Bacteria permit limits on those
Criteria for .0011 Biocriteria discharges. The permit
Oregon .0016 Dissolved Oxygen establishes technology-based
.0021 pH effluent limitations based upon
.0028 Temperature CWA sections 301(b)(2)(A)
.0031 Total Dissolved Gas and 301(b)(2)(E), ensuring that
.0032 Total Dissolved Solids (TDS) pesticide discharges will
.0033 Toxic Substances comply with applicable State
.0036 Turbidity water quality standards under
.0061 Other Implementation of Water Quality Criteria CWA section 301.
.0104 Basin-Specific Criteria (Main Stem Columbia
River): Water Quality Standards and Policies Specific
to the Main Stem Columbia River
.0225 Basin-Specific Criteria (Mid Coast Basin):
Water Quality Standards and Policies for this Basin
.0235 Basin-Specific Criteria (North Coast): Water
Quality Standards and Policies for this Basin
.0275 Basin-Specific Criteria (Rogue): Water Quality
Standards and Policies for this Basin
25Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
.0305 Water Quality Standards and Policies for South
Coast Basin
.0326 Basin-Specific Criteria (Umpqua Basin): Water
Quality Standards and Policies for this Basin
26Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
Statewide Planning Goals & Guidelines
Program Planning Description Consistency Determination
Component Goal Title
Statewide Land Use To establish a land use planning process and policy Not relevant, as the draft 2021
Planning Goal 2 Planning framework as a basis for all decision and actions PGP applies coverages to
related to use of land and to assure an adequate pesticide applicators to waters of
factual base for such decisions and actions the US.
Statewide Air, Water and All waste and process discharges from future The draft 2021 PGP provides
Planning Goal 6 Land development, when combined with such discharges increased protection to coastal
Resources from existing developments shall not threaten to waters by imposing enforceable
Quality violate, or violate applicable state or federal NPDES permit limits on those
environmental quality statutes, rules and standards. discharges. The permit
establishes technology-based
effluent limitations based upon
CWA sections 301(b)(2)(A) and
301(b)(2)(E), ensuring that
pesticide discharges will comply
with applicable State water
quality standards under CWA
section 301.
Statewide Recreational To satisfy the recreational needs of the citizens of the Not relevant, as the draft 2021
Planning Goal 8 Needs state and visitors and, where appropriate, to provide PGP applies coverages to
for the siting of necessary recreational facilities pesticide applicators to waters of
including destination resorts the US.
Statewide Estuarine To recognize and protect the unique environmental, Under the draft 2021 PGP, all
Planning Goal Resources economic, and social values of each estuary and pesticide operators must control
16 associated wetlands; and to protect, maintain, where discharges as necessary to meet
appropriate develop, and where appropriate restore applicable numeric and narrative
the long-term environmental, economic, and social state, territory, or tribal water
values, diversity and benefits of Oregon’s estuaries. quality standards, for any
discharges authorized under this
permit, with compliance required
upon beginning such discharge.
27Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
If at any time an operator
becomes aware (e.g., through
self-monitoring or by
notification from the state, tribe,
or territory), or EPA determines,
that a discharge causes or
contributes to an excursion of
any applicable water quality
standards, the operator must take
corrective action as required in
the permit up to and including
the ceasing of the discharge, if
necessary.
Statewide Coastal To conserve, protect, where appropriate, develop and Under the draft 2021 PGP, all
Planning Goal Shorelands where appropriate restore the resources and benefits pesticide operators must control
17 of all coastal shorelands, recognizing their value for discharges as necessary to meet
protection and maintenance applicable numeric and narrative
state, territory, or tribal water
quality standards, for any
discharges authorized under this
permit, with compliance required
upon beginning such discharge.
If at any time an operator
becomes aware (e.g., through
self-monitoring or by
notification from the state, tribe,
or territory), or EPA determines,
that a discharge causes or
contributes to an excursion of
any applicable water quality
standards, the operator must take
corrective action as required in
the permit up to and including
28Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
the ceasing of the discharge, if
necessary.
Statewide Beaches and To conserve, protect, where appropriate develop, and Not relevant, as the draft 2021
Planning Goal Dunes where appropriate restore the resources and benefits PGP applies coverages to
18 of coastal beach and dune areas; and to reduce the pesticide applicators to waters of
hazard to human life and property from natural or the US.
man-induced actions associated with these areas.
Statewide Ocean To conserve marine resources and ecological Under the draft 2021 PGP, all
Planning Goal Resources functions for the purpose of providing long-term pesticide operators must control
19: ecological, economic, and social value and benefits to discharges as necessary to meet
future generations. applicable numeric and narrative
state, territory, or tribal water
quality standards, for any
discharges authorized under this
permit, with compliance required
upon beginning such discharge.
If at any time an operator
becomes aware (e.g., through
self-monitoring or by
notification from the state, tribe,
or territory), or EPA determines,
that a discharge causes or
contributes to an excursion of
any applicable water quality
standards, the operator must take
corrective action as required in
the permit up to and including
the ceasing of the discharge, if
necessary.
Territorial Sea Part 2, Under the draft 2021 PGP, all
Plan Sections A, B, pesticide operators must control
and C, discharges as necessary to meet
applicable numeric and narrative
29Federal Consistency Determination for EPA’s (draft) NPDES General Permit for
The Pesticide General Permit for Discharges from the Application of Pesticides in Oregon
Part 3, state, territory, or tribal water
Sections B.1, quality standards, for any
C.1, C.2, F.2, discharges authorized under this
and G.1-39 permit, with compliance required
upon beginning such discharge.
Part 4, All If at any time an operator
sections except becomes aware (e.g., through
3.a.2 self-monitoring or by
notification from the state, tribe,
Part 5, or territory), or EPA determines,
Appendices A, that a discharge causes or
B and C contributes to an excursion of
any applicable water quality
standards, the operator must take
corrective action as required in
the permit up to and including
the ceasing of the discharge, if
necessary.
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