- United States Code
- TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
- CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
- SUBCHAPTER IV - PERMITS AND LICENSES
Sec. 1342. National pollutant discharge elimination system
- (a)
Permits for discharge of pollutants
- (1)
Except as provided in sections 1328 and 1344 of this title,
the Administrator may, after opportunity for public hearing issue a
permit for the discharge of any pollutant, or combination of
pollutants, notwithstanding section 1311(a) of this title, upon
condition that such discharge will meet either (A) all applicable
requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343
of this title, or (B) prior to the taking of necessary implementing
actions relating to all such requirements, such conditions as the
Administrator determines are necessary to carry out the provisions
of this chapter.
- (2)
The Administrator shall prescribe conditions for such 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.
- (3)
The permit program of the Administrator under paragraph (1)
of this subsection, and permits issued thereunder, shall be subject
to the same terms, conditions, and requirements as apply to a State
permit program and permits issued thereunder under subsection (b)
of this section.
- (4)
All permits for discharges into the navigable waters issued
pursuant to section 407 of this title shall be deemed to be permits
issued under this subchapter, and permits issued under this
subchapter shall be deemed to be permits issued under section 407
of this title, and shall continue in force and effect for their
term unless revoked, modified, or suspended in accordance with the
provisions of this chapter.
- (5)
No permit for a discharge into the navigable waters shall be
issued under section 407 of this title after October 18, 1972. Each
application for a permit under section 407 of this title, pending
on October 18, 1972, shall be deemed to be an application for a
permit under this section. The Administrator shall authorize a
State, which he determines has the capability of administering a
permit program which will carry out the objectives of this chapter
to issue permits for discharges into the navigable waters within
the jurisdiction of such State. The Administrator may exercise the
authority granted him by the preceding sentence only during the
period which begins on October 18, 1972, and ends either on the
ninetieth day after the date of the first promulgation of
guidelines required by section 1314(i)(2) of this title, or the
date of approval by the Administrator of a permit program for such
State under subsection (b) of this section, whichever date first
occurs, and no such authorization to a State shall extend beyond
the last day of such period. Each such permit shall be subject to
such conditions as the Administrator determines are necessary to
carry out the provisions of this chapter. No such permit shall
issue if the Administrator objects to such issuance.
- (b)
State permit programs
At any time after the promulgation of the guidelines required by
subsection (i)(2) of section 1314 of this title, the Governor of
each State desiring to administer its own permit program for
discharges into navigable waters within its jurisdiction may submit
to the Administrator a full and complete description of the program
it proposes to establish and administer under State law or under an
interstate compact. In addition, such State shall submit a
statement from the attorney general (or the attorney for those
State water pollution control agencies which have independent legal
counsel), or from the chief legal officer in the case of an
interstate agency, that the laws of such State, or the interstate
compact, as the case may be, provide adequate authority to carry
out the described program. The Administrator shall approve each
submitted program unless he determines that adequate authority does
not exist:
- (1)
To issue permits which -
- (A)
apply, and insure compliance with, any applicable
requirements of sections 1311, 1312, 1316, 1317, and 1343 of this
title;
- (B)
are for fixed terms not exceeding five years; and
- (C)
can be terminated or modified for cause including, but not
limited to, the following:
- (i)
violation of any condition of the permit;
- (ii)
obtaining a permit by misrepresentation, or failure to
disclose fully all relevant facts;
- (iii)
change in any condition that requires either a
temporary or permanent reduction or elimination of the
permitted discharge;
- (D)
control the disposal of pollutants into wells;
- (2)
- (A)
To issue permits which apply, and insure compliance with,
all applicable requirements of section 1318 of this title; or
- (B)
To inspect, monitor, enter, and require reports to at least
the same extent as required in section 1318 of this title;
- (3)
To insure that the public, and any other State the waters of
which may be affected, receive notice of each application for a
permit and to provide an opportunity for public hearing before a
ruling on each such application;
- (4)
To insure that the Administrator receives notice of each
application (including a copy thereof) for a permit;
- (5)
To insure that any State (other than the permitting State),
whose waters may be affected by the issuance of a permit may submit
written recommendations to the permitting State (and the
Administrator) with respect to any permit application and, if any
part of such written recommendations are not accepted by the
permitting State, that the permitting State will notify such
affected State (and the Administrator) in writing of its failure to
so accept such recommendations together with its reasons for so
doing;
- (6)
To insure that no permit will be issued if, in the judgment
of the Secretary of the Army acting through the Chief of Engineers,
after consultation with the Secretary of the department in which
the Coast Guard is operating, anchorage and navigation of any of
the navigable waters would be substantially impaired thereby;
- (7)
To abate violations of the permit or the permit program,
including civil and criminal penalties and other ways and means of
enforcement;
- (8)
To insure that any permit for a discharge from a publicly
owned treatment works includes conditions to require the
identification in terms of character and volume of pollutants of
any significant source introducing pollutants subject to
pretreatment standards under section 1317(b) of this title into
such works and a program to assure compliance with such
pretreatment standards by each such source, in addition to adequate
notice to the permitting agency of (A) new introductions into such
works of pollutants from any source which would be a new source as
defined in section 1316 of this title if such source were
discharging pollutants, (B) new introductions of pollutants into
such works from a source which would be subject to section 1311 of
this title if it were discharging such pollutants, or (C) a
substantial change in volume or character of pollutants being
introduced into such works by a source introducing pollutants into
such works at the time of issuance of the permit. Such notice
shall include information on the quality and quantity of effluent
to be introduced into such treatment works and any anticipated
impact of such change in the quantity or quality of effluent to be
discharged from such publicly owned treatment works; and
- (9)
To insure that any industrial user of any publicly owned
treatment works will comply with sections 1284(b), 1317, and 1318
of this title.
- (c)
Suspension of Federal program upon submission of State program;
withdrawal of approval of State program; return of State
program to Administrator
- (1)
Not later than ninety days after the date on which a State
has submitted a program (or revision thereof) pursuant to
subsection (b) of this section, the Administrator shall suspend the
issuance of permits under subsection (a) of this section as to
those discharges subject to such program unless he determines that
the State permit program does not meet the requirements of
subsection (b) of this section or does not conform to the
guidelines issued under section 1314(i)(2) of this title. If the
Administrator so determines, he shall notify the State of any
revisions or modifications necessary to conform to such
requirements or guidelines.
- (2)
Any State permit program under this section shall at all
times be in accordance with this section and guidelines promulgated
pursuant to section 1314(i)(2) of this title.
- (3)
Whenever the Administrator determines after public hearing
that a State is not administering a program approved under this
section in accordance with requirements of this section, he shall
so notify the State and, if appropriate corrective action is not
taken within a reasonable time, not to exceed ninety days, the
Administrator shall withdraw approval of such program. The
Administrator shall not withdraw approval of any such program
unless he shall first have notified the State, and made public, in
writing, the reasons for such withdrawal.
- (4)
Limitations on partial permit program returns and
withdrawals. - A State may return to the Administrator
administration, and the Administrator may withdraw under paragraph
(3) of this subsection approval, of -
- (A)
a State partial permit program approved under subsection
(n)(3) of this section only if the entire permit program being
administered by the State department or agency at the time is
returned or withdrawn; and
- (B)
a State partial permit program approved under subsection
(n)(4) of this section only if an entire phased component of the
permit program being administered by the State at the time is
returned or withdrawn.
- (d)
Notification of Administrator
- (1)
Each State shall transmit to the Administrator a copy of each
permit application received by such State and provide notice to the
Administrator of every action related to the consideration of such
permit application, including each permit proposed to be issued by
such State.
- (2)
No permit shall issue (A) if the Administrator within ninety
days of the date of his notification under subsection (b)(5) of
this section objects in writing to the issuance of such permit, or
- (B)
if the Administrator within ninety days of the date of
transmittal of the proposed permit by the State objects in writing
to the issuance of such permit as being outside the guidelines and
requirements of this chapter. Whenever the Administrator objects
to the issuance of a permit under this paragraph such written
objection shall contain a statement of the reasons for such
objection and the effluent limitations and conditions which such
permit would include if it were issued by the Administrator.
- (3)
The Administrator may, as to any permit application, waive
paragraph (2) of this subsection.
- (4)
In any case where, after December 27, 1977, the
Administrator, pursuant to paragraph (2) of this subsection,
objects to the issuance of a permit, on request of the State, a
public hearing shall be held by the Administrator on such
objection. If the State does not resubmit such permit revised to
meet such objection within 30 days after completion of the hearing,
or, if no hearing is requested within 90 days after the date of
such objection, the Administrator may issue the permit pursuant to
subsection (a) of this section for such source in accordance with
the guidelines and requirements of this chapter.
- (e)
Waiver of notification requirement
In accordance with guidelines promulgated pursuant to subsection
(i)(2) of section 1314 of this title, the Administrator is
authorized to waive the requirements of subsection (d) of this
section at the time he approves a program pursuant to subsection
(b) of this section for any category (including any class, type, or
size within such category) of point sources within the State
submitting such program.
- (f)
Point source categories
The Administrator shall promulgate regulations establishing
categories of point sources which he determines shall not be
subject to the requirements of subsection (d) of this section in
any State with a program approved pursuant to subsection (b) of
this section. The Administrator may distinguish among classes,
types, and sizes within any category of point sources.
- (g)
Other regulations for safe transportation, handling, carriage,
storage, and stowage of pollutants
Any permit issued under this section for the discharge of
pollutants into the navigable waters from a vessel or other
floating craft shall be subject to any applicable regulations
promulgated by the Secretary of the department in which the Coast
Guard is operating, establishing specifications for safe
transportation, handling, carriage, storage, and stowage of
pollutants.
- (h)
Violation of permit conditions; restriction or prohibition upon
introduction of pollutant by source not previously utilizing
treatment works
In the event any condition of a permit for discharges from a
treatment works (as defined in section 1292 of this title) which is
publicly owned is violated, a State with a program approved under
subsection (b) of this section or the Administrator, where no State
program is approved or where the Administrator determines pursuant
to section 1319(a) of this title that a State with an approved
program has not commenced appropriate enforcement action with
respect to such permit, may proceed in a court of competent
jurisdiction to restrict or prohibit the introduction of any
pollutant into such treatment works by a source not utilizing such
treatment works prior to the finding that such condition was
violated.
- (i)
Federal enforcement not limited
Nothing in this section shall be construed to limit the authority
of the Administrator to take action pursuant to section 1319 of
this title.
- (j)
Public information
A copy of each permit application and each permit issued under
this section shall be available to the public. Such permit
application or permit, or portion thereof, shall further be
available on request for the purpose of reproduction.
- (k)
Compliance with permits
Compliance with a permit issued pursuant to this section shall be
deemed compliance, for purposes of sections 1319 and 1365 of this
title, with sections 1311, 1312, 1316, 1317, and 1343 of this
title, except any standard imposed under section 1317 of this title
for a toxic pollutant injurious to human health. Until December
31, 1974, in any case where a permit for discharge has been applied
for pursuant to this section, but final administrative disposition
of such application has not been made, such discharge shall not be
a violation of (1) section 1311, 1316, or 1342 of this title, or
- (2)
section 407 of this title, unless the Administrator or other
plaintiff proves that final administrative disposition of such
application has not been made because of the failure of the
applicant to furnish information reasonably required or requested
in order to process the application. For the 180-day period
beginning on October 18, 1972, in the case of any point source
discharging any pollutant or combination of pollutants immediately
prior to such date which source is not subject to section 407 of
this title, the discharge by such source shall not be a violation
of this chapter if such a source applies for a permit for discharge
pursuant to this section within such 180-day period.
- (l)
Limitation on permit requirement
- (1)
Agricultural return flows
The Administrator shall not require a permit under this section
for discharges composed entirely of return flows from irrigated
agriculture, nor shall the Administrator directly or indirectly,
require any State to require such a permit.
- (2)
Stormwater runoff from oil, gas, and mining operations
The Administrator shall not require a permit under this
section, nor shall the Administrator directly or indirectly
require any State to require a permit, for discharges of
stormwater runoff from mining operations or oil and gas
exploration, production, processing, or treatment operations or
transmission facilities, composed entirely of flows which are
from conveyances or systems of conveyances (including but not
limited to pipes, conduits, ditches, and channels) used for
collecting and conveying precipitation runoff and which are not
contaminated by contact with, or do not come into contact with,
any overburden, raw material, intermediate products, finished
product, byproduct, or waste products located on the site of such
operations.
- (m)
Additional pretreatment of conventional pollutants not required
To the extent a treatment works (as defined in section 1292 of
this title) which is publicly owned is not meeting the requirements
of a permit issued under this section for such treatment works as a
result of inadequate design or operation of such treatment works,
the Administrator, in issuing a permit under this section, shall
not require pretreatment by a person introducing conventional
pollutants identified pursuant to section 1314(a)(4) of this title
into such treatment works other than pretreatment required to
assure compliance with pretreatment standards under subsection
(b)(8) of this section and section 1317(b)(1) of this title.
Nothing in this subsection shall affect the Administrator's
authority under sections 1317 and 1319 of this title, affect State
and local authority under sections 1317(b)(4) and 1370 of this
title, relieve such treatment works of its obligations to meet
requirements established under this chapter, or otherwise preclude
such works from pursuing whatever feasible options are available to
meet its responsibility to comply with its permit under this
section.
- (n)
Partial permit program
- (1)
State submission
The Governor of a State may submit under subsection (b) of this
section a permit program for a portion of the discharges into the
navigable waters in such State.
- (2)
Minimum coverage
A partial permit program under this subsection shall cover, at
a minimum, administration of a major category of the discharges
into the navigable waters of the State or a major component of
the permit program required by subsection (b) of this section.
- (3)
Approval of major category partial permit programs
The Administrator may approve a partial permit program covering
administration of a major category of discharges under this
subsection if -
- (A)
such program represents a complete permit program and
covers all of the discharges under the jurisdiction of a
department or agency of the State; and
- (B)
the Administrator determines that the partial program
represents a significant and identifiable part of the State
program required by subsection (b) of this section.
- (4)
Approval of major component partial permit programs
The Administrator may approve under this subsection a partial
and phased permit program covering administration of a major
component (including discharge categories) of a State permit
program required by subsection (b) of this section if -
- (A)
the Administrator determines that the partial program
represents a significant and identifiable part of the State
program required by subsection (b) of this section; and
- (B)
the State submits, and the Administrator approves, a plan
for the State to assume administration by phases of the
remainder of the State program required by subsection (b) of
this section by a specified date not more than 5 years after
submission of the partial program under this subsection and
agrees to make all reasonable efforts to assume such
administration by such date.
- (o)
Anti-backsliding
- (1)
General prohibition
In the case of effluent limitations established on the basis of
subsection (a)(1)(B) of this section, a permit may not be
renewed, reissued, or modified on the basis of effluent
guidelines promulgated under section 1314(b) of this title
subsequent to the original issuance of such permit, to contain
effluent limitations which are less stringent than the comparable
effluent limitations in the previous permit. In the case of
effluent limitations established on the basis of section
1311(b)(1)(C) or section 1313(d) or (e) of this title, a permit
may not be renewed, reissued, or modified to contain effluent
limitations which are less stringent than the comparable effluent
limitations in the previous permit except in compliance with
section 1313(d)(4) of this title.
- (2)
Exceptions
A permit with respect to which paragraph (1) applies may be
renewed, reissued, or modified to contain a less stringent
effluent limitation applicable to a pollutant if -
- (A)
material and substantial alterations or additions to the
permitted facility occurred after permit issuance which justify
the application of a less stringent effluent limitation;
- (B)
- (i)
information is available which was not available at
the time of permit issuance (other than revised regulations,
guidance, or test methods) and which would have justified the
application of a less stringent effluent limitation at the time
of permit issuance; or
- (ii)
the Administrator determines that technical mistakes or
mistaken interpretations of law were made in issuing the permit
under subsection (a)(1)(B) of this section;
- (C)
a less stringent effluent limitation is necessary because
of events over which the permittee has no control and for which
there is no reasonably available remedy;
- (D)
the permittee has received a permit modification under
section 1311(c), 1311(g), 1311(h), 1311(i), 1311(k), 1311(n),
or 1326(a) of this title; or
- (E)
the permittee has installed the treatment facilities
required to meet the effluent limitations in the previous
permit and has properly operated and maintained the facilities
but has nevertheless been unable to achieve the previous
effluent limitations, in which case the limitations in the
reviewed, reissued, or modified permit may reflect the level of
pollutant control actually achieved (but shall not be less
stringent than required by effluent guidelines in effect at the
time of permit renewal, reissuance, or modification).
Subparagraph (B) shall not apply to any revised waste load
allocations or any alternative grounds for translating water
quality standards into effluent limitations, except where the
cumulative effect of such revised allocations results in a
decrease in the amount of pollutants discharged into the
concerned waters, and such revised allocations are not the result
of a discharger eliminating or substantially reducing its
discharge of pollutants due to complying with the requirements of
this chapter or for reasons otherwise unrelated to water quality.
- (3)
Limitations
In no event may a permit with respect to which paragraph (1)
applies be renewed, reissued, or modified to contain an effluent
limitation which is less stringent than required by effluent
guidelines in effect at the time the permit is renewed, reissued,
or modified. In no event may such a permit to discharge into
waters be renewed, reissued, or modified to contain a less
stringent effluent limitation if the implementation of such
limitation would result in a violation of a water quality
standard under section 1313 of this title applicable to such
waters.
- (p)
Municipal and industrial stormwater discharges
- (1)
General rule
Prior to October 1, 1994, the Administrator or the State (in
the case of a permit program approved under this section) shall
not require a permit under this section for discharges composed
entirely of stormwater.
- (2)
Exceptions
Paragraph (1) shall not apply with respect to the following
stormwater discharges:
- (A)
A discharge with respect to which a permit has been
issued under this section before February 4, 1987.
- (B)
A discharge associated with industrial activity.
- (C)
A discharge from a municipal separate storm sewer system
serving a population of 250,000 or more.
- (D)
A discharge from a municipal separate storm sewer system
serving a population of 100,000 or more but less than 250,000.
- (E)
A discharge for which the Administrator or the State, as
the case may be, determines that the stormwater discharge
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United
States.
- (3)
Permit requirements
- (A)
Industrial discharges
Permits for discharges associated with industrial activity
shall meet all applicable provisions of this section and
section 1311 of this title.
- (B)
Municipal discharge
Permits for discharges from municipal storm sewers -
- (i)
may be issued on a system- or jurisdiction-wide basis;
- (ii)
shall include a requirement to effectively prohibit
non-stormwater discharges into the storm sewers; and
- (iii)
shall require controls to reduce the discharge of
pollutants to the maximum extent practicable, including
management practices, control techniques and system, design
and engineering methods, and such other provisions as the
Administrator or the State determines appropriate for the
control of such pollutants.
- (4)
Permit application requirements
- (A)
Industrial and large municipal discharges
Not later than 2 years after February 4, 1987, the
Administrator shall establish regulations setting forth the
permit application requirements for stormwater discharges
described in paragraphs (2)(B) and (2)(C). Applications for
permits for such discharges shall be filed no later than 3
years after February 4, 1987. Not later than 4 years after
February 4, 1987, the Administrator or the State, as the case
may be, shall issue or deny each such permit. Any such permit
shall provide for compliance as expeditiously as practicable,
but in no event later than 3 years after the date of issuance
of such permit.
- (B)
Other municipal discharges
Not later than 4 years after February 4, 1987, the
Administrator shall establish regulations setting forth the
permit application requirements for stormwater discharges
described in paragraph (2)(D). Applications for permits for
such discharges shall be filed no later than 5 years after
February 4, 1987. Not later than 6 years after February 4,
1987, the Administrator or the State, as the case may be, shall
issue or deny each such permit. Any such permit shall provide
for compliance as expeditiously as practicable, but in no event
later than 3 years after the date of issuance of such permit.
- (5)
Studies
The Administrator, in consultation with the States, shall
conduct a study for the purposes of -
- (A)
identifying those stormwater discharges or classes of
stormwater discharges for which permits are not required
pursuant to paragraphs (1) and (2) of this subsection;
- (B)
determining, to the maximum extent practicable, the
nature and extent of pollutants in such discharges; and
- (C)
establishing procedures and methods to control stormwater
discharges to the extent necessary to mitigate impacts on water
quality.
Not later than October 1, 1988, the Administrator shall submit to
Congress a report on the results of the study described in
subparagraphs (A) and (B). Not later than October 1, 1989, the
Administrator shall submit to Congress a report on the results of
the study described in subparagraph (C).
- (6)
Regulations
Not later than October 1, 1993, the Administrator, in
consultation with State and local officials, shall issue
regulations (based on the results of the studies conducted under
paragraph (5)) which designate stormwater discharges, other than
those discharges described in paragraph (2), to be regulated to
protect water quality and shall establish a comprehensive program
to regulate such designated sources. The program shall, at a
minimum, (A) establish priorities, (B) establish requirements for
State stormwater management programs, and (C) establish
expeditious deadlines. The program may include performance
standards, guidelines, guidance, and management practices and
treatment requirements, as appropriate.
