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Title 40: Protection of Environment

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PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 

DISCHARGE ELIMINATION SYSTEM 

Section Contents

Subpart A—Definitions and General Program Requirements

§ 122.1 Purpose and scope.

§ 122.2 Definitions.

§ 122.3 Exclusions.

§ 122.4 Prohibitions (applicable to State NPDES programs, see §123.25).

§ 122.5 Effect of a permit.

§ 122.6 Continuation of expiring permits.

§ 122.7 Confidentiality of information.

Subpart B—Permit Application and Special NPDES Program Requirements

§ 122.21 Application for a permit (applicable to State programs, see §123.25).

§ 122.22 Signatories to permit applications and reports (applicable to State programs, see 

§123.25).

§ 122.23 Concentrated animal feeding operations (applicable to State NPDES programs, 

see §123.25).

§ 122.24 Concentrated aquatic animal production facilities (applicable to State NPDES 

programs, see §123.25).

§ 122.25 Aquaculture projects (applicable to State NPDES programs, see §123.25).

§ 122.26 Storm water discharges (applicable to State NPDES programs, see §123.25).

§ 122.27 Silvicultural activities (applicable to State NPDES programs, see §123.25).

§ 122.28 General permits (applicable to State NPDES programs, see §123.25).

§ 122.29 New sources and new dischargers.

§ 122.30 What are the objectives of the storm water regulations for small MS4s?

§ 122.31 As a Tribe, what is my role under the NPDES storm water program?

§ 122.32 As an operator of a small MS4, am I regulated under the NPDES storm water 

program?

§ 122.33 If I am an operator of a regulated small MS4, how do I apply for an NPDES permit 

and when do I have to apply?

§ 122.34 As an operator of a regulated small MS4, what will my NPDES MS4 storm water 

permit require?

§ 122.35 As an operator of a regulated small MS4, may I share the responsibility to 

implement the minimum control measures with other entities?

§ 122.36 As an operator of a regulated small MS4, what happens if I don't comply with the 

application or permit requirements in §§122.33 through 122.35?

§ 122.37 Will the small MS4 storm water program regulations at §§122.32 through 122.36 

and §123.35 of this chapter change in the future?

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Subpart C—Permit Conditions

§ 122.41 Conditions applicable to all permits (applicable to State programs, see §123.25).

§ 122.42 Additional conditions applicable to specified categories of NPDES permits 

(applicable to State NPDES programs, see §123.25).

§ 122.43 Establishing permit conditions (applicable to State programs, see §123.25).

§ 122.44 Establishing limitations, standards, and other permit conditions (applicable to State 

NPDES programs, see §123.25).

§ 122.45 Calculating NPDES permit conditions (applicable to State NPDES programs, see 

§123.25).

§ 122.46 Duration of permits (applicable to State programs, see §123.25).

§ 122.47 Schedules of compliance.

§ 122.48 Requirements for recording and reporting of monitoring results (applicable to State 

programs, see §123.25).

§ 122.49 Considerations under Federal law.

§ 122.50 Disposal of pollutants into wells, into publicly owned treatment works or by land 

application (applicable to State NPDES programs, see §123.25).

Subpart D—Transfer, Modification, Revocation and Reissuance, and Termination of 

Permits

§ 122.61 Transfer of permits (applicable to State programs, see §123.25).

§ 122.62 Modification or revocation and reissuance of permits (applicable to State programs, 

see §123.25).

§ 122.63 Minor modifications of permits.

§ 122.64 Termination of permits (applicable to State programs, see §123.25).

Appendix A to Part 122—NPDES Primary Industry Categories

Appendix B to Part 122 [Reserved]

Appendix C to Part 122—Criteria for Determining a Concentrated Aquatic Animal Production 

Facility (§122.24)

Appendix D to Part 122—NPDES Permit Application Testing Requirements (§122.21)

Appendix E to Part 122—Rainfall Zones of the United States

Appendix F to Part 122—Incorporated Places With Populations Greater Than 250,000 

According to the 1990 Decennial Census by the Bureau of the Census

Appendix G to Part 122—Incorporated Places With Populations Greater Than 100,000 But 

Less Than 250,000 According to the 1990 Decennial Census by the Bureau of the Census

Appendix H to Part 122—Counties With Unincorporated Urbanized Areas With a Population 

of 250,000 or More According to the 1990 Decennial Census by the Bureau of the Census

Appendix I to Part 122—Counties With Unincorporated Urbanized Areas Greater Than 

100,000, But Less Than 250,000 According to the 1990 Decennial Census by the Bureau of 

the Census

Appendix J to Part 122—NPDES Permit Testing Requirements for Publicly Owned Treatment 

Works (§122.21(j))

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

Source: 48 FR 14153, Apr. 1, 1983, unless otherwise noted. 

Subpart A—Definitions and General Program Requirements 

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§ 122.1 Purpose and scope. 

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(a) Coverage. (1) The regulatory provisions contained in this part and parts 123, and 124 of this chapter 

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implement the National Pollutant Discharge Elimination System (NPDES) Program under sections 318, 

402, and 405 of the Clean Water Act (CWA) (Public Law 92–500, as amended, 33 U.S.C. 1251 et seq. ) 

(2) These provisions cover basic EPA permitting requirements (this part 122), what a State must do to 

obtain approval to operate its program in lieu of a Federal program and minimum requirements for 

administering the approved State program (part 123 of this chapter), and procedures for EPA processing 

of permit applications and appeals (part 124 of this chapter). 

(3) These provisions also establish the requirements for public participation in EPA and State permit 

issuance and enforcement and related variance proceedings, and in the approval of State NPDES 

programs. These provisions carry out the purposes of the public participation requirements of part 25 of 

this chapter, and supersede the requirements of that part as they apply to actions covered under this 

part and parts 123, and 124 of this chapter. 

(4) Regulatory provisions in Parts 125, 129, 133, 136 of this chapter and 40 CFR subchapter N and 

subchapter O of this chapter also implement the NPDES permit program. 

(5) Certain requirements set forth in parts 122 and 124 of this chapter are made applicable to approved 

State programs by reference in part 123 of this chapter. These references are set forth in §123.25 of this 

chapter. If a section or paragraph of part 122 or 124 of this chapter is applicable to States, through 

reference in §123.25 of this chapter, that fact is signaled by the following words at the end of the section 

or paragraph heading: (Applicable to State programs, see §123.25 of this chapter). If these words are 

absent, the section (or paragraph) applies only to EPA administered permits. Nothing in this part and 

parts 123, or 124 of this chapter precludes more stringent State regulation of any activity covered by the 

regulations in 40 CFR parts 122, 123, and 124, whether or not under an approved State program. 

(b) Scope of the NPDES permit requirement. (1) The NPDES program requires permits for the discharge 

of “pollutants” from any “point source” into “waters of the United States.” The terms “pollutant”, “point 

source” and “waters of the United States” are defined at §122.2. 

(2) The permit program established under this part also applies to owners or operators of any treatment 

works treating domestic sewage, whether or not the treatment works is otherwise required to obtain an 

NPDES permit, unless all requirements implementing section 405(d) of the CWA applicable to the 

treatment works treating domestic sewage are included in a permit issued under the appropriate 

provisions of subtitle C of the Solid Waste Disposal Act, Part C of the Safe Drinking Water Act, the 

Marine Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under State permit 

programs approved by the Administrator as adequate to assure compliance with section 405 of the 

CWA. 

(3) The Regional Administrator may designate any person subject to the standards for sewage sludge 

use and disposal as a “treatment works treating domestic sewage” as defined in §122.2, where the 

Regional Administrator finds that a permit is necessary to protect public health and the environment from 

the adverse effects of sewage sludge or to ensure compliance with the technical standards for sludge 

use and disposal developed under CWA section 405(d). Any person designated as a “treatment works 

treating domestic sewage” shall submit an application for a permit under §122.21 within 180 days of 

being notified by the Regional Administrator that a permit is required. The Regional Administrator's 

decision to designate a person as a “treatment works treating domestic sewage” under this paragraph 

shall be stated in the fact sheet or statement of basis for the permit. 

[Note to §122.1: Information concerning the NPDES program and its regulations can be 

obtained by contacting the Water Permits Division(4203), Office of Wastewater Management, 

U.S.E.P.A., Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 at 

(202) 260–9545 and by visiting the homepage at http://www.epa.gov/owm/ ]

[65 FR 30904, May 15, 2000, as amended at 72 FR 11211, Mar. 12, 2007] 

§ 122.2 Definitions. 

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The following definitions apply to parts 122, 123, and 124. Terms not defined in this section have the 

meaning given by CWA. When a defined term appears in a definition, the defined term is sometimes 

placed in quotation marks as an aid to readers. 

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Administrator means the Administrator of the United States Environmental Protection Agency, or an 

authorized representative. 

Animal feeding operation is defined at §122.23. 

Applicable standards and limitations means all State, interstate, and federal standards and limitations to 

which a “discharge,” a “sewage sludge use or disposal practice,” or a related activity is subject under the 

CWA, including “effluent limitations,” water quality standards, standards of performance, toxic effluent 

standards or prohibitions, “best management practices,” pretreatment standards, and “standards for 

sewage sludge use or disposal” under sections 301, 302, 303, 304, 306, 307, 308, 403 and 405 of CWA. 

Application means the EPA standard national forms for applying for a permit, including any additions, 

revisions or modifications to the forms; or forms approved by EPA for use in “approved States,” including 

any approved modifications or revisions. 

Approved program or approved State means a State or interstate program which has been approved or 

authorized by EPA under part 123. 

Aquaculture project is defined at §122.25. 

Average monthly discharge limitation means the highest allowable average of “daily discharges” over a 

calendar month, calculated as the sum of all “daily discharges” measured during a calendar month 

divided by the number of “daily discharges” measured during that month. 

Average weekly discharge limitation means the highest allowable average of “daily discharges” over a 

calendar week, calculated as the sum of all “daily discharges” measured during a calendar week divided 

by the number of “daily discharges” measured during that week. 

Best management practices (“BMPs”) means schedules of activities, prohibitions of practices, 

maintenance procedures, and other management practices to prevent or reduce the pollution of “waters 

of the United States.” BMPs also include treatment requirements, operating procedures, and practices to 

control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material 

storage. 

BMPs means “best management practices.” 

Class I sludge management facility means any POTW identified under 40 CFR 403.8(a) as being 

required to have an approved pretreatment program (including such POTWs located in a State that has 

elected to assume local program responsibilities pursuant to 40 CFR 403.10(e)) and any other treatment 

works treating domestic sewage classified as a Class I sludge management facility by the Regional 

Administrator, or, in the case of approved State programs, the Regional Administrator in conjunction with 

the State Director, because of the potential for its sludge use or disposal practices to adversely affect 

public health and the environment. 

Bypass is defined at §122.41(m). 

Concentrated animal feeding operation is defined at §122.23. 

Concentrated aquatic animal feeding operation is defined at §122.24. 

Contiguous zone means the entire zone established by the United States under Article 24 of the 

Convention on the Territorial Sea and the Contiguous Zone. 

Continuous discharge means a “discharge” which occurs without interruption throughout the operating 

hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar 

activities. 

CWA means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or 

Federal Water Pollution Control Act Amendments of 1972) Public Law 92–500, as amended by Public 

Law 95–217, Public Law 95–576, Public Law 96–483 and Public Law 97–117, 33 U.S.C. 1251 et seq. 

CWA and regulations means the Clean Water Act (CWA) and applicable regulations promulgated 

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thereunder. In the case of an approved State program, it includes State program requirements. 

Daily discharge means the “discharge of a pollutant” measured during a calendar day or any 24-hour 

period that reasonably represents the calendar day for purposes of sampling. For pollutants with 

limitations expressed in units of mass, the “daily discharge” is calculated as the total mass of the 

pollutant discharged over the day. For pollutants with limitations expressed in other units of 

measurement, the “daily discharge” is calculated as the average measurement of the pollutant over the 

day. 

Direct discharge means the “discharge of a pollutant.” 

Director means the Regional Administrator or the State Director, as the context requires, or an 

authorized representative. When there is no “approved State program,” and there is an EPA 

administered program, “Director” means the Regional Administrator. When there is an approved State 

program, “Director” normally means the State Director. In some circumstances, however, EPA retains 

the authority to take certain actions even when there is an approved State program. (For example, when 

EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction 

over that permit after program approval, see §123.1.) In such cases, the term “Director” means the 

Regional Administrator and not the State Director. 

Discharge when used without qualification means the “discharge of a pollutant.” 

Discharge of a pollutant means: 

(a) Any addition of any “pollutant” or combination of pollutants to “waters of the United States” from any 

“point source,” or 

(b) Any addition of any pollutant or combination of pollutants to the waters of the “contiguous zone” or 

the ocean from any point source other than a vessel or other floating craft which is being used as a 

means of transportation. 

This definition includes additions of pollutants into waters of the United States from: surface runoff which 

is collected or channelled by man; discharges through pipes, sewers, or other conveyances owned by a 

State, municipality, or other person which do not lead to a treatment works; and discharges through 

pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not 

include an addition of pollutants by any “indirect discharger.” 

Discharge Monitoring Report (“DMR”) means the EPA uniform national form, including any subsequent 

additions, revisions, or modifications for the reporting of self-monitoring results by permittees. DMRs 

must be used by “approved States” as well as by EPA. EPA will supply DMRs to any approved State 

upon request. The EPA national forms may be modified to substitute the State Agency name, address, 

logo, and other similar information, as appropriate, in place of EPA's. 

DMR means “Discharge Monitoring Report.” 

Draft permit means a document prepared under §124.6 indicating the Director's tentative decision to 

issue or deny, modify, revoke and reissue, terminate, or reissue a “permit.” A notice of intent to terminate 

a permit, and a notice of intent to deny a permit, as discussed in §124.5, are types of “draft permits.” A 

denial of a request for modification, revocation and reissuance, or termination, as discussed in §124.5, is 

not a “draft permit.” A “proposed permit” is not a “draft permit.” 

Effluent limitation means any restriction imposed by the Director on quantities, discharge rates, and 

concentrations of “pollutants” which are “discharged” from “point sources” into “waters of the United 

States,” the waters of the “contiguous zone,” or the ocean. 

Effluent limitations guidelines means a regulation published by the Administrator under section 304(b) of 

CWA to adopt or revise “effluent limitations.” 

Environmental Protection Agency (“EPA”) means the United States Environmental Protection Agency. 

EPA means the United States “Environmental Protection Agency.” 

Facility or activity means any NPDES “point source” or any other facility or activity (including land or 

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appurtenances thereto) that is subject to regulation under the NPDES program. 

Federal Indian reservation means all land within the limits of any Indian reservation under the jurisdiction 

of the United States Government, notwithstanding the issuance of any patent, and including rights-ofway running through the reservation. 

General permit means an NPDES “permit” issued under §122.28 authorizing a category of discharges 

under the CWA within a geographical area. 

Hazardous substance means any substance designated under 40 CFR part 116 pursuant to section 311 

of CWA. 

Indian country means: 

(1) All land within the limits of any Indian reservation under the jurisdiction of the United States 

Government, notwithstanding the issuance of any patent, and, including rights-of-way running through 

the reservation; 

(2) All dependent Indian communities with the borders of the United States whether within the originally 

or subsequently acquired territory thereof, and whether within or without the limits of a state; and 

(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way 

running through the same. 

Indian Tribe means any Indian Tribe, band, group, or community recognized by the Secretary of the 

Interior and exercising governmental authority over a Federal Indian reservation. 

Indirect discharger means a nondomestic discharger introducing “pollutants” to a “publicly owned 

treatment works.” 

Individual control strategy is defined at 40 CFR 123.46(c). 

Interstate agency means an agency of two or more States established by or under an agreement or 

compact approved by the Congress, or any other agency of two or more States having substantial 

powers or duties pertaining to the control of pollution as determined and approved by the Administrator 

under the CWA and regulations. 

Major facility means any NPDES “facility or activity” classified as such by the Regional Administrator, or, 

in the case of “approved State programs,” the Regional Administrator in conjunction with the State 

Director. 

Maximum daily discharge limitation means the highest allowable “daily discharge.” 

Municipality means a city, town, borough, county, parish, district, association, or other public body 

created by or under State law and having jurisdiction over disposal of sewage, industrial wastes, or other 

wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved 

management agency under section 208 of CWA. 

Municipal separate storm sewer system is defined at §122.26 (b)(4) and (b)(7). 

National Pollutant Discharge Elimination System (NPDES) means the national program for issuing, 

modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and 

enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of CWA. The term includes 

an “approved program.” 

New discharger means any building, structure, facility, or installation: 

(a) From which there is or may be a “discharge of pollutants;” 

(b) That did not commence the “discharge of pollutants” at a particular “site” prior to August 13, 1979; 

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(c) Which is not a “new source;” and 

(d) Which has never received a finally effective NDPES permit for discharges at that “site.” 

This definition includes an “indirect discharger” which commences discharging into “waters of the United 

States” after August 13, 1979. It also includes any existing mobile point source (other than an offshore or 

coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a 

seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a 

“site” for which it does not have a permit; and any offshore or coastal mobile oil and gas exploratory 

drilling rig or coastal mobile oil and gas developmental drilling rig that commences the discharge of 

pollutants after August 13, 1979, at a “site” under EPA's permitting jurisdiction for which it is not covered 

by an individual or general permit and which is located in an area determined by the Regional 

Administrator in the issuance of a final permit to be an area or biological concern. In determining 

whether an area is an area of biological concern, the Regional Administrator shall consider the factors 

specified in 40 CFR 125.122(a) (1) through (10). 

An offshore or coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig will be 

considered a “new discharger” only for the duration of its discharge in an area of biological concern. 

New source means any building, structure, facility, or installation from which there is or may be a 

“discharge of pollutants,” the construction of which commenced: 

(a) After promulgation of standards of performance under section 306 of CWA which are applicable to 

such source, or 

(b) After proposal of standards of performance in accordance with section 306 of CWA which are 

applicable to such source, but only if the standards are promulgated in accordance with section 306 

within 120 days of their proposal. 

NPDES means “National Pollutant Discharge Elimination System.” 

Owner or operator means the owner or operator of any “facility or activity” subject to regulation under the 

NPDES program. 

Permit means an authorization, license, or equivalent control document issued by EPA or an “approved 

State” to implement the requirements of this part and parts 123 and 124. “Permit” includes an NPDES 

“general permit” (§122.28). Permit does not include any permit which has not yet been the subject of 

final agency action, such as a “draft permit” or a “proposed permit.” 

Person means an individual, association, partnership, corporation, municipality, State or Federal agency, 

or an agent or employee thereof. 

Point source means any discernible, confined, and discrete conveyance, including but not limited to, any 

pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal 

feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants 

are or may be discharged. This term does not include return flows from irrigated agriculture or 

agricultural storm water runoff. (See §122.3). 

Pollutant means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, 

sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those 

regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq. )), heat, wrecked 

or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste 

discharged into water. It does not mean: 

(a) Sewage from vessels; or 

(b) Water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water 

derived in association with oil and gas production and disposed of in a well, if the well used either to 

facilitate production or for disposal purposes is approved by authority of the State in which the well is 

located, and if the State determines that the injection or disposal will not result in the degradation of 

ground or surface water resources. 

Note: Radioactive materials covered by the Atomic Energy Act are those encompassed in its 

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definition of source, byproduct, or special nuclear materials. Examples of materials not 

covered include radium and accelerator-produced isotopes. See Train v. Colorado Public 

Interest Research Group, Inc., 426 U.S. 1 (1976).

POTW is defined at §403.3 of this chapter. 

Primary industry category means any industry category listed in the NRDC settlement agreement 

( Natural Resources Defense Council et al. v. Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 

1833 (D.D.C. 1979)); also listed in appendix A of part 122. 

Privately owned treatment works means any device or system which is (a) used to treat wastes from any 

facility whose operator is not the operator of the treatment works and (b) not a “POTW.” 

Process wastewater means any water which, during manufacturing or processing, comes into direct 

contact with or results from the production or use of any raw material, intermediate product, finished 

product, byproduct, or waste product. 

Proposed permit means a State NPDES “permit” prepared after the close of the public comment period 

(and, when applicable, any public hearing and administrative appeals) which is sent to EPA for review 

before final issuance by the State. A “proposed permit” is not a “draft permit.” 

Publicly owned treatment works is defined at 40 CFR 403.3. 

Recommencing discharger means a source which recommences discharge after terminating operations. 

Regional Administrator means the Regional Administrator of the appropriate Regional Office of the 

Environmental Protection Agency or the authorized representative of the Regional Administrator. 

Schedule of compliance means a schedule of remedial measures included in a “permit”, including an 

enforceable sequence of interim requirements (for example, actions, operations, or milestone events) 

leading to compliance with the CWA and regulations. 

Secondary industry category means any industry category which is not a “primary industry category.” 

Secretary means the Secretary of the Army, acting through the Chief of Engineers. 

Septage means the liquid and solid material pumped from a septic tank, cesspool, or similar domestic 

sewage treatment system, or a holding tank when the system is cleaned or maintained. 

Sewage from vessels means human body wastes and the wastes from toilets and other receptacles 

intended to receive or retain body wastes that are discharged from vessels and regulated under section 

312 of CWA, except that with respect to commercial vessels on the Great Lakes this term includes 

graywater. For the purposes of this definition, “graywater” means galley, bath, and shower water. 

Sewage Sludge means any solid, semi-solid, or liquid residue removed during the treatment of municipal 

waste water or domestic sewage. Sewage sludge includes, but is not limited to, solids removed during 

primary, secondary, or advanced waste water treatment, scum, septage, portable toilet pumpings, type 

III marine sanitation device pumpings (33 CFR part 159), and sewage sludge products. Sewage sludge 

does not include grit or screenings, or ash generated during the incineration of sewage sludge. 

Sewage sludge use or disposal practice means the collection, storage, treatment, transportation, 

processing, monitoring, use, or disposal of sewage sludge. 

Silvicultural point source is defined at §122.27. 

Site means the land or water area where any “facility or activity” is physically located or conducted, 

including adjacent land used in connection with the facility or activity. 

Sludge-only facility means any “treatment works treating domestic sewage” whose methods of sewage 

sludge use or disposal are subject to regulations promulgated pursuant to section 405(d) of the CWA 

and is required to obtain a permit under §122.1(b)(2). 

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Standards for sewage sludge use or disposal means the regulations promulgated pursuant to section 

405(d) of the CWA which govern minimum requirements for sludge quality, management practices, and 

monitoring and reporting applicable to sewage sludge or the use or disposal of sewage sludge by any 

person. 

State means any of the 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, 

the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust 

Territory of the Pacific Islands, or an Indian Tribe as defined in these regulations which meets the 

requirements of §123.31 of this chapter. 

State Director means the chief administrative officer of any State or interstate agency operating an 

“approved program,” or the delegated representative of the State Director. If responsibility is divided 

among two or more State or interstate agencies, “State Director” means the chief administrative officer 

of the State or interstate agency authorized to perform the particular procedure or function to which 

reference is made. 

State/EPA Agreement means an agreement between the Regional Administrator and the State which 

coordinates EPA and State activities, responsibilities and programs including those under the CWA 

programs. 

Storm water is defined at §122.26(b)(13). 

Storm water discharge associated with industrial activity is defined at §122.26(b)(14). 

Total dissolved solids means the total dissolved (filterable) solids as determined by use of the method 

specified in 40 CFR part 136. 

Toxic pollutant means any pollutant listed as toxic under section 307(a)(1) or, in the case of “sludge use 

or disposal practices,” any pollutant identified in regulations implementing section 405(d) of the CWA. 

Treatment works treating domestic sewage means a POTW or any other sewage sludge or waste water 

treatment devices or systems, regardless of ownership (including federal facilities), used in the storage, 

treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated for the 

disposal of sewage sludge. This definition does not include septic tanks or similar devices. For purposes 

of this definition, “domestic sewage” includes waste and waste water from humans or household 

operations that are discharged to or otherwise enter a treatment works. In States where there is no 

approved State sludge management program under section 405(f) of the CWA, the Regional 

Administrator may designate any person subject to the standards for sewage sludge use and disposal in 

40 CFR part 503 as a “treatment works treating domestic sewage,” where he or she finds that there is a 

potential for adverse effects on public health and the environment from poor sludge quality or poor 

sludge handling, use or disposal practices, or where he or she finds that such designation is necessary 

to ensure that such person is in compliance with 40 CFR part 503. 

TWTDS means “treatment works treating domestic sewage.” 

Upset is defined at §122.41(n). 

Variance means any mechanism or provision under section 301 or 316 of CWA or under 40 CFR part 

125, or in the applicable “effluent limitations guidelines” which allows modification to or waiver of the 

generally applicable effluent limitation requirements or time deadlines of CWA. This includes provisions 

which allow the establishment of alternative limitations based on fundamentally different factors or on 

sections 301(c), 301(g), 301(h), 301(i), or 316(a) of CWA. 

Waters of the United States or waters of the U.S. means: 

(a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate 

or foreign commerce, including all waters which are subject to the ebb and flow of the tide; 

(b) All interstate waters, including interstate “wetlands;” 

(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, 

sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, 

degradation, or destruction of which would affect or could affect interstate or foreign commerce including 

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any such waters: 

(1) Which are or could be used by interstate or foreign travelers for recreational or other purposes; 

(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or 

(3) Which are used or could be used for industrial purposes by industries in interstate commerce; 

(d) All impoundments of waters otherwise defined as waters of the United States under this definition; 

(e) Tributaries of waters identified in paragraphs (a) through (d) of this definition; 

(f) The territorial sea; and 

(g) “Wetlands” adjacent to waters (other than waters that are themselves wetlands) identified in 

paragraphs (a) through (f) of this definition. 

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of 

CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this 

definition) are not waters of the United States. This exclusion applies only to manmade bodies of water 

which neither were originally created in waters of the United States (such as disposal area in wetlands) 

nor resulted from the impoundment of waters of the United States. [See Note 1 of this section.] Waters 

of the United States do not include prior converted cropland. Notwithstanding the determination of an 

area's status as prior converted cropland by any other federal agency, for the purposes of the Clean 

Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. 

Wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency 

and duration sufficient to support, and that under normal circumstances do support, a prevalence of 

vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, 

marshes, bogs, and similar areas. 

Whole effluent toxicity means the aggregate toxic effect of an effluent measured directly by a toxicity 

test. 

Note: At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until 

further notice in §122.2, the last sentence, beginning “This exclusion applies . . .” in the 

definition of “Waters of the United States.” This revision continues that suspension.1

1 Editorial Note:The words “This revision” refer to the document published at 48 FR 14153, 

Apr. 1, 1983. 

(Clean Water Act (33 U.S.C. 1251 et seq. ), Safe Drinking Water Act (42 U.S.C. 300f et seq. ), Clean Air 

Act (42 U.S.C. 7401 et seq. ), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq. )) 

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 50 FR 6940, 6941, Feb. 19, 

1985; 54 FR 254, Jan. 4, 1989; 54 FR 18781, May 2, 1989; 54 FR 23895, June 2, 1989; 58 FR 45039, 

Aug. 25, 1993; 58 FR 67980, Dec. 22, 1993; 64 FR 42462, Aug. 4, 1999; 65 FR 30905, May 15, 2000] 

§ 122.3 Exclusions. 

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The following discharges do not require NPDES permits: 

(a) Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, 

shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. 

This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; 

nor to other discharges when the vessel is operating in a capacity other than as a means of 

transportation such as when used as an energy or mining facility, a storage facility or a seafood 

processing facility, or when secured to a storage facility or a seafood processing facility, or when 

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secured to the bed of the ocean, contiguous zone or waters of the United States for the purpose of 

mineral or oil exploration or development. 

(b) Discharges of dredged or fill material into waters of the United States which are regulated under 

section 404 of CWA. 

(c) The introduction of sewage, industrial wastes or other pollutants into publicly owned treatment works 

by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not 

relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to 

waters of the United States are eliminated. (See also §122.47(b)). This exclusion does not apply to the 

introduction of pollutants to privately owned treatment works or to other discharges through pipes, 

sewers, or other conveyances owned by a State, municipality, or other party not leading to treatment 

works. 

(d) Any discharge in compliance with the instructions of an On-Scene Coordinator pursuant to 40 CFR 

part 300 (The National Oil and Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) 

(Pollution by Oil and Hazardous Substances). 

(e) Any introduction of pollutants from non point-source agricultural and silvicultural activities, including 

storm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not 

discharges from concentrated animal feeding operations as defined in §122.23, discharges from 

concentrated aquatic animal production facilities as defined in §122.24, discharges to aquaculture 

projects as defined in §122.25, and discharges from silvicultural point sources as defined in §122.27. 

(f) Return flows from irrigated agriculture. 

(g) Discharges into a privately owned treatment works, except as the Director may otherwise require 

under §122.44(m). 

(h) The application of pesticides consistent with all relevant requirements under FIFRA (i.e., those 

relevant to protecting water quality), in the following two circumstances: 

(1) The application of pesticides directly to waters of the United States in order to control pests. 

Examples of such applications include applications to control mosquito larvae, aquatic weeds, or other 

pests that are present in waters of the United States. 

(2) The application of pesticides to control pests that are present over waters of the United States, 

including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of 

the United States in order to target the pests effectively; for example, when insecticides are aerially 

applied to a forest canopy where waters of the United States may be present below the canopy or when 

pesticides are applied over or near water for control of adult mosquitoes or other pests. 

(i) Discharges from a water transfer. Water transfer means an activity that conveys or connects waters of 

the United States without subjecting the transferred water to intervening industrial, municipal, or 

commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity 

itself to the water being transferred. 

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 254, 258, Jan. 4, 1989; 71 FR 68492, Nov. 27, 2006; 

73 FR 33708, June 13, 2008] 

§ 122.4 Prohibitions (applicable to State NPDES programs, see §123.25). 

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No permit may be issued: 

(a) When the conditions of the permit do not provide for compliance with the applicable requirements of 

CWA, or regulations promulgated under CWA; 

(b) When the applicant is required to obtain a State or other appropriate certification under section 401 

of CWA and §124.53 and that certification has not been obtained or waived; 

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(c) By the State Director where the Regional Administrator has objected to issuance of the permit under 

§123.44; 

(d) When the imposition of conditions cannot ensure compliance with the applicable water quality 

requirements of all affected States; 

(e) When, in the judgment of the Secretary, anchorage and navigation in or on any of the waters of the 

United States would be substantially impaired by the discharge; 

(f) For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive 

waste; 

(g) For any discharge inconsistent with a plan or plan amendment approved under section 208(b) of 

CWA; 

(h) For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the 

following circumstances: 

(1) Before the promulgation of guidelines under section 403(c) of CWA (for determining degradation of 

the waters of the territorial seas, the contiguous zone, and the oceans) unless the Director determines 

permit issuance to be in the public interest; or 

(2) After promulgation of guidelines under section 403(c) of CWA, when insufficient information exists to 

make a reasonable judgment whether the discharge complies with them. 

(i) To a new source or a new discharger, if the discharge from its construction or operation will cause or 

contribute to the violation of water quality standards. The owner or operator of a new source or new 

discharger proposing to discharge into a water segment which does not meet applicable water quality 

standards or is not expected to meet those standards even after the application of the effluent limitations 

required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency 

has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before 

the close of the public comment period, that: 

(1) There are sufficient remaining pollutant load allocations to allow for the discharge; and 

(2) The existing dischargers into that segment are subject to compliance schedules designed to bring 

the segment into compliance with applicable water quality standards. The Director may waive the 

submission of information by the new source or new discharger required by paragraph (i) of this section 

if the Director determines that the Director already has adequate information to evaluate the request. An 

explanation of the development of limitations to meet the criteria of this paragraph (i)(2) is to be included 

in the fact sheet to the permit under §124.56(b)(1) of this chapter. 

[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985; 65 FR 30905, May 15, 2000] 

§ 122.5 Effect of a permit. 

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(a) Applicable to State programs, see §123.25. (1) Except for any toxic effluent standards and 

prohibitions imposed under section 307 of the CWA and “standards for sewage sludge use or disposal” 

under 405(d) of the CWA, compliance with a permit during its term constitutes compliance, for purposes 

of enforcement, with sections 301, 302, 306, 307, 318, 403, and 405 (a)–(b) of CWA. However, a permit 

may be modified, revoked and reissued, or terminated during its term for cause as set forth in §§122.62 

and 122.64. 

(2) Compliance with a permit condition which implements a particular “standard for sewage sludge use 

or disposal” shall be an affirmative defense in any enforcement action brought for a violation of that 

“standard for sewage sludge use or disposal” pursuant to sections 405(e) and 309 of the CWA. 

(b) Applicable to State programs, See §123.25. The issuance of a permit does not convey any property 

rights of any sort, or any exclusive privilege. 

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(c) The issuance of a permit does not authorize any injury to persons or property or invasion of other 

private rights, or any infringement of State or local law or regulations. 

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18782, May 2, 1989] 

§ 122.6 Continuation of expiring permits. 

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(a) EPA permits. When EPA is the permit-issuing authority, the conditions of an expired permit continue 

in force under 5 U.S.C. 558(c) until the effective date of a new permit (see §124.15) if: 

(1) The permittee has submitted a timely application under §122.21 which is a complete (under §122.21

(e)) application for a new permit; and 

(2) The Regional Administrator, through no fault of the permittee does not issue a new permit with an 

effective date under §124.15 on or before the expiration date of the previous permit (for example, when 

issuance is impracticable due to time or resource constraints). 

(b) Effect. Permits continued under this section remain fully effective and enforceable. 

(c) Enforcement. When the permittee is not in compliance with the conditions of the expiring or expired 

permit the Regional Administrator may choose to do any or all of the following: 

(1) Initiate enforcement action based upon the permit which has been continued; 

(2) Issue a notice of intent to deny the new permit under §124.6. If the permit is denied, the owner or 

operator would then be required to cease the activities authorized by the continued permit or be subject 

to enforcement action for operating without a permit; 

(3) Issue a new permit under part 124 with appropriate conditions; or 

(4) Take other actions authorized by these regulations. 

(d) State continuation. (1) An EPA-issued permit does not continue in force beyond its expiration date 

under Federal law if at that time a State is the permitting authority. States authorized to administer the 

NPDES program may continue either EPA or State-issued permits until the effective date of the new 

permits, if State law allows. Otherwise, the facility or activity is operating without a permit from the time 

of expiration of the old permit to the effective date of the State-issued new permit. 

[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985] 

§ 122.7 Confidentiality of information. 

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(a) In accordance with 40 CFR part 2, any information submitted to EPA pursuant to these regulations 

may be claimed as confidential by the submitter. Any such claim must be asserted at the time of 

submission in the manner prescribed on the application form or instructions or, in the case of other 

submissions, by stamping the words “confidential business information” on each page containing such 

information. If no claim is made at the time of submission, EPA may make the information available to 

the public without further notice. If a claim is asserted, the information will be treated in accordance with 

the procedures in 40 CFR part 2 (Public Information). 

(b) Applicable to State programs, see §123.25. Claims of confidentiality for the following information will 

be denied: 

(1) The name and address of any permit applicant or permittee; 

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(2) Permit applications, permits, and effluent data. 

(c) Applicable to State programs, see §123.25. Information required by NPDES application forms 

provided by the Director under §122.21 may not be claimed confidential. This includes information 

submitted on the forms themselves and any attachments used to supply information required by the 

forms. 

Subpart B—Permit Application and Special NPDES Program Requirements 

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§ 122.21 Application for a permit (applicable to State programs, see §123.25). 

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(a) Duty to apply. (1) Any person who discharges or proposes to discharge pollutants or who owns or 

operates a “sludge-only facility” whose sewage sludge use or disposal practice is regulated by part 503 

of this chapter, and who does not have an effective permit, except persons covered by general permits 

under §122.28, excluded under §122.3, or a user of a privately owned treatment works unless the 

Director requires otherwise under §122.44(m), must submit a complete application to the Director in 

accordance with this section and part 124 of this chapter. The requirements for concentrated animal 

feeding operations are described in §122.23(d). 

(2) Application Forms: (i) All applicants for EPA-issued permits must submit applications on EPA permit 

application forms. More than one application form may be required from a facility depending on the 

number and types of discharges or outfalls found there. Application forms may be obtained by contacting 

the EPA water resource center at (202) 260–7786 or Water Resource Center, U.S. EPA, Mail Code 

4100, 1200 Pennsylvania Ave., NW., Washington, DC 20460 or at the EPA Internet site 

www.epa.gov/owm/npdes.htm. Applications for EPA-issued permits must be submitted as follows: 

(A) All applicants, other than POTWs and TWTDS, must submit Form 1. 

(B) Applicants for new and existing POTWs must submit the information contained in paragraph (j) of 

this section using Form 2A or other form provided by the director. 

(C) Applicants for concentrated animal feeding operations or aquatic animal production facilities must 

submit Form 2B. 

(D) Applicants for existing industrial facilities (including manufacturing facilities, commercial facilities, 

mining activities, and silvicultural activities), must submit Form 2C. 

(E) Applicants for new industrial facilities that discharge process wastewater must submit Form 2D. 

(F) Applicants for new and existing industrial facilities that discharge only nonprocess wastewater must 

submit Form 2E. 

(G) Applicants for new and existing facilities whose discharge is composed entirely of storm water 

associated with industrial activity must submit Form 2F, unless exempted by §122.26(c)(1)(ii). If the 

discharge is composed of storm water and non-storm water, the applicant must also submit, Forms 2C, 

2D, and/or 2E, as appropriate (in addition to Form 2F). 

(H) Applicants for new and existing TWTDS, subject to paragraph (c)(2)(i) of this section must submit the 

application information required by paragraph (q) of this section, using Form 2S or other form provided 

by the director. 

(ii) The application information required by paragraph (a)(2)(i) of this section may be electronically 

submitted if such method of submittal is approved by EPA or the Director. 

(iii) Applicants can obtain copies of these forms by contacting the Water Management Divisions (or 

equivalent division which contains the NPDES permitting function) of the EPA Regional Offices. The 

Regional Offices' addresses can be found at §1.7 of this chapter. 

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(iv) Applicants for State-issued permits must use State forms which must require at a minimum the 

information listed in the appropriate paragraphs of this section. 

(b) Who applies? When a facility or activity is owned by one person but is operated by another person, it 

is the operator's duty to obtain a permit. 

(c) Time to apply. (1) Any person proposing a new discharge, shall submit an application at least 180 

days before the date on which the discharge is to commence, unless permission for a later date has 

been granted by the Director. Facilities proposing a new discharge of storm water associated with 

industrial activity shall submit an application 180 days before that facility commences industrial activity 

which may result in a discharge of storm water associated with that industrial activity. Facilities 

described under §122.26(b)(14)(x) or (b)(15)(i) shall submit applications at least 90 days before the date 

on which construction is to commence. Different submittal dates may be required under the terms of 

applicable general permits. Persons proposing a new discharge are encouraged to submit their 

applications well in advance of the 90 or 180 day requirements to avoid delay. See also paragraph (k) of 

this section and §122.26(c)(1)(i)(G) and (c)(1)(ii). 

(2) Permits under section 405(f) of CWA. All TWTDS whose sewage sludge use or disposal practices 

are regulated by part 503 of this chapter must submit permit applications according to the applicable 

schedule in paragraphs (c)(2)(i) or (ii) of this section. 

(i) A TWTDS with a currently effective NPDES permit must submit a permit application at the time of its 

next NPDES permit renewal application. Such information must be submitted in accordance with 

paragraph (d) of this section. 

(ii) Any other TWTDS not addressed under paragraph (c)(2)(i) of this section must submit the 

information listed in paragraphs (c)(2)(ii)(A) through (E) of this section to the Director within 1 year after 

publication of a standard applicable to its sewage sludge use or disposal practice(s), using Form 2S or 

another form provided by the Director. The Director will determine when such TWTDS must submit a full 

permit application. 

(A) The TWTDS's name, mailing address, location, and status as federal, State, private, public or other 

entity; 

(B) The applicant's name, address, telephone number, and ownership status; 

(C) A description of the sewage sludge use or disposal practices. Unless the sewage sludge meets the 

requirements of paragraph (q)(8)(iv) of this section, the description must include the name and address 

of any facility where sewage sludge is sent for treatment or disposal, and the location of any land 

application sites; 

(D) Annual amount of sewage sludge generated, treated, used or disposed (estimated dry weight basis); 

and 

(E) The most recent data the TWTDS may have on the quality of the sewage sludge. 

(iii) Notwithstanding paragraphs (c)(2)(i) or (ii) of this section, the Director may require permit 

applications from any TWTDS at any time if the Director determines that a permit is necessary to protect 

public health and the environment from any potential adverse effects that may occur from toxic 

pollutants in sewage sludge. 

(iv) Any TWTDS that commences operations after promulgation of an applicable “standard for sewage 

sludge use or disposal” must submit an application to the Director at least 180 days prior to the date 

proposed for commencing operations. 

(d) Duty to reapply. (1) Any POTW with a currently effective permit shall submit a new application at 

least 180 days before the expiration date of the existing permit, unless permission for a later date has 

been granted by the Director. (The Director shall not grant permission for applications to be submitted 

later than the expiration date of the existing permit.) 

(2) All other permittees with currently effective permits shall submit a new application 180 days before 

the existing permit expires, except that: 

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(i) The Regional Administrator may grant permission to submit an application later than the deadline for 

submission otherwise applicable, but no later than the permit expiration date; and 

(3) [Reserved] 

(e) Completeness. (1) The Director shall not issue a permit before receiving a complete application for a 

permit except for NPDES general permits. An application for a permit is complete when the Director 

receives an application form and any supplemental information which are completed to his or her 

satisfaction. The completeness of any application for a permit shall be judged independently of the 

status of any other permit application or permit for the same facility or activity. For EPA administered 

NPDES programs, an application which is reviewed under §124.3 of this chapter is complete when the 

Director receives either a complete application or the information listed in a notice of deficiency. 

(2) A permit application shall not be considered complete if a permitting authority has waived application 

requirements under paragraphs (j) or (q) of this section and EPA has disapproved the waiver application. 

If a waiver request has been submitted to EPA more than 210 days prior to permit expiration and EPA 

has not disapproved the waiver application 181 days prior to permit expiration, the permit application 

lacking the information subject to the waiver application shall be considered complete. 

(f) Information requirements. All applicants for NPDES permits, other than POTWs and other TWTDS, 

must provide the following information to the Director, using the application form provided by the 

Director. Additional information required of applicants is set forth in paragraphs (g) through (k) of this 

section. 

(1) The activities conducted by the applicant which require it to obtain an NPDES permit. 

(2) Name, mailing address, and location of the facility for which the application is submitted. 

(3) Up to four SIC codes which best reflect the principal products or services provided by the facility. 

(4) The operator's name, address, telephone number, ownership status, and status as Federal, State, 

private, public, or other entity. 

(5) Whether the facility is located on Indian lands. 

(6) A listing of all permits or construction approvals received or applied for under any of the following 

programs: 

(i) Hazardous Waste Management program under RCRA. 

(ii) UIC program under SDWA. 

(iii) NPDES program under CWA. 

(iv) Prevention of Significant Deterioration (PSD) program under the Clean Air Act. 

(v) Nonattainment program under the Clean Air Act. 

(vi) National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under 

the Clean Air Act. 

(vii) Ocean dumping permits under the Marine Protection Research and Sanctuaries Act. 

(viii) Dredge or fill permits under section 404 of CWA. 

(ix) Other relevant environmental permits, including State permits. 

(7) A topographic map (or other map if a topographic map is unavailable) extending one mile beyond the 

property boundaries of the source, depicting the facility and each of its intake and discharge structures; 

each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the 

facility are injected underground; and those wells, springs, other surface water bodies, and drinking 

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water wells listed in public records or otherwise known to the applicant in the map area. 

(8) A brief description of the nature of the business. 

(g) Application requirements for existing manufacturing, commercial, mining, and silvicultural 

dischargers. Existing manufacturing, commercial mining, and silvicultural dischargers applying for 

NPDES permits, except for those facilities subject to the requirements of §122.21(h), shall provide the 

following information to the Director, using application forms provided by the Director. 

(1) Outfall location. The latitude and longitude to the nearest 15 seconds and the name of the receiving 

water. 

(2) Line drawing. A line drawing of the water flow through the facility with a water balance, showing 

operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or 

production areas may be indicated as a single unit, labeled to correspond to the more detailed 

identification under paragraph (g)(3) of this section. The water balance must show approximate average 

flows at intake and discharge points and between units, including treatment units. If a water balance 

cannot be determined (for example, for certain mining activities), the applicant may provide instead a 

pictorial description of the nature and amount of any sources of water and any collection and treatment 

measures. 

(3) Average flows and treatment. A narrative identification of each type of process, operation, or 

production area which contributes wastewater to the effluent for each outfall, including process 

wastewater, cooling water, and stormwater runoff; the average flow which each process contributes; and 

a description of the treatment the wastewater receives, including the ultimate disposal of any solid or 

fluid wastes other than by discharge. Processes, operations, or production areas may be described in 

general terms (for example, “dye-making reactor”, “distillation tower”). For a privately owned treatment 

works, this information shall include the identity of each user of the treatment works. The average flow of 

point sources composed of storm water may be estimated. The basis for the rainfall event and the 

method of estimation must be indicated. 

(4) Intermittent flows. If any of the discharges described in paragraph (g)(3) of this section are 

intermittent or seasonal, a description of the frequency, duration and flow rate of each discharge 

occurrence (except for stormwater runoff, spillage or leaks). 

(5) Maximum production. If an effluent guideline promulgated under section 304 of CWA applies to the 

applicant and is expressed in terms of production (or other measure of operation), a reasonable 

measure of the applicant's actual production reported in the units used in the applicable effluent 

guideline. The reported measure must reflect the actual production of the facility as required by §122.45

(b)(2). 

(6) Improvements. If the applicant is subject to any present requirements or compliance schedules for 

construction, upgrading or operation of waste treatment equipment, an identification of the abatement 

requirement, a description of the abatement project, and a listing of the required and projected final 

compliance dates. 

(7) Effluent characteristics. (i) Information on the discharge of pollutants specified in this paragraph (g)

(7) (except information on storm water discharges which is to be provided as specified in §122.26). 

When “quantitative data” for a pollutant are required, the applicant must collect a sample of effluent and 

analyze it for the pollutant in accordance with analytical methods approved under Part 136 of this 

chapter unless use of another method is required for the pollutant under 40 CFR subchapters N or O. 

When no analytical method is approved under Part 136 or required under subchapters N or O, the 

applicant may use any suitable method but must provide a description of the method. When an applicant 

has two or more outfalls with substantially identical effluents, the Director may allow the applicant to test 

only one outfall and report that quantitative data as applying to the substantially identical outfall. The 

requirements in paragraphs (g)(7)(vi) and (vii) of this section state that an applicant must provide 

quantitative data for certain pollutants known or believed to be present do not apply to pollutants present 

in a discharge solely as the result of their presence in intake water; however, an applicant must report 

such pollutants as present. When paragraph (g)(7) of this section requires analysis of pH, temperature, 

cyanide, total phenols, residual chlorine, oil and grease, fecal coliform (including E. coli ), and 

Enterococci (previously known as fecal streptococcus at §122.26 (d)(2)(iii)(A)(3)), or volatile organics, 

grab samples must be collected for those pollutants. For all other pollutants, a 24-hour composite 

sample, using a minimum of four (4) grab samples, must be used unless specified otherwise at 40 CFR 

Part 136. However, a minimum of one grab sample may be taken for effluents from holding ponds or 

other impoundments with a retention period greater than 24 hours. In addition, for discharges other than 

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storm water discharges, the Director may waive composite sampling for any outfall for which the 

applicant demonstrates that the use of an automatic sampler is infeasible and that the minimum of four 

(4) grab samples will be a representative sample of the effluent being discharged. Results of analyses of 

individual grab samples for any parameter may be averaged to obtain the daily average. Grab samples 

that are not required to be analyzed immediately (see Table II at 40 CFR 136.3 (e)) may be composited 

in the laboratory, provided that container, preservation, and holding time requirements are met (see 

Table II at 40 CFR 136.3 (e)) and that sample integrity is not compromised by compositing. 

(ii) Storm water discharges. For storm water discharges, all samples shall be collected from the 

discharge resulting from a storm event that is greater than 0.1 inch and at least 72 hours from the 

previously measurable (greater than 0.1 inch rainfall) storm event. Where feasible, the variance in the 

duration of the event and the total rainfall of the event should not exceed 50 percent from the average or 

median rainfall event in that area. For all applicants, a flow-weighted composite shall be taken for either 

the entire discharge or for the first three hours of the discharge. The flow-weighted composite sample for 

a storm water discharge may be taken with a continuous sampler or as a combination of a minimum of 

three sample aliquots taken in each hour of discharge for the entire discharge or for the first three hours 

of the discharge, with each aliquot being separated by a minimum period of fifteen minutes (applicants 

submitting permit applications for storm water discharges under §122.26(d) may collect flow-weighted 

composite samples using different protocols with respect to the time duration between the collection of 

sample aliquots, subject to the approval of the Director). However, a minimum of one grab sample may 

be taken for storm water discharges from holding ponds or other impoundments with a retention period 

greater than 24 hours. For a flow-weighted composite sample, only one analysis of the composite of 

aliquots is required. For storm water discharge samples taken from discharges associated with industrial 

activities, quantitative data must be reported for the grab sample taken during the first thirty minutes (or 

as soon thereafter as practicable) of the discharge for all pollutants specified in §122.26(c)(1). For all 

storm water permit applicants taking flow-weighted composites, quantitative data must be reported for all 

pollutants specified in §122.26 except pH, temperature, cyanide, total phenols, residual chlorine, oil and 

grease, fecal coliform, and fecal streptococcus. The Director may allow or establish appropriate sitespecific sampling procedures or requirements, including sampling locations, the season in which the 

sampling takes place, the minimum duration between the previous measurable storm event and the 

storm event sampled, the minimum or maximum level of precipitation required for an appropriate storm 

event, the form of precipitation sampled (snow melt or rain fall), protocols for collecting samples under 

part 136 of this chapter, and additional time for submitting data on a case-by-case basis. An applicant is 

expected to “know or have reason to believe” that a pollutant is present in an effluent based on an 

evaluation of the expected use, production, or storage of the pollutant, or on any previous analyses for 

the pollutant. (For example, any pesticide manufactured by a facility may be expected to be present in 

contaminated storm water runoff from the facility.) 

(iii) Reporting requirements. Every applicant must report quantitative data for every outfall for the 

following pollutants: 

Biochemical Oxygen Demand (BOD5) 

Chemical Oxygen Demand 

Total Organic Carbon 

Total Suspended Solids 

Ammonia (as N) 

Temperature (both winter and summer) 

pH 

(iv) The Director may waive the reporting requirements for individual point sources or for a particular 

industry category for one or more of the pollutants listed in paragraph (g)(7)(iii) of this section if the 

applicant has demonstrated that such a waiver is appropriate because information adequate to support 

issuance of a permit can be obtained with less stringent requirements. 

(v) Each applicant with processes in one or more primary industry category (see appendix A of this part) 

contributing to a discharge must report quantitative data for the following pollutants in each outfall 

containing process wastewater: 

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(A) The organic toxic pollutants in the fractions designated in table I of appendix D of this part for the 

applicant's industrial category or categories unless the applicant qualifies as a small business under 

paragraph (g)(8) of this section. Table II of appendix D of this part lists the organic toxic pollutants in 

each fraction. The fractions result from the sample preparation required by the analytical procedure 

which uses gas chromatography/mass spectrometry. A determination that an applicant falls within a 

particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the 

applicant's inclusion in that category for any other purposes. See Notes 2, 3, and 4 of this section. 

(B) The pollutants listed in table III of appendix D of this part (the toxic metals, cyanide, and total 

phenols). 

(vi)(A) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants 

in table IV of appendix D of this part (certain conventional and nonconventional pollutants) is discharged 

from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its 

express terms, indirectly limits the pollutant through limitations on an indicator, the applicant must report 

quantitative data. For every pollutant discharged which is not so limited in an effluent limitations 

guideline, the applicant must either report quantitative data or briefly describe the reasons the pollutant 

is expected to be discharged. 

(B) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants 

listed in table II or table III of appendix D of this part (the toxic pollutants and total phenols) for which 

quantitative data are not otherwise required under paragraph (g)(7)(v) of this section are discharged 

from each outfall. For every pollutant expected to be discharged in concentrations of 10 ppb or greater 

the applicant must report quantitative data. For acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 

6 dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 

100 ppb or greater the applicant must report quantitative data. For every pollutant expected to be 

discharged in concentrations less than 10 ppb, or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, 

and 2-methyl-4, 6 dinitrophenol, in concentrations less than 100 ppb, the applicant must either submit 

quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant 

qualifying as a small business under paragraph (g)(8) of this section is not required to analyze for 

pollutants listed in table II of appendix D of this part (the organic toxic pollutants). 

(vii) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in 

table V of appendix D of this part (certain hazardous substances and asbestos) are discharged from 

each outfall. For every pollutant expected to be discharged, the applicant must briefly describe the 

reasons the pollutant is expected to be discharged, and report any quantitative data it has for any 

pollutant. 

(viii) Each applicant must report qualitative data, generated using a screening procedure not calibrated 

with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it: 

(A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-T); 2-(2,4,5-trichlorophenoxy) 

propanoic acid (Silvex, 2,4,5,-TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,Odimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or 

hexachlorophene (HCP); or 

(B) Knows or has reason to believe that TCDD is or may be present in an effluent. 

(8) Small business exemption . An application which qualifies as a small business under one of the 

following criteria is exempt from the requirements in paragraph (g)(7)(v)(A) or (g)(7)(vi)(A) of this section 

to submit quantitative data for the pollutants listed in table II of appendix D of this part (the organic toxic 

pollutants): 

(i) For coal mines, a probable total annual production of less than 100,000 tons per year. 

(ii) For all other applicants, gross total annual sales averaging less than $100,000 per year (in second 

quarter 1980 dollars). 

(9) Used or manufactured toxics. A listing of any toxic pollutant which the applicant currently uses or 

manufactures as an intermediate or final product or byproduct. The Director may waive or modify this 

requirement for any applicant if the applicant demonstrates that it would be unduly burdensome to 

identify each toxic pollutant and the Director has adequate information to issue the permit. 

(10) [Reserved] 

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(11) Biological toxicity tests. An identification of any biological toxicity tests which the applicant knows or 

has reason to believe have been made within the last 3 years on any of the applicant's discharges or on 

a receiving water in relation to a discharge. 

(12) Contract analyses. If a contract laboratory or consulting firm performed any of the analyses required 

by paragraph (g)(7) of this section, the identity of each laboratory or firm and the analyses performed. 

(13) Additional information. In addition to the information reported on the application form, applicants 

shall provide to the Director, at his or her request, such other information as the Director may reasonably 

require to assess the discharges of the facility and to determine whether to issue an NPDES permit. The 

additional information may include additional quantitative data and bioassays to assess the relative 

toxicity of discharges to aquatic life and requirements to determine the cause of the toxicity. 

(h) Application requirements for manufacturing, commercial, mining and silvicultural facilities which 

discharge only non-process wastewater. Except for stormwater discharges, all manufacturing, 

commercial, mining and silvicultural dischargers applying for NPDES permits which discharge only nonprocess wastewater not regulated by an effluent limitations guideline or new source performance 

standard shall provide the following information to the Director, using application forms provided by the 

Director: 

(1) Outfall location. Outfall number, latitude and longitude to the nearest 15 seconds, and the name of 

the receiving water. 

(2) Discharge date (for new dischargers). Date of expected commencement of discharge. 

(3) Type of waste. An identification of the general type of waste discharged, or expected to be 

discharged upon commencement of operations, including sanitary wastes, restaurant or cafeteria 

wastes, or noncontact cooling water. An identification of cooling water additives (if any) that are used or 

expected to be used upon commencement of operations, along with their composition if existing 

composition is available. 

(4) Effluent characteristics. (i) Quantitative data for the pollutants or parameters listed below, unless 

testing is waived by the Director. The quantitative data may be data collected over the past 365 days, if 

they remain representative of current operations, and must include maximum daily value, average daily 

value, and number of measurements taken. The applicant must collect and analyze samples in 

accordance with 40 CFR Part 136. When analysis of pH, temperature, residual chlorine, oil and grease, 

or fecal coliform (including E. coli ), and Enterococci (previously known as fecal streptococcus) and 

volatile organics is required in paragraphs (h)(4)(i)(A) through (K) of this section, grab samples must be 

collected for those pollutants. For all other pollutants, a 24-hour composite sample, using a minimum of 

four (4) grab samples, must be used unless specified otherwise at 40 CFR Part 136. For a composite 

sample, only one analysis of the composite of aliquots is required. New dischargers must include 

estimates for the pollutants or parameters listed below instead of actual sampling data, along with the 

source of each estimate. All levels must be reported or estimated as concentration and as total mass, 

except for flow, pH, and temperature. 

(A) Biochemical Oxygen Demand (BOD5).

(B) Total Suspended Solids (TSS). 

(C) Fecal Coliform (if believed present or if sanitary waste is or will be discharged). 

(D) Total Residual Chlorine (if chlorine is used). 

(E) Oil and Grease. 

(F) Chemical Oxygen Demand (COD) (if non-contact cooling water is or will be discharged). 

(G) Total Organic Carbon (TOC) (if non-contact cooling water is or will be discharged). 

(H) Ammonia (as N). 

(I) Discharge Flow. 

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(J) pH. 

(K) Temperature (Winter and Summer). 

(ii) The Director may waive the testing and reporting requirements for any of the pollutants or flow listed 

in paragraph (h)(4)(i) of this section if the applicant submits a request for such a waiver before or with his 

application which demonstrates that information adequate to support issuance of a permit can be 

obtained through less stringent requirements. 

(iii) If the applicant is a new discharger, he must complete and submit Item IV of Form 2e (see §122.21

(h)(4)) by providing quantitative data in accordance with that section no later than two years after 

commencement of discharge. However, the applicant need not complete those portions of Item IV 

requiring tests which he has already performed and reported under the discharge monitoring 

requirements of his NPDES permit. 

(iv) The requirements of parts i and iii of this section that an applicant must provide quantitative data or 

estimates of certain pollutants do not apply to pollutants present in a discharge solely as a result of their 

presence in intake water. However, an applicant must report such pollutants as present. Net credit may 

be provided for the presence of pollutants in intake water if the requirements of §122.45(g) are met. 

(5) Flow. A description of the frequency of flow and duration of any seasonal or intermittent discharge 

(except for stormwater runoff, leaks, or spills). 

(6) Treatment system. A brief description of any system used or to be used. 

(7) Optional information. Any additional information the applicant wishes to be considered, such as 

influent data for the purpose of obtaining “net” credits pursuant to §122.45(g). 

(8) Certification. Signature of certifying official under §122.22. 

(i) Application requirements for new and existing concentrated animal feeding operations and aquatic 

animal production facilities. New and existing concentrated animal feeding operations (defined in 

§122.23) and concentrated aquatic animal production facilities (defined in §122.24) shall provide the 

following information to the Director, using the application form provided by the Director: 

(1) For concentrated animal feeding operations: 

(i) The name of the owner or operator; 

(ii) The facility location and mailing addresses; 

(iii) Latitude and longitude of the production area (entrance to production area); 

(iv) A topographic map of the geographic area in which the CAFO is located showing the specific 

location of the production area, in lieu of the requirements of paragraph (f)(7) of this section; 

(v) Specific information about the number and type of animals, whether in open confinement or housed 

under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 

pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other); 

(vi) The type of containment and storage (anaerobic lagoon, roofed storage shed, storage ponds, 

underfloor pits, above ground storage tanks, below ground storage tanks, concrete pad, impervious soil 

pad, other) and total capacity for manure, litter, and process wastewater storage(tons/gallons); 

(vii) The total number of acres under control of the applicant available for land application of manure, 

litter, or process wastewater; 

(viii) Estimated amounts of manure, litter, and process wastewater generated per year (tons/gallons); 

(ix) Estimated amounts of manure, litter and process wastewater transferred to other persons per year 

(tons/gallons); and 

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(x) A nutrient management plan that at a minimum satisfies the requirements specified in §122.42(e), 

including, for all CAFOs subject to 40 CFR part 412, subpart C or subpart D, the requirements of 40 

CFR 412.4(c), as applicable. 

(2) For concentrated aquatic animal production facilities: 

(i) The maximum daily and average monthly flow from each outfall. 

(ii) The number of ponds, raceways, and similar structures. 

(iii) The name of the receiving water and the source of intake water. 

(iv) For each species of aquatic animals, the total yearly and maximum harvestable weight. 

(v) The calendar month of maximum feeding and the total mass of food fed during that month. 

(j) Application requirements for new and existing POTWs. Unless otherwise indicated, all POTWs and 

other dischargers designated by the Director must provide, at a minimum, the information in this 

paragraph to the Director, using Form 2A or another application form provided by the Director. Permit 

applicants must submit all information available at the time of permit application. The information may be 

provided by referencing information previously submitted to the Director. The Director may waive any 

requirement of this paragraph if he or she has access to substantially identical information. The Director 

may also waive any requirement of this paragraph that is not of material concern for a specific permit, if 

approved by the Regional Administrator. The waiver request to the Regional Administrator must include 

the State's justification for the waiver. A Regional Administrator's disapproval of a State's proposed 

waiver does not constitute final Agency action, but does provide notice to the State and permit applicant

(s) that EPA may object to any State-issued permit issued in the absence of the required information. 

(1) Basic application information. All applicants must provide the following information: 

(i) Facility information. Name, mailing address, and location of the facility for which the application is 

submitted; 

(ii) Applicant information. Name, mailing address, and telephone number of the applicant, and indication 

as to whether the applicant is the facility's owner, operator, or both; 

(iii) Existing environmental permits. Identification of all environmental permits or construction approvals 

received or applied for (including dates) under any of the following programs: 

(A) Hazardous Waste Management program under the Resource Conservation and Recovery Act 

(RCRA), Subpart C; 

(B) Underground Injection Control program under the Safe Drinking Water Act (SDWA); 

(C) NPDES program under Clean Water Act (CWA); 

(D) Prevention of Significant Deterioration (PSD) program under the Clean Air Act; 

(E) Nonattainment program under the Clean Air Act; 

(F) National Emission Standards for Hazardous Air Pollutants (NESHAPS) preconstruction approval 

under the Clean Air Act; 

(G) Ocean dumping permits under the Marine Protection Research and Sanctuaries Act; 

(H) Dredge or fill permits under section 404 of the CWA; and 

(I) Other relevant environmental permits, including State permits; 

(iv) Population. The name and population of each municipal entity served by the facility, including 

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unincorporated connector districts. Indicate whether each municipal entity owns or maintains the 

collection system and whether the collection system is separate sanitary or combined storm and 

sanitary, if known; 

(v) Indian country. Information concerning whether the facility is located in Indian country and whether 

the facility discharges to a receiving stream that flows through Indian country; 

(vi) Flow rate. The facility's design flow rate (the wastewater flow rate the plant was built to handle), 

annual average daily flow rate, and maximum daily flow rate for each of the previous 3 years; 

(vii) Collection system. Identification of type(s) of collection system(s) used by the treatment works (i.e., 

separate sanitary sewers or combined storm and sanitary sewers) and an estimate of the percent of 

sewer line that each type comprises; and 

(viii) Outfalls and other discharge or disposal methods. The following information for outfalls to waters of 

the United States and other discharge or disposal methods: 

(A) For effluent discharges to waters of the United States, the total number and types of outfalls (e.g, 

treated effluent, combined sewer overflows, bypasses, constructed emergency overflows); 

(B) For wastewater discharged to surface impoundments: 

( 1 ) The location of each surface impoundment; 

( 2 ) The average daily volume discharged to each surface impoundment; and 

( 3 ) Whether the discharge is continuous or intermittent; 

(C) For wastewater applied to the land: 

( 1 ) The location of each land application site; 

( 2 ) The size of each land application site, in acres; 

( 3 ) The average daily volume applied to each land application site, in gallons per day; and 

( 4 ) Whether land application is continuous or intermittent; 

(D) For effluent sent to another facility for treatment prior to discharge: 

( 1 ) The means by which the effluent is transported; 

( 2 ) The name, mailing address, contact person, and phone number of the organization transporting the 

discharge, if the transport is provided by a party other than the applicant; 

( 3 ) The name, mailing address, contact person, phone number, and NPDES permit number (if any) of 

the receiving facility; and 

( 4 ) The average daily flow rate from this facility into the receiving facility, in millions of gallons per day; 

and 

(E) For wastewater disposed of in a manner not included in paragraphs (j)(1)(viii)(A) through (D) of this 

section (e.g., underground percolation, underground injection): 

( 1 ) A description of the disposal method, including the location and size of each disposal site, if 

applicable; 

( 2 ) The annual average daily volume disposed of by this method, in gallons per day; and 

( 3 ) Whether disposal through this method is continuous or intermittent; 

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(2) Additional Information. All applicants with a design flow greater than or equal to 0.1 mgd must 

provide the following information: 

(i) Inflow and infiltration. The current average daily volume of inflow and infiltration, in gallons per day, 

and steps the facility is taking to minimize inflow and infiltration; 

(ii) Topographic map. A topographic map (or other map if a topographic map is unavailable) extending at 

least one mile beyond property boundaries of the treatment plant, including all unit processes, and 

showing: 

(A) Treatment plant area and unit processes; 

(B) The major pipes or other structures through which wastewater enters the treatment plant and the 

pipes or other structures through which treated wastewater is discharged from the treatment plant. 

Include outfalls from bypass piping, if applicable; 

(C) Each well where fluids from the treatment plant are injected underground; 

(D) Wells, springs, and other surface water bodies listed in public records or otherwise known to the 

applicant within1/4mile of the treatment works' property boundaries; 

(E) Sewage sludge management facilities (including on-site treatment, storage, and disposal sites); and 

(F) Location at which waste classified as hazardous under RCRA enters the treatment plant by truck, 

rail, or dedicated pipe; 

(iii) Process flow diagram or schematic. (A) A diagram showing the processes of the treatment plant, 

including all bypass piping and all backup power sources or redundancy in the system. This includes a 

water balance showing all treatment units, including disinfection, and showing daily average flow rates at 

influent and discharge points, and approximate daily flow rates between treatment units; and 

(B) A narrative description of the diagram; and 

(iv) Scheduled improvements, schedules of implementation. The following information regarding 

scheduled improvements: 

(A) The outfall number of each outfall affected; 

(B) A narrative description of each required improvement; 

(C) Scheduled or actual dates of completion for the following: 

( 1 ) Commencement of construction; 

( 2 ) Completion of construction; 

( 3 ) Commencement of discharge; and 

( 4 ) Attainment of operational level; 

(D) A description of permits and clearances concerning other Federal and/or State requirements; 

(3) Information on effluent discharges. Each applicant must provide the following information for each 

outfall, including bypass points, through which effluent is discharged, as applicable: 

(i) Description of outfall. The following information about each outfall: 

(A) Outfall number; 

(B) State, county, and city or town in which outfall is located; 

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(C) Latitude and longitude, to the nearest second; 

(D) Distance from shore and depth below surface; 

(E) Average daily flow rate, in million gallons per day; 

(F) The following information for each outfall with a seasonal or periodic discharge: 

( 1 ) Number of times per year the discharge occurs; 

( 2 ) Duration of each discharge; 

( 3 ) Flow of each discharge; and 

( 4 ) Months in which discharge occurs; and 

(G) Whether the outfall is equipped with a diffuser and the type (e.g., high-rate) of diffuser used; 

(ii) Description of receiving waters. The following information (if known) for each outfall through which 

effluent is discharged to waters of the United States: 

(A) Name of receiving water; 

(B) Name of watershed/river/stream system and United States Soil Conservation Service 14-digit 

watershed code; 

(C) Name of State Management/River Basin and United States Geological Survey 8-digit hydrologic 

cataloging unit code; and 

(D) Critical flow of receiving stream and total hardness of receiving stream at critical low flow (if 

applicable); 

(iii) Description of treatment. The following information describing the treatment provided for discharges 

from each outfall to waters of the United States: 

(A) The highest level of treatment (e.g., primary, equivalent to secondary, secondary, advanced, other) 

that is provided for the discharge for each outfall and: 

( 1 ) Design biochemical oxygen demand (BOD5or CBOD5) removal (percent);

( 2 ) Design suspended solids (SS) removal (percent); and, where applicable, 

( 3 ) Design phosphorus (P) removal (percent); 

( 4 ) Design nitrogen (N) removal (percent); and 

( 5 ) Any other removals that an advanced treatment system is designed to achieve. 

(B) A description of the type of disinfection used, and whether the treatment plant dechlorinates (if 

disinfection is accomplished through chlorination); 

(4) Effluent monitoring for specific parameters. (i) As provided in paragraphs (j)(4)(ii) through (x) of this 

section, all applicants must submit to the Director effluent monitoring information for samples taken from 

each outfall through which effluent is discharged to waters of the United States, except for CSOs. The 

Director may allow applicants to submit sampling data for only one outfall on a case-by-case basis, 

where the applicant has two or more outfalls with substantially identical effluent. The Director may also 

allow applicants to composite samples from one or more outfalls that discharge into the same mixing 

zone; 

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(ii) All applicants must sample and analyze for the pollutants listed in Appendix J, Table 1A of this part; 

(iii) All applicants with a design flow greater than or equal to 0.1 mgd must sample and analyze for the 

pollutants listed in Appendix J, Table 1 of this part. Facilities that do not use chlorine for disinfection, do 

not use chlorine elsewhere in the treatment process, and have no reasonable potential to discharge 

chlorine in their effluent may delete chlorine from Table 1; 

(iv) The following applicants must sample and analyze for the pollutants listed in Appendix J, Table 2 of 

this part, and for any other pollutants for which the State or EPA have established water quality 

standards applicable to the receiving waters: 

(A) All POTWs with a design flow rate equal to or greater than one million gallons per day; 

(B) All POTWs with approved pretreatment programs or POTWs required to develop a pretreatment 

program; 

(C) Other POTWs, as required by the Director; 

(v) The Director should require sampling for additional pollutants, as appropriate, on a case-by-case 

basis; 

(vi) Applicants must provide data from a minimum of three samples taken within four and one-half years 

prior to the date of the permit application. Samples must be representative of the seasonal variation in 

the discharge from each outfall. Existing data may be used, if available, in lieu of sampling done solely 

for the purpose of this application. The Director should require additional samples, as appropriate, on a 

case-by-case basis. 

(vii) All existing data for pollutants specified in paragraphs (j)(4)(ii) through (v) of this section that is 

collected within four and one-half years of the application must be included in the pollutant data 

summary submitted by the applicant. If, however, the applicant samples for a specific pollutant on a 

monthly or more frequent basis, it is only necessary, for such pollutant, to summarize all data collected 

within one year of the application. 

(viii) Applicants must collect samples of effluent and analyze such samples for pollutants in accordance 

with analytical methods approved under 40 CFR Part 136 unless an alternative is specified in the 

existing NPDES permit. When analysis of pH, temperature, cyanide, total phenols, residual chlorine, oil 

and grease, fecal coliform (including E. coli ), or volatile organics is required in paragraphs (j)(4)(ii) 

through (iv) of this section, grab samples must be collected for those pollutants. For all other pollutants, 

24-hour composite samples must be used. For a composite sample, only one analysis of the composite 

of aliquots is required. 

(ix) The effluent monitoring data provided must include at least the following information for each 

parameter: 

(A) Maximum daily discharge, expressed as concentration or mass, based upon actual sample values; 

(B) Average daily discharge for all samples, expressed as concentration or mass, and the number of 

samples used to obtain this value; 

(C) The analytical method used; and 

(D) The threshold level (i.e., method detection limit, minimum level, or other designated method 

endpoints) for the analytical method used. 

(x) Unless otherwise required by the Director, metals must be reported as total recoverable. 

(5) Effluent monitoring for whole effluent toxicity. (i) All applicants must provide an identification of any 

whole effluent toxicity tests conducted during the four and one-half years prior to the date of the 

application on any of the applicant's discharges or on any receiving water near the discharge. 

(ii) As provided in paragraphs (j)(5)(iii)–(ix) of this section, the following applicants must submit to the 

Director the results of valid whole effluent toxicity tests for acute or chronic toxicity for samples taken 

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from each outfall through which effluent is discharged to surface waters, except for combined sewer 

overflows: 

(A) All POTWs with design flow rates greater than or equal to one million gallons per day; 

(B) All POTWs with approved pretreatment programs or POTWs required to develop a pretreatment 

program; 

(C) Other POTWs, as required by the Director, based on consideration of the following factors: 

( 1 ) The variability of the pollutants or pollutant parameters in the POTW effluent (based on chemicalspecific information, the type of treatment plant, and types of industrial contributors); 

( 2 ) The ratio of effluent flow to receiving stream flow; 

( 3 ) Existing controls on point or non-point sources, including total maximum daily load calculations for 

the receiving stream segment and the relative contribution of the POTW; 

( 4 ) Receiving stream characteristics, including possible or known water quality impairment, and 

whether the POTW discharges to a coastal water, one of the Great Lakes, or a water designated as an 

outstanding natural resource water; or 

( 5 ) Other considerations (including, but not limited to, the history of toxic impacts and compliance 

problems at the POTW) that the Director determines could cause or contribute to adverse water quality 

impacts. 

(iii) Where the POTW has two or more outfalls with substantially identical effluent discharging to the 

same receiving stream segment, the Director may allow applicants to submit whole effluent toxicity data 

for only one outfall on a case-by-case basis. The Director may also allow applicants to composite 

samples from one or more outfalls that discharge into the same mixing zone. 

(iv) Each applicant required to perform whole effluent toxicity testing pursuant to paragraph (j)(5)(ii) of 

this section must provide: 

(A) Results of a minimum of four quarterly tests for a year, from the year preceding the permit 

application; or 

(B) Results from four tests performed at least annually in the four and one half year period prior to the 

application, provided the results show no appreciable toxicity using a safety factor determined by the 

permitting authority. 

(v) Applicants must conduct tests with multiple species (no less than two species; e.g., fish, invertebrate, 

plant), and test for acute or chronic toxicity, depending on the range of receiving water dilution. EPA 

recommends that applicants conduct acute or chronic testing based on the following dilutions: 

(A) Acute toxicity testing if the dilution of the effluent is greater than 1000:1 at the edge of the mixing 

zone; 

(B) Acute or chronic toxicity testing if the dilution of the effluent is between 100:1 and 1000:1 at the edge 

of the mixing zone. Acute testing may be more appropriate at the higher end of this range (1000:1), and 

chronic testing may be more appropriate at the lower end of this range (100:1); and 

(C) Chronic testing if the dilution of the effluent is less than 100:1 at the edge of the mixing zone. 

(vi) Each applicant required to perform whole effluent toxicity testing pursuant to paragraph (j)(5)(ii) of 

this section must provide the number of chronic or acute whole effluent toxicity tests that have been 

conducted since the last permit reissuance. 

(vii) Applicants must provide the results using the form provided by the Director, or test summaries if 

available and comprehensive, for each whole effluent toxicity test conducted pursuant to paragraph (j)(5)

(ii) of this section for which such information has not been reported previously to the Director. 

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(viii) Whole effluent toxicity testing conducted pursuant to paragraph (j)(5)(ii) of this section must be 

conducted using methods approved under 40 CFR part 136. West coast facilities in Washington, 

Oregon, California, Alaska, Hawaii, and the Pacific Territories are exempted from 40 CFR part 136 

chronic methods and must use alternative guidance as directed by the permitting authority. 

(ix) For whole effluent toxicity data submitted to the Director within four and one-half years prior to the 

date of the application, applicants must provide the dates on which the data were submitted and a 

summary of the results. 

(x) Each POTW required to perform whole effluent toxicity testing pursuant to paragraph (j)(5)(ii) of this 

section must provide any information on the cause of toxicity and written details of any toxicity reduction 

evaluation conducted, if any whole effluent toxicity test conducted within the past four and one-half years 

revealed toxicity. 

(6) Industrial discharges. Applicants must submit the following information about industrial discharges to 

the POTW: 

(i) Number of significant industrial users (SIUs) and categorical industrial users (CIUs) discharging to the 

POTW; and 

(ii) POTWs with one or more SIUs shall provide the following information for each SIU, as defined at 40 

CFR 403.3(v), that discharges to the POTW: 

(A) Name and mailing address; 

(B) Description of all industrial processes that affect or contribute to the SIU's discharge; 

(C) Principal products and raw materials of the SIU that affect or contribute to the SIU's discharge; 

(D) Average daily volume of wastewater discharged, indicating the amount attributable to process flow 

and non-process flow; 

(E) Whether the SIU is subject to local limits; 

(F) Whether the SIU is subject to categorical standards, and if so, under which category(ies) and 

subcategory(ies); and 

(G) Whether any problems at the POTW (e.g., upsets, pass through, interference) have been attributed 

to the SIU in the past four and one-half years. 

(iii) The information required in paragraphs (j)(6)(i) and (ii) of this section may be waived by the Director 

for POTWs with pretreatment programs if the applicant has submitted either of the following that contain 

information substantially identical to that required in paragraphs (j)(6)(i) and (ii) of this section. 

(A) An annual report submitted within one year of the application; or 

(B) A pretreatment program; 

(7) Discharges from hazardous waste generators and from waste cleanup or remediation sites. POTWs 

receiving Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), or RCRA Corrective Action wastes or wastes generated at 

another type of cleanup or remediation site must provide the following information: 

(i) If the POTW receives, or has been notified that it will receive, by truck, rail, or dedicated pipe any 

wastes that are regulated as RCRA hazardous wastes pursuant to 40 CFR part 261, the applicant must 

report the following: 

(A) The method by which the waste is received (i.e., whether by truck, rail, or dedicated pipe); and 

(B) The hazardous waste number and amount received annually of each hazardous waste; 

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(ii) If the POTW receives, or has been notified that it will receive, wastewaters that originate from 

remedial activities, including those undertaken pursuant to CERCLA and sections 3004(u) or 3008(h) of 

RCRA, the applicant must report the following: 

(A) The identity and description of the site(s) or facility(ies) at which the wastewater originates; 

(B) The identities of the wastewater's hazardous constituents, as listed in Appendix VIII of part 261 of 

this chapter; if known; and 

(C) The extent of treatment, if any, the wastewater receives or will receive before entering the POTW; 

(iii) Applicants are exempt from the requirements of paragraph (j)(7)(ii) of this section if they receive no 

more than fifteen kilograms per month of hazardous wastes, unless the wastes are acute hazardous 

wastes as specified in 40 CFR 261.30(d) and 261.33(e). 

(8) Combined sewer overflows. Each applicant with combined sewer systems must provide the following 

information: 

(i) Combined sewer system information. The following information regarding the combined sewer 

system: 

(A) System map. A map indicating the location of the following: 

( 1 ) All CSO discharge points; 

( 2 ) Sensitive use areas potentially affected by CSOs (e.g., beaches, drinking water supplies, shellfish 

beds, sensitive aquatic ecosystems, and outstanding national resource waters); and 

( 3 ) Waters supporting threatened and endangered species potentially affected by CSOs; and 

(B) System diagram. A diagram of the combined sewer collection system that includes the following 

information: 

( 1 ) The location of major sewer trunk lines, both combined and separate sanitary; 

( 2 ) The locations of points where separate sanitary sewers feed into the combined sewer system; 

( 3 ) In-line and off-line storage structures; 

( 4 ) The locations of flow-regulating devices; and 

( 5 ) The locations of pump stations; 

(ii) Information on CSO outfalls. The following information for each CSO discharge point covered by the 

permit application: 

(A) Description of outfall. The following information on each outfall: 

( 1 ) Outfall number; 

( 2 ) State, county, and city or town in which outfall is located; 

( 3 ) Latitude and longitude, to the nearest second; and 

( 4 ) Distance from shore and depth below surface; 

( 5 ) Whether the applicant monitored any of the following in the past year for this CSO: 

( i ) Rainfall; 

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( ii ) CSO flow volume; 

( iii ) CSO pollutant concentrations; 

( iv ) Receiving water quality; 

( v ) CSO frequency; and 

( 6 ) The number of storm events monitored in the past year; 

(B) CSO events. The following information about CSO overflows from each outfall: 

( 1 ) The number of events in the past year; 

( 2 ) The average duration per event, if available; 

( 3 ) The average volume per CSO event, if available; and 

( 4 ) The minimum rainfall that caused a CSO event, if available, in the last year; 

(C) Description of receiving waters. The following information about receiving waters: 

( 1 ) Name of receiving water; 

( 2 ) Name of watershed/stream system and the United States Soil Conservation Service watershed (14-

digit) code (if known); and 

( 3 ) Name of State Management/River Basin and the United States Geological Survey hydrologic 

cataloging unit (8-digit) code (if known); and 

(D) CSO operations. A description of any known water quality impacts on the receiving water caused by 

the CSO (e.g., permanent or intermittent beach closings, permanent or intermittent shellfish bed 

closings, fish kills, fish advisories, other recreational loss, or exceedance of any applicable State water 

quality standard); 

(9) Contractors. All applicants must provide the name, mailing address, telephone number, and 

responsibilities of all contractors responsible for any operational or maintenance aspects of the facility; 

and 

(10) Signature. All applications must be signed by a certifying official in compliance with §122.22. 

(k) Application requirements for new sources and new discharges. New manufacturing, commercial, 

mining and silvicultural dischargers applying for NPDES permits (except for new discharges of facilities 

subject to the requirements of paragraph (h) of this section or new discharges of storm water associated 

with industrial activity which are subject to the requirements of §122.26(c)(1) and this section (except as 

provided by §122.26(c)(1)(ii)) shall provide the following information to the Director, using the application 

forms provided by the Director: 

(1) Expected outfall location. The latitude and longitude to the nearest 15 seconds and the name of the 

receiving water. 

(2) Discharge dates. The expected date of commencement of discharge. 

(3) Flows, sources of pollution, and treatment technologies —(i) Expected treatment of wastewater. 

Description of the treatment that the wastewater will receive, along with all operations contributing 

wastewater to the effluent, average flow contributed by each operation, and the ultimate disposal of any 

solid or liquid wastes not discharged. 

(ii) Line drawing. A line drawing of the water flow through the facility with a water balance as described in 

§122.21(g)(2). 

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(iii) Intermittent flows. If any of the expected discharges will be intermittent or seasonal, a description of 

the frequency, duration and maximum daily flow rate of each discharge occurrence (except for 

stormwater runoff, spillage, or leaks). 

(4) Production. If a new source performance standard promulgated under section 306 of CWA or an 

effluent limitation guideline applies to the applicant and is expressed in terms of production (or other 

measure of operation), a reasonable measure of the applicant's expected actual production reported in 

the units used in the applicable effluent guideline or new source performance standard as required by 

§122.45(b)(2) for each of the first three years. Alternative estimates may also be submitted if production 

is likely to vary. 

(5) Effluent characteristics. The requirements in paragraphs (h)(4)(i), (ii), and (iii) of this section that an 

applicant must provide estimates of certain pollutants expected to be present do not apply to pollutants 

present in a discharge solely as a result of their presence in intake water; however, an applicant must 

report such pollutants as present. Net credits may be provided for the presence of pollutants in intake 

water if the requirements of §122.45(g) are met. All levels (except for discharge flow, temperature, and 

pH) must be estimated as concentration and as total mass. 

(i) Each applicant must report estimated daily maximum, daily average, and source of information for 

each outfall for the following pollutants or parameters. The Director may waive the reporting 

requirements for any of these pollutants and parameters if the applicant submits a request for such a 

waiver before or with his application which demonstrates that information adequate to support issuance 

of the permit can be obtained through less stringent reporting requirements. 

(A) Biochemical Oxygen Demand (BOD). 

(B) Chemical Oxygen Demand (COD). 

(C) Total Organic Carbon (TOC). 

(D) Total Suspended Solids (TSS). 

(E) Flow. 

(F) Ammonia (as N). 

(G) Temperature (winter and summer). 

(H) pH. 

(ii) Each applicant must report estimated daily maximum, daily average, and source of information for 

each outfall for the following pollutants, if the applicant knows or has reason to believe they will be 

present or if they are limited by an effluent limitation guideline or new source performance standard 

either directly or indirectly through limitations on an indicator pollutant: all pollutants in table IV of 

appendix D of part 122 (certain conventional and nonconventional pollutants). 

(iii) Each applicant must report estimated daily maximum, daily average and source of information for the 

following pollutants if he knows or has reason to believe that they will be present in the discharges from 

any outfall: 

(A) The pollutants listed in table III of appendix D (the toxic metals, in the discharge from any outfall: 

Total cyanide, and total phenols); 

(B) The organic toxic pollutants in table II of appendix D (except bis (chloromethyl) ether, 

dichlorofluoromethane and trichlorofluoromethane). This requirement is waived for applicants with 

expected gross sales of less than $100,000 per year for the next three years, and for coal mines with 

expected average production of less than 100,000 tons of coal per year. 

(iv) The applicant is required to report that 2,3,7,8 Tetrachlorodibenzo-P-Dioxin (TCDD) may be 

discharged if he uses or manufactures one of the following compounds, or if he knows or has reason to 

believe that TCDD will or may be present in an effluent: 

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(A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS #93–76–5); 

(B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) (CAS #93–72–1); 

(C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) (CAS #136–25–4); 

(D) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) (CAS #299–84–3); 

(E) 2,4,5-trichlorophenol (TCP) (CAS #95–95–4); or 

(F) Hexachlorophene (HCP) (CAS #70–30–4); 

(v) Each applicant must report any pollutants listed in table V of appendix D (certain hazardous 

substances) if he believes they will be present in any outfall (no quantitative estimates are required 

unless they are already available). 

(vi) No later than two years after the commencement of discharge from the proposed facility, the 

applicant is required to complete and submit Items V and VI of NPDES application Form 2c (see 

§122.21(g)). However, the applicant need not complete those portions of Item V requiring tests which he 

has already performed and reported under the discharge monitoring requirements of his NPDES permit. 

(6) Engineering Report. Each applicant must report the existence of any technical evaluation concerning 

his wastewater treatment, along with the name and location of similar plants of which he has knowledge. 

(7) Other information. Any optional information the permittee wishes to have considered. 

(8) Certification. Signature of certifying official under §122.22. 

(l) Special provisions for applications from new sources. (1) The owner or operator of any facility which 

may be a new source (as defined in §122.2 ) and which is located in a State without an approved 

NPDES program must comply with the provisions of this paragraph (l)(1). 

(2)(i) Before beginning any on-site construction as defined in §122.29, the owner or operator of any 

facility which may be a new source must submit information to the Regional Administrator so that he or 

she can determine if the facility is a new source. The Regional Administrator may request any additional 

information needed to determine whether the facility is a new source. 

(ii) The Regional Administrator shall make an initial determination whether the facility is a new source 

within 30 days of receiving all necessary information under paragraph (l)(2)(i) of this section. 

(3) The Regional Administrator shall issue a public notice in accordance with §124.10 of this chapter of 

the new source determination under paragraph (l)(2) of this section. If the Regional Administrator has 

determined that the facility is a new source, the notice shall state that the applicant must comply with the 

environmental review requirements of 40 CFR 6.600 through 6.607. 

(4) Any interested party may challenge the Regional Administrator's initial new source determination by 

requesting review of the determination under §124.19 of this chapter within 30 days of the public notice 

of the initial determination. If all interested parties agree, the Environmental Appeals Board may defer 

review until after a final permit decision is made, and consolidate review of the determination with any 

review of the permit decision. 

(m) Variance requests by non-POTWs. A discharger which is not a publicly owned treatment works 

(POTW) may request a variance from otherwise applicable effluent limitations under any of the following 

statutory or regulatory provisions within the times specified in this paragraph: 

(1) Fundamentally different factors. (i) A request for a variance based on the presence of “fundamentally 

different factors” from those on which the effluent limitations guideline was based shall be filed as 

follows: 

(A) For a request from best practicable control technology currently available (BPT), by the close of the 

public comment period under §124.10. 

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(B) For a request from best available technology economically achievable (BAT) and/or best 

conventional pollutant control technology (BCT), by no later than: 

( 1 ) July 3, 1989, for a request based on an effluent limitation guideline promulgated before February 4, 

1987, to the extent July 3, 1989 is not later than that provided under previously promulgated regulations; 

or 

( 2 ) 180 days after the date on which an effluent limitation guideline is published in the 

 Federal Register for a request based on an effluent limitation guideline promulgated on or after 

February 4, 1987. 

(ii) The request shall explain how the requirements of the applicable regulatory and/or statutory criteria 

have been met. 

(2) Non-conventional pollutants. A request for a variance from the BAT requirements for CWA section 

301(b)(2)(F) pollutants (commonly called “non-conventional” pollutants) pursuant to section 301(c) of 

CWA because of the economic capability of the owner or operator, or pursuant to section 301(g) of the 

CWA (provided however that a §301(g) variance may only be requested for ammonia; chlorine; color; 

iron; total phenols (4AAP) (when determined by the Administrator to be a pollutant covered by section 

301(b)(2)(F)) and any other pollutant which the Administrator lists under section 301(g)(4) of the CWA) 

must be made as follows: 

(i) For those requests for a variance from an effluent limitation based upon an effluent limitation guideline 

by: 

(A) Submitting an initial request to the Regional Administrator, as well as to the State Director if 

applicable, stating the name of the discharger, the permit number, the outfall number(s), the applicable 

effluent guideline, and whether the discharger is requesting a section 301(c) or section 301(g) 

modification or both. This request must have been filed not later than: 

( 1 ) September 25, 1978, for a pollutant which is controlled by a BAT effluent limitation guideline 

promulgated before December 27, 1977; or 

( 2 ) 270 days after promulgation of an applicable effluent limitation guideline for guidelines promulgated 

after December 27, 1977; and 

(B) Submitting a completed request no later than the close of the public comment period under §124.10 

demonstrating that the requirements of §124.13 and the applicable requirements of part 125 have been 

met. Notwithstanding this provision, the complete application for a request under section 301(g) shall be 

filed 180 days before EPA must make a decision (unless the Regional Division Director establishes a 

shorter or longer period). 

(ii) For those requests for a variance from effluent limitations not based on effluent limitation guidelines, 

the request need only comply with paragraph (m)(2)(i)(B) of this section and need not be preceded by an 

initial request under paragraph (m)(2)(i)(A) of this section. 

(3)–(4) [Reserved] 

(5) Water quality related effluent limitations. A modification under section 302(b)(2) of requirements 

under section 302(a) for achieving water quality related effluent limitations may be requested no later 

than the close of the public comment period under §124.10 on the permit from which the modification is 

sought. 

(6) Thermal discharges. A variance under CWA section 316(a) for the thermal component of any 

discharge must be filed with a timely application for a permit under this section, except that if thermal 

effluent limitations are established under CWA section 402(a)(1) or are based on water quality standards 

the request for a variance may be filed by the close of the public comment period under §124.10. A copy 

of the request as required under 40 CFR part 125, subpart H, shall be sent simultaneously to the 

appropriate State or interstate certifying agency as required under 40 CFR part 125. (See §124.65 for 

special procedures for section 316(a) thermal variances.) 

(n) Variance requests by POTWs. A discharger which is a publicly owned treatment works (POTW) may 

request a variance from otherwise applicable effluent limitations under any of the following statutory 

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provisions as specified in this paragraph: 

(1) Discharges into marine waters. A request for a modification under CWA section 301(h) of 

requirements of CWA section 301(b)(1)(B) for discharges into marine waters must be filed in accordance 

with the requirements of 40 CFR part 125, subpart G. 

(2) [Reserved] 

(3) Water quality based effluent limitation. A modification under CWA section 302(b)(2) of the 

requirements under section 302(a) for achieving water quality based effluent limitations shall be 

requested no later than the close of the public comment period under §124.10 on the permit from which 

the modification is sought. 

(o) Expedited variance procedures and time extensions. (1) Notwithstanding the time requirements in 

paragraphs (m) and (n) of this section, the Director may notify a permit applicant before a draft permit is 

issued under §124.6 that the draft permit will likely contain limitations which are eligible for variances. In 

the notice the Director may require the applicant as a condition of consideration of any potential variance 

request to submit a request explaining how the requirements of part 125 applicable to the variance have 

been met and may require its submission within a specified reasonable time after receipt of the notice. 

The notice may be sent before the permit application has been submitted. The draft or final permit may 

contain the alternative limitations which may become effective upon final grant of the variance. 

(2) A discharger who cannot file a timely complete request required under paragraph (m)(2)(i)(B) or (m)

(2)(ii) of this section may request an extension. The extension may be granted or denied at the 

discretion of the Director. Extensions shall be no more than 6 months in duration. 

(p) Recordkeeping . Except for information required by paragraph (d)(3)(ii) of this section, which shall be 

retained for a period of at least five years from the date the application is signed (or longer as required 

by 40 CFR part 503), applicants shall keep records of all data used to complete permit applications and 

any supplemental information submitted under this section for a period of at least 3 years from the date 

the application is signed. 

(q) Sewage sludge management. All TWTDS subject to paragraph (c)(2)(i) of this section must provide 

the information in this paragraph to the Director, using Form 2S or another application form approved by 

the Director. New applicants must submit all information available at the time of permit application. The 

information may be provided by referencing information previously submitted to the Director. The 

Director may waive any requirement of this paragraph if he or she has access to substantially identical 

information. The Director may also waive any requirement of this paragraph that is not of material 

concern for a specific permit, if approved by the Regional Administrator. The waiver request to the 

Regional Administrator must include the State's justification for the waiver. A Regional Administrator's 

disapproval of a State's proposed waiver does not constitute final Agency action, but does provide notice 

to the State and permit applicant(s) that EPA may object to any State-issued permit issued in the 

absence of the required information. 

(1) Facility information. All applicants must submit the following information: 

(i) The name, mailing address, and location of the TWTDS for which the application is submitted; 

(ii) Whether the facility is a Class I Sludge Management Facility; 

(iii) The design flow rate (in million gallons per day); 

(iv) The total population served; and 

(v) The TWTDS's status as Federal, State, private, public, or other entity; 

(2) Applicant information. All applicants must submit the following information: 

(i) The name, mailing address, and telephone number of the applicant; and 

(ii) Indication whether the applicant is the owner, operator, or both; 

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(3) Permit information. All applicants must submit the facility's NPDES permit number, if applicable, and 

a listing of all other Federal, State, and local permits or construction approvals received or applied for 

under any of the following programs: 

(i) Hazardous Waste Management program under the Resource Conservation and Recovery Act 

(RCRA); 

(ii) UIC program under the Safe Drinking Water Act (SDWA); 

(iii) NPDES program under the Clean Water Act (CWA); 

(iv) Prevention of Significant Deterioration (PSD) program under the Clean Air Act; 

(v) Nonattainment program under the Clean Air Act; 

(vi) National Emission Standards for Hazardous Air Pollutants (NESHAPS) preconstruction approval 

under the Clean Air Act; 

(vii) Dredge or fill permits under section 404 of CWA; 

(viii) Other relevant environmental permits, including State or local permits; 

(4) Indian country. All applicants must identify any generation, treatment, storage, land application, or 

disposal of sewage sludge that occurs in Indian country; 

(5) Topographic map. All applicants must submit a topographic map (or other map if a topographic map 

is unavailable) extending one mile beyond property boundaries of the facility and showing the following 

information: 

(i) All sewage sludge management facilities, including on-site treatment, storage, and disposal sites; and 

(ii) Wells, springs, and other surface water bodies that are within1/4mile of the property boundaries and 

listed in public records or otherwise known to the applicant; 

(6) Sewage sludge handling. All applicants must submit a line drawing and/or a narrative description that 

identifies all sewage sludge management practices employed during the term of the permit, including all 

units used for collecting, dewatering, storing, or treating sewage sludge, the destination(s) of all liquids 

and solids leaving each such unit, and all processes used for pathogen reduction and vector attraction 

reduction; 

(7) Sewage sludge quality. The applicant must submit sewage sludge monitoring data for the pollutants 

for which limits in sewage sludge have been established in 40 CFR part 503 for the applicant's use or 

disposal practices on the date of permit application. 

(i) The Director may require sampling for additional pollutants, as appropriate, on a case-by-case basis; 

(ii) Applicants must provide data from a minimum of three samples taken within four and one-half years 

prior to the date of the permit application. Samples must be representative of the sewage sludge and 

should be taken at least one month apart. Existing data may be used in lieu of sampling done solely for 

the purpose of this application; 

(iii) Applicants must collect and analyze samples in accordance with analytical methods approved under 

SW–846 unless an alternative has been specified in an existing sewage sludge permit; 

(iv) The monitoring data provided must include at least the following information for each parameter: 

(A) Average monthly concentration for all samples (mg/kg dry weight), based upon actual sample 

values; 

(B) The analytical method used; and 

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(C) The method detection level. 

(8) Preparation of sewage sludge. If the applicant is a “person who prepares” sewage sludge, as defined 

at 40 CFR 503.9(r), the applicant must provide the following information: 

(i) If the applicant's facility generates sewage sludge, the total dry metric tons per 365-day period 

generated at the facility; 

(ii) If the applicant's facility receives sewage sludge from another facility, the following information for 

each facility from which sewage sludge is received: 

(A) The name, mailing address, and location of the other facility; 

(B) The total dry metric tons per 365-day period received from the other facility; and 

(C) A description of any treatment processes occurring at the other facility, including blending activities 

and treatment to reduce pathogens or vector attraction characteristics; 

(iii) If the applicant's facility changes the quality of sewage sludge through blending, treatment, or other 

activities, the following information: 

(A) Whether the Class A pathogen reduction requirements in 40 CFR 503.32(a) or the Class B pathogen 

reduction requirements in 40 CFR 503.32(b) are met, and a description of any treatment processes used 

to reduce pathogens in sewage sludge; 

(B) Whether any of the vector attraction reduction options of 40 CFR 503.33(b)(1) through (b)(8) are 

met, and a description of any treatment processes used to reduce vector attraction properties in sewage 

sludge; and 

(C) A description of any other blending, treatment, or other activities that change the quality of sewage 

sludge; 

(iv) If sewage sludge from the applicant's facility meets the ceiling concentrations in 40 CFR 503.13(b)

(1), the pollutant concentrations in §503.13(b)(3), the Class A pathogen requirements in §503.32(a), and 

one of the vector attraction reduction requirements in §503.33(b)(1) through (b)(8), and if the sewage 

sludge is applied to the land, the applicant must provide the total dry metric tons per 365-day period of 

sewage sludge subject to this paragraph that is applied to the land; 

(v) If sewage sludge from the applicant's facility is sold or given away in a bag or other container for 

application to the land, and the sewage sludge is not subject to paragraph (q)(8)(iv) of this section, the 

applicant must provide the following information: 

(A) The total dry metric tons per 365-day period of sewage sludge subject to this paragraph that is sold 

or given away in a bag or other container for application to the land; and 

(B) A copy of all labels or notices that accompany the sewage sludge being sold or given away; 

(vi) If sewage sludge from the applicant's facility is provided to another “person who prepares,” as 

defined at 40 CFR 503.9(r), and the sewage sludge is not subject to paragraph (q)(8)(iv) of this section, 

the applicant must provide the following information for each facility receiving the sewage sludge: 

(A) The name and mailing address of the receiving facility; 

(B) The total dry metric tons per 365-day period of sewage sludge subject to this paragraph that the 

applicant provides to the receiving facility; 

(C) A description of any treatment processes occurring at the receiving facility, including blending 

activities and treatment to reduce pathogens or vector attraction characteristic; 

(D) A copy of the notice and necessary information that the applicant is required to provide the receiving 

facility under 40 CFR 503.12(g); and 

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(E) If the receiving facility places sewage sludge in bags or containers for sale or give-away to 

application to the land, a copy of any labels or notices that accompany the sewage sludge; 

(9) Land application of bulk sewage sludge. If sewage sludge from the applicant's facility is applied to 

the land in bulk form, and is not subject to paragraphs (q)(8)(iv), (v), or (vi) of this section, the applicant 

must provide the following information: 

(i) The total dry metric tons per 365-day period of sewage sludge subject to this paragraph that is 

applied to the land; 

(ii) If any land application sites are located in States other than the State where the sewage sludge is 

prepared, a description of how the applicant will notify the permitting authority for the State(s) where the 

land application sites are located; 

(iii) The following information for each land application site that has been identified at the time of permit 

application: 

(A) The name (if any), and location for the land application site; 

(B) The site's latitude and longitude to the nearest second, and method of determination; 

(C) A topographic map (or other map if a topographic map is unavailable) that shows the site's location; 

(D) The name, mailing address, and telephone number of the site owner, if different from the applicant; 

(E) The name, mailing address, and telephone number of the person who applies sewage sludge to the 

site, if different from the applicant; 

(F) Whether the site is agricultural land, forest, a public contact site, or a reclamation site, as such site 

types are defined under 40 CFR 503.11; 

(G) The type of vegetation grown on the site, if known, and the nitrogen requirement for this vegetation; 

(H) Whether either of the vector attraction reduction options of 40 CFR 503.33(b)(9) or (b)(10) is met at 

the site, and a description of any procedures employed at the time of use to reduce vector attraction 

properties in sewage sludge; and 

(I) Other information that describes how the site will be managed, as specified by the permitting 

authority. 

(iv) The following information for each land application site that has been identified at the time of permit 

application, if the applicant intends to apply bulk sewage sludge subject to the cumulative pollutant 

loading rates in 40 CFR 503.13(b)(2) to the site: 

(A) Whether the applicant has contacted the permitting authority in the State where the bulk sewage 

sludge subject to §503.13(b)(2) will be applied, to ascertain whether bulk sewage sludge subject to 

§503.13(b)(2) has been applied to the site on or since July 20, 1993, and if so, the name of the 

permitting authority and the name and phone number of a contact person at the permitting authority; 

(B) Identification of facilities other than the applicant's facility that have sent, or are sending, sewage 

sludge subject to the cumulative pollutant loading rates in §503.13(b)(2) to the site since July 20, 1993, 

if, based on the inquiry in paragraph (q)(iv)(A), bulk sewage sludge subject to cumulative pollutant 

loading rates in §503.13(b)(2) has been applied to the site since July 20, 1993; 

(v) If not all land application sites have been identified at the time of permit application, the applicant 

must submit a land application plan that, at a minimum: 

(A) Describes the geographical area covered by the plan; 

(B) Identifies the site selection criteria; 

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(C) Describes how the site(s) will be managed; 

(D) Provides for advance notice to the permit authority of specific land application sites and reasonable 

time for the permit authority to object prior to land application of the sewage sludge; and 

(E) Provides for advance public notice of land application sites in the manner prescribed by State and 

local law. When State or local law does not require advance public notice, it must be provided in a 

manner reasonably calculated to apprize the general public of the planned land application. 

(10) Surface disposal. If sewage sludge from the applicant's facility is placed on a surface disposal site, 

the applicant must provide the following information: 

(i) The total dry metric tons of sewage sludge from the applicant's facility that is placed on surface 

disposal sites per 365-day period; 

(ii) The following information for each surface disposal site receiving sewage sludge from the applicant's 

facility that the applicant does not own or operate: 

(A) The site name or number, contact person, mailing address, and telephone number for the surface 

disposal site; and 

(B) The total dry metric tons from the applicant's facility per 365-day period placed on the surface 

disposal site; 

(iii) The following information for each active sewage sludge unit at each surface disposal site that the 

applicant owns or operates: 

(A) The name or number and the location of the active sewage sludge unit; 

(B) The unit's latitude and longitude to the nearest second, and method of determination; 

(C) If not already provided, a topographic map (or other map if a topographic map is unavailable) that 

shows the unit's location; 

(D) The total dry metric tons placed on the active sewage sludge unit per 365-day period; 

(E) The total dry metric tons placed on the active sewage sludge unit over the life of the unit; 

(F) A description of any liner for the active sewage sludge unit, including whether it has a maximum 

permeability of 1 × 10−7cm/sec;

(G) A description of any leachate collection system for the active sewage sludge unit, including the 

method used for leachate disposal, and any Federal, State, and local permit number(s) for leachate 

disposal; 

(H) If the active sewage sludge unit is less than 150 meters from the property line of the surface disposal 

site, the actual distance from the unit boundary to the site property line; 

(I) The remaining capacity (dry metric tons) for the active sewage sludge unit; 

(J) The date on which the active sewage sludge unit is expected to close, if such a date has been 

identified; 

(K) The following information for any other facility that sends sewage sludge to the active sewage sludge 

unit: 

( 1 ) The name, contact person, and mailing address of the facility; and 

( 2 ) Available information regarding the quality of the sewage sludge received from the facility, including 

any treatment at the facility to reduce pathogens or vector attraction characteristics; 

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(L) Whether any of the vector attraction reduction options of 40 CFR 503.33(b)(9) through (b)(11) is met 

at the active sewage sludge unit, and a description of any procedures employed at the time of disposal 

to reduce vector attraction properties in sewage sludge; 

(M) The following information, as applicable to any ground-water monitoring occurring at the active 

sewage sludge unit: 

( 1 ) A description of any ground-water monitoring occurring at the active sewage sludge unit; 

( 2 ) Any available ground-water monitoring data, with a description of the well locations and 

approximate depth to ground water; 

( 3 ) A copy of any ground-water monitoring plan that has been prepared for the active sewage sludge 

unit; 

( 4 ) A copy of any certification that has been obtained from a qualified ground-water scientist that the 

aquifer has not been contaminated; and 

(N) If site-specific pollutant limits are being sought for the sewage sludge placed on this active sewage 

sludge unit, information to support such a request; 

(11) Incineration. If sewage sludge from the applicant's facility is fired in a sewage sludge incinerator, the 

applicant must provide the following information: 

(i) The total dry metric tons of sewage sludge from the applicant's facility that is fired in sewage sludge 

incinerators per 365-day period; 

(ii) The following information for each sewage sludge incinerator firing the applicant's sewage sludge 

that the applicant does not own or operate: 

(A) The name and/or number, contact person, mailing address, and telephone number of the sewage 

sludge incinerator; and 

(B) The total dry metric tons from the applicant's facility per 365-day period fired in the sewage sludge 

incinerator; 

(iii) The following information for each sewage sludge incinerator that the applicant owns or operates: 

(A) The name and/or number and the location of the sewage sludge incinerator; 

(B) The incinerator's latitude and longitude to the nearest second, and method of determination; 

(C) The total dry metric tons per 365-day period fired in the sewage sludge incinerator; 

(D) Information, test data, and documentation of ongoing operating parameters indicating that 

compliance with the National Emission Standard for Beryllium in 40 CFR part 61 will be achieved; 

(E) Information, test data, and documentation of ongoing operating parameters indicating that 

compliance with the National Emission Standard for Mercury in 40 CFR part 61 will be achieved; 

(F) The dispersion factor for the sewage sludge incinerator, as well as modeling results and supporting 

documentation; 

(G) The control efficiency for parameters regulated in 40 CFR 503.43, as well as performance test 

results and supporting documentation; 

(H) Information used to calculate the risk specific concentration (RSC) for chromium, including the 

results of incinerator stack tests for hexavalent and total chromium concentrations, if the applicant is 

requesting a chromium limit based on a site-specific RSC value; 

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(I) Whether the applicant monitors total hydrocarbons (THC) or Carbon Monoxide (CO) in the exit gas for 

the sewage sludge incinerator; 

(J) The type of sewage sludge incinerator; 

(K) The maximum performance test combustion temperature, as obtained during the performance test of 

the sewage sludge incinerator to determine pollutant control efficiencies; 

(L) The following information on the sewage sludge feed rate used during the performance test: 

( 1 ) Sewage sludge feed rate in dry metric tons per day; 

( 2 ) Identification of whether the feed rate submitted is average use or maximum design; and 

( 3 ) A description of how the feed rate was calculated; 

(M) The incinerator stack height in meters for each stack, including identification of whether actual or 

creditable stack height was used; 

(N) The operating parameters for the sewage sludge incinerator air pollution control device(s), as 

obtained during the performance test of the sewage sludge incinerator to determine pollutant control 

efficiencies; 

(O) Identification of the monitoring equipment in place, including (but not limited to) equipment to monitor 

the following: 

( 1 ) Total hydrocarbons or Carbon Monoxide; 

( 2 ) Percent oxygen; 

( 3 ) Percent moisture; and 

( 4 ) Combustion temperature; and 

(P) A list of all air pollution control equipment used with this sewage sludge incinerator; 

(12) Disposal in a municipal solid waste landfill. If sewage sludge from the applicant's facility is sent to a 

municipal solid waste landfill (MSWLF), the applicant must provide the following information for each 

MSWLF to which sewage sludge is sent: 

(i) The name, contact person, mailing address, location, and all applicable permit numbers of the 

MSWLF; 

(ii) The total dry metric tons per 365-day period sent from this facility to the MSWLF; 

(iii) A determination of whether the sewage sludge meets applicable requirements for disposal of 

sewage sludge in a MSWLF, including the results of the paint filter liquids test and any additional 

requirements that apply on a site-specific basis; and 

(iv) Information, if known, indicating whether the MSWLF complies with criteria set forth in 40 CFR part 

258; 

(13) Contractors. All applicants must provide the name, mailing address, telephone number, and 

responsibilities of all contractors responsible for any operational or maintenance aspects of the facility 

related to sewage sludge generation, treatment, use, or disposal; 

(14) Other information. At the request of the permitting authority, the applicant must provide any other 

information necessary to determine the appropriate standards for permitting under 40 CFR part 503, and 

must provide any other information necessary to assess the sewage sludge use and disposal practices, 

determine whether to issue a permit, or identify appropriate permit requirements; and 

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(15) Signature. All applications must be signed by a certifying official in compliance with §122.22. 

[Note 1: At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency suspended until 

further notice §122.21(g)(7)(v)(A) and the corresponding portions of Item V-C of the NPDES 

application Form 2C as they apply to coal mines. This suspension continues in effect.] 

[Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection Agency suspended 

until further notice §122.21(g)(7)(v)(A) and the corresponding portions of Item V-C of the 

NPDES application Form 2C as they apply to: 

a. Testing and reporting for all four organic fractions in the Greige Mills Subcategory of the 

Textile Mills industry (subpart C—Low water use processing of 40 CFR part 410), and testing 

and reporting for the pesticide fraction in all other subcategories of this industrial category. 

b. Testing and reporting for the volatile, base/neutral and pesticide fractions in the Base and 

Precious Metals Subcategory of the Ore Mining and Dressing industry (subpart B of 40 CFR 

part 440), and testing and reporting for all four fractions in all other subcategories of this 

industrial category. 

c. Testing and reporting for all four GC/MS fractions in the Porcelain Enameling industry. 

This revision continues that suspension.]1

[Note 3: At 46 FR 35090, July 1, 1981, the Environmental Protection Agency suspended until 

further notice §122.21(g)(7)(v)(A) and the corresponding portions of Item V-C of the NPDES 

application Form 2C as they apply to: 

a. Testing and reporting for the pesticide fraction in the Tall Oil Rosin Subcategory (subpart D) 

and Rosin-Based Derivatives Subcategory (subpart F) of the Gum and Wood Chemicals 

industry (40 CFR part 454), and testing and reporting for the pesticide and base-neutral 

fractions in all other subcategories of this industrial category. 

b. Testing and reporting for the pesticide fraction in the Leather Tanning and Finishing, Paint 

and Ink Formulation, and Photographic Supplies industrial categories. 

c. Testing and reporting for the acid, base/neutral and pesticide fractions in the Petroleum 

Refining industrial category. 

d. Testing and reporting for the pesticide fraction in the Papergrade Sulfite subcategories 

(subparts J and U) of the Pulp and Paper industry (40 CFR part 430); testing and reporting for 

the base/neutral and pesticide fractions in the following subcategories: Deink (subpart Q), 

Dissolving Kraft (subpart F), and Paperboard from Waste Paper (subpart E); testing and 

reporting for the volatile, base/neutral and pesticide fractions in the following subcategories: 

BCT Bleached Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-Fine 

Papers (subpart R); and testing and reporting for the acid, base/neutral, and pesticide 

fractions in the following subcategories: Fine Bleached Kraft (subpart I), Dissolving Sulfite 

Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G), 

Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers (subpart S). 

e. Testing and reporting for the base/neutral fraction in the Once-Through Cooling Water, Fly 

Ash and Bottom Ash Transport Water process wastestreams of the Steam Electric Power 

Plant industrial category. 

This revision continues that suspension.]1

1 Editorial Note:The words “This revision” refer to the document published at 48 FR 14153, 

Apr. 1, 1983. 

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(r) Application requirements for facilities with cooling water intake structures —(1)(i) New facilities with 

new or modified cooling water intake structures. New facilities (other than offshore oil and gas extraction 

facilities) with cooling water intake structures as defined in part 125, subpart I, of this chapter must 

submit to the Director for review the information required under paragraphs (r)(2) (except (r)(2)(iv)), (3), 

and (4) of this section and §125.86 of this chapter as part of their application. New offshore oil and gas 

extraction facilities with cooling water intake structures as defined in part 125, subpart N, of this chapter 

that are fixed facilities must submit to the Director for review the information required under paragraphs 

(r)(2) (except (r)(2)(iv)), (3), and (4) of this section and §125.136 of this chapter as part of their 

application. New offshore oil and gas extraction facilities that are not fixed facilities must submit to the 

Director for review only the information required under paragraphs (r)(2)(iv), (r)(3) (except (r)(3)(ii)), and 

§125.136 of this chapter as part of their application. Requests for alternative requirements under 

§125.85 or §125.135 of this chapter must be submitted with your permit application. 

(ii) Phase II existing facilities. Phase II existing facilities as defined in part 125, subpart J, of this chapter 

must submit to the Director for review the information required under paragraphs (r)(2), (3), and (5) of 

this section and all applicable provisions of §125.95 of this chapter as part of their application except for 

the Proposal for Information Collection which must be provided in accordance with §125.95(b)(1). 

(2) Source water physical data. These include: 

(i) A narrative description and scaled drawings showing the physical configuration of all source water 

bodies used by your facility, including areal dimensions, depths, salinity and temperature regimes, and 

other documentation that supports your determination of the water body type where each cooling water 

intake structure is located; 

(ii) Identification and characterization of the source waterbody's hydrological and geomorphological 

features, as well as the methods you used to conduct any physical studies to determine your intake's 

area of influence within the waterbody and the results of such studies; 

(iii) Locational maps; and 

(iv) For new offshore oil and gas facilities that are not fixed facilities, a narrative description and/or 

locational maps providing information on predicted locations within the waterbody during the permit term 

in sufficient detail for the Director to determine the appropriateness of additional impingement 

requirements under §125.134(b)(4). 

(3) Cooling water intake structure data . These include: 

(i) A narrative description of the configuration of each of your cooling water intake structures and where 

it is located in the water body and in the water column; 

(ii) Latitude and longitude in degrees, minutes, and seconds for each of your cooling water intake 

structures; 

(iii) A narrative description of the operation of each of your cooling water intake structures, including 

design intake flows, daily hours of operation, number of days of the year in operation and seasonal 

changes, if applicable; 

(iv) A flow distribution and water balance diagram that includes all sources of water to the facility, 

recirculating flows, and discharges; and 

(v) Engineering drawings of the cooling water intake structure. 

(4) Source water baseline biological characterization data. This information is required to characterize 

the biological community in the vicinity of the cooling water intake structure and to characterize the 

operation of the cooling water intake structures. The Director may also use this information in 

subsequent permit renewal proceedings to determine if your Design and Construction Technology Plan 

as required in §125.86(b)(4) or §125.136(b)(3) of this chapter should be revised. This supporting 

information must include existing data (if they are available). However, you may supplement the data 

using newly conducted field studies if you choose to do so. The information you submit must include: 

(i) A list of the data in paragraphs (r)(4)(ii) through (vi) of this section that are not available and efforts 

made to identify sources of the data; 

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(ii) A list of species (or relevant taxa) for all life stages and their relative abundance in the vicinity of the 

cooling water intake structure; 

(iii) Identification of the species and life stages that would be most susceptible to impingement and 

entrainment. Species evaluated should include the forage base as well as those most important in terms 

of significance to commercial and recreational fisheries; 

(iv) Identification and evaluation of the primary period of reproduction, larval recruitment, and period of 

peak abundance for relevant taxa; 

(v) Data representative of the seasonal and daily activities (e.g., feeding and water column migration) of 

biological organisms in the vicinity of the cooling water intake structure; 

(vi) Identification of all threatened, endangered, and other protected species that might be susceptible to 

impingement and entrainment at your cooling water intake structures; 

(vii) Documentation of any public participation or consultation with Federal or State agencies undertaken 

in development of the plan; and 

(viii) If you supplement the information requested in paragraph (r)(4)(i) of this section with data collected 

using field studies, supporting documentation for the Source Water Baseline Biological Characterization 

must include a description of all methods and quality assurance procedures for sampling, and data 

analysis including a description of the study area; taxonomic identification of sampled and evaluated 

biological assemblages (including all life stages of fish and shellfish); and sampling and data analysis 

methods. The sampling and/or data analysis methods you use must be appropriate for a quantitative 

survey and based on consideration of methods used in other biological studies performed within the 

same source water body. The study area should include, at a minimum, the area of influence of the 

cooling water intake structure. 

(5) Cooling water system data. Phase II existing facilities as defined in part 125, subpart J of this chapter 

must provide the following information for each cooling water intake structure they use: 

(i) A narrative description of the operation of the cooling water system, its relationship to cooling water 

intake structures, the proportion of the design intake flow that is used in the system, the number of days 

of the year the cooling water system is in operation and seasonal changes in the operation of the 

system, if applicable; and 

(ii) Design and engineering calculations prepared by a qualified professional and supporting data to 

support the description required by paragraph (r)(5)(i) of this section. 

[48 FR 14153, Apr. 1, 1983] 

Editorial Note: For Federal Register citations affecting §122.21, see the List of CFR Sections 

Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov. 

Effective Date Note: At 72 FR 37109, July 9, 2007, §122.21(r)(1)(ii) and (r)(5) were suspended. 

§ 122.22 Signatories to permit applications and reports (applicable to State programs, 

see §123.25). 

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(a) Applications. All permit applications shall be signed as follows: 

(1) For a corporation. By a responsible corporate officer. For the purpose of this section, a responsible 

corporate officer means: (i) A president, secretary, treasurer, or vice-president of the corporation in 

charge of a principal business function, or any other person who perfoms similar policy- or decisionmaking functions for the corporation, or (ii) the manager of one or more manufacturing, production, or 

operating facilities, provided, the manager is authorized to make management decisions which govern 

the operation of the regulated facility including having the explicit or implicit duty of making major capital 

investment recommendations, and initiating and directing other comprehensive measures to assure long 

term environmental compliance with environmental laws and regulations; the manager can ensure that 

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the necessary systems are established or actions taken to gather complete and accurate information for 

permit application requirements; and where authority to sign documents has been assigned or delegated 

to the manager in accordance with corporate procedures. 

Note: EPA does not require specific assignments or delegations of authority to responsible 

corporate officers identified in §122.22(a)(1)(i). The Agency will presume that these 

responsible corporate officers have the requisite authority to sign permit applications unless 

the corporation has notified the Director to the contrary. Corporate procedures governing 

authority to sign permit applications may provide for assignment or delegation to applicable 

corporate positions under §122.22(a)(1)(ii) rather than to specific individuals.

(2) For a partnership or sole proprietorship. By a general partner or the proprietor, respectively; or 

(3) For a municipality, State, Federal, or other public agency. By either a principal executive officer or 

ranking elected official. For purposes of this section, a principal executive officer of a Federal agency 

includes: (i) The chief executive officer of the agency, or (ii) a senior executive officer having 

responsibility for the overall operations of a principal geographic unit of the agency (e.g., Regional 

Administrators of EPA). 

(b) All reports required by permits, and other information requested by the Director shall be signed by a 

person described in paragraph (a) of this section, or by a duly authorized representative of that person. 

A person is a duly authorized representative only if: 

(1) The authorization is made in writing by a person described in paragraph (a) of this section; 

(2) The authorization specifies either an individual or a position having responsibility for the overall 

operation of the regulated facility or activity such as the position of plant manager, operator of a well or a 

well field, superintendent, position of equivalent responsibility, or an individual or position having overall 

responsibility for environmental matters for the company, (A duly authorized representative may thus be 

either a named individual or any individual occupying a named position.) and, 

(3) The written authorization is submitted to the Director. 

(c) Changes to authorization. If an authorization under paragraph (b) of this section is no longer accurate 

because a different individual or position has responsibility for the overall operation of the facility, a new 

authorization satisfying the requirements of paragraph (b) of this section must be submitted to the 

Director prior to or together with any reports, information, or applications to be signed by an authorized 

representative. 

(d) Certification. Any person signing a document under paragraph (a) or (b) of this section shall make 

the following certification: 

I certify under penalty of law that this document and all attachments were prepared under my 

direction or supervision in accordance with a system designed to assure that qualified 

personnel properly gather and evaluate the information submitted. Based on my inquiry of the 

person or persons who manage the system, or those persons directly responsible for 

gathering the information, the information submitted is, to the best of my knowledge and 

belief, true, accurate, and complete. I am aware that there are significant penalties for 

submitting false information, including the possibility of fine and imprisonment for knowing 

violations. 

(Clean Water Act (33 U.S.C. 1251 et seq. ), Safe Drinking Water Act (42 U.S.C. 300f et seq. ), Clean Air 

Act (42 U.S.C. 7401 et seq. ), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq. )) 

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 49 FR 38047, Sept. 29, 1984; 

50 FR 6941, Feb. 19, 1985; 55 FR 48063, Nov. 16, 1990; 65 FR 30907, May 15, 2000] 

§ 122.23 Concentrated animal feeding operations (applicable to State NPDES 

programs, see §123.25). 

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(a) Scope. Concentrated animal feeding operations (CAFOs), as defined in paragraph (b) of this section 

or designated in accordance with paragraph (c) of this section, are point sources, subject to NPDES 

permitting requirements as provided in this section. Once an animal feeding operation is defined as a 

CAFO for at least one type of animal, the NPDES requirements for CAFOs apply with respect to all 

animals in confinement at the operation and all manure, litter, and process wastewater generated by 

those animals or the production of those animals, regardless of the type of animal. 

(b) Definitions applicable to this section: 

(1) Animal feeding operation (“AFO”) means a lot or facility (other than an aquatic animal production 

facility) where the following conditions are met: 

(i) Animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or 

maintained for a total of 45 days or more in any 12-month period, and 

(ii) Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing 

season over any portion of the lot or facility. 

(2) Concentrated animal feeding operation (“CAFO”) means an AFO that is defined as a Large CAFO or 

as a Medium CAFO by the terms of this paragraph, or that is designated as a CAFO in accordance with 

paragraph (c) of this section. Two or more AFOs under common ownership are considered to be a 

single AFO for the purposes of determining the number of animals at an operation, if they adjoin each 

other or if they use a common area or system for the disposal of wastes. 

(3) The term land application area means land under the control of an AFO owner or operator, whether it 

is owned, rented, or leased, to which manure, litter or process wastewater from the production area is or 

may be applied. 

(4) Large concentrated animal feeding operation (“Large CAFO”). An AFO is defined as a Large CAFO if 

it stables or confines as many as or more than the numbers of animals specified in any of the following 

categories: 

(i) 700 mature dairy cows, whether milked or dry; 

(ii) 1,000 veal calves; 

(iii) 1,000 cattle other than mature dairy cows or veal calves. Cattle includes but is not limited to heifers, 

steers, bulls and cow/calf pairs; 

(iv) 2,500 swine each weighing 55 pounds or more; 

(v) 10,000 swine each weighing less than 55 pounds; 

(vi) 500 horses; 

(vii) 10,000 sheep or lambs; 

(viii) 55,000 turkeys; 

(ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure handling system; 

(x) 125,000 chickens (other than laying hens), if the AFO uses other than a liquid manure handling 

system; 

(xi) 82,000 laying hens, if the AFO uses other than a liquid manure handling system; 

(xii) 30,000 ducks (if the AFO uses other than a liquid manure handling system); or 

(xiii) 5,000 ducks (if the AFO uses a liquid manure handling system). 

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(5) The term manure is defined to include manure, bedding, compost and raw materials or other 

materials commingled with manure or set aside for disposal. 

(6) Medium concentrated animal feeding operation (“Medium CAFO”). The term Medium CAFO includes 

any AFO with the type and number of animals that fall within any of the ranges listed in paragraph (b)(6)

(i) of this section and which has been defined or designated as a CAFO. An AFO is defined as a Medium 

CAFO if: 

(i) The type and number of animals that it stables or confines falls within any of the following ranges: 

(A) 200 to 699 mature dairy cows, whether milked or dry; 

(B) 300 to 999 veal calves; 

(C) 300 to 999 cattle other than mature dairy cows or veal calves. Cattle includes but is not limited to 

heifers, steers, bulls and cow/calf pairs; 

(D) 750 to 2,499 swine each weighing 55 pounds or more; 

(E) 3,000 to 9,999 swine each weighing less than 55 pounds; 

(F) 150 to 499 horses; 

(G) 3,000 to 9,999 sheep or lambs; 

(H) 16,500 to 54,999 turkeys; 

(I) 9,000 to 29,999 laying hens or broilers, if the AFO uses a liquid manure handling system; 

(J) 37,500 to 124,999 chickens (other than laying hens), if the AFO uses other than a liquid manure 

handling system; 

(K) 25,000 to 81,999 laying hens, if the AFO uses other than a liquid manure handling system; 

(L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid manure handling system); or 

(M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling system); and 

(ii) Either one of the following conditions are met: 

(A) Pollutants are discharged into waters of the United States through a man-made ditch, flushing 

system, or other similar man-made device; or 

(B) Pollutants are discharged directly into waters of the United States which originate outside of and 

pass over, across, or through the facility or otherwise come into direct contact with the animals confined 

in the operation. 

(7) Process wastewater means water directly or indirectly used in the operation of the AFO for any or all 

of the following: spillage or overflow from animal or poultry watering systems; washing, cleaning, or 

flushing pens, barns, manure pits, or other AFO facilities; direct contact swimming, washing, or spray 

cooling of animals; or dust control. Process wastewater also includes any water which comes into 

contact with any raw materials, products, or byproducts including manure, litter, feed, milk, eggs or 

bedding. 

(8) Production area means that part of an AFO that includes the animal confinement area, the manure 

storage area, the raw materials storage area, and the waste containment areas. The animal confinement 

area includes but is not limited to open lots, housed lots, feedlots, confinement houses, stall barns, free 

stall barns, milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal 

walkways, and stables. The manure storage area includes but is not limited to lagoons, runoff ponds, 

storage sheds, stockpiles, under house or pit storages, liquid impoundments, static piles, and 

composting piles. The raw materials storage area includes but is not limited to feed silos, silage bunkers, 

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and bedding materials. The waste containment area includes but is not limited to settling basins, and 

areas within berms and diversions which separate uncontaminated storm water. Also included in the 

definition of production area is any egg washing or egg processing facility, and any area used in the 

storage, handling, treatment, or disposal of mortalities. 

(9) Small concentrated animal feeding operation (“Small CAFO”). An AFO that is designated as a CAFO 

and is not a Medium CAFO. 

(c) How may an AFO be designated as a CAFO? The appropriate authority ( i.e. , State Director or 

Regional Administrator, or both, as specified in paragraph (c)(1) of this section) may designate any AFO 

as a CAFO upon determining that it is a significant contributor of pollutants to waters of the United 

States. 

(1) Who may designate? —(i) Approved States. In States that are approved or authorized by EPA under 

Part 123, CAFO designations may be made by the State Director. The Regional Administrator may also 

designate CAFOs in approved States, but only where the Regional Administrator has determined that 

one or more pollutants in the AFO's discharge contributes to an impairment in a downstream or adjacent 

State or Indian country water that is impaired for that pollutant. 

(ii) States with no approved program. The Regional Administrator may designate CAFOs in States that 

do not have an approved program and in Indian country where no entity has expressly demonstrated 

authority and has been expressly authorized by EPA to implement the NPDES program. 

(2) In making this designation, the State Director or the Regional Administrator shall consider the 

following factors: 

(i) The size of the AFO and the amount of wastes reaching waters of the United States; 

(ii) The location of the AFO relative to waters of the United States; 

(iii) The means of conveyance of animal wastes and process waste waters into waters of the United 

States; 

(iv) The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of 

animal wastes manure and process waste waters into waters of the United States; and 

(v) Other relevant factors. 

(3) No AFO shall be designated under this paragraph unless the State Director or the Regional 

Administrator has conducted an on-site inspection of the operation and determined that the operation 

should and could be regulated under the permit program. In addition, no AFO with numbers of animals 

below those established in paragraph (b)(6) of this section may be designated as a CAFO unless: 

(i) Pollutants are discharged into waters of the United States through a manmade ditch, flushing system, 

or other similar manmade device; or 

(ii) Pollutants are discharged directly into waters of the United States which originate outside of the 

facility and pass over, across, or through the facility or otherwise come into direct contact with the 

animals confined in the operation. 

(d) Who must seek coverage under an NPDES permit? —(1) Permit Requirement. The owner or 

operator of a CAFO must seek coverage under an NPDES permit if the CAFO discharges or proposes to 

discharge. A CAFO proposes to discharge if it is designed, constructed, operated, or maintained such 

that a discharge will occur. Specifically, the CAFO owner or operator must either apply for an individual 

NPDES permit or submit a notice of intent for coverage under an NPDES general permit. If the Director 

has not made a general permit available to the CAFO, the CAFO owner or operator must submit an 

application for an individual permit to the Director. 

(2) Information to submit with permit application or notice of intent. An application for an individual permit 

must include the information specified in §122.21. A notice of intent for a general permit must include the 

information specified in §§122.21 and 122.28. 

(3) Information to submit with permit application. A permit application for an individual permit must 

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include the information specified in §122.21. A notice of intent for a general permit must include the 

information specified in §§122.21 and 122.28. 

(e) Land application discharges from a CAFO are subject to NPDES requirements. The discharge of 

manure, litter or process wastewater to waters of the United States from a CAFO as a result of the 

application of that manure, litter or process wastewater by the CAFO to land areas under its control is a 

discharge from that CAFO subject to NPDES permit requirements, except where it is an agricultural 

storm water discharge as provided in 33 U.S.C. 1362(14). For purposes of this paragraph, where the 

manure, litter or process wastewater has been applied in accordance with site specific nutrient 

management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter 

or process wastewater, as specified in §122.42(e)(1)(vi)–(ix), a precipitation-related discharge of 

manure, litter or process wastewater from land areas under the control of a CAFO is an agricultural 

stormwater discharge. 

(1) For unpermitted Large CAFOs, a precipitation-related discharge of manure, litter, or process 

wastewater from land areas under the control of a CAFO shall be considered an agricultural stormwater 

discharge only where the manure, litter, or process wastewater has been land applied in accordance 

with site-specific nutrient management practices that ensure appropriate agricultural utilization of the 

nutrients in the manure, litter, or process wastewater, as specified in §122.42(e)(1)(vi) through (ix). 

(2) Unpermitted Large CAFOs must maintain documentation specified in §122.42(e)(1)(ix) either on site 

or at a nearby office, or otherwise make such documentation readily available to the Director or Regional 

Administrator upon request. 

(f) When must the owner or operator of a CAFO seek coverage under an NPDES permit? Any CAFO 

that is required to seek permit coverage under paragraph (d)(1) of this section must seek coverage when 

the CAFO proposes to discharge, unless a later deadline is specified below. 

(1) Operations defined as CAFOs prior to April 14, 2003. For operations defined as CAFOs under 

regulations that were in effect prior to April 14, 2003, the owner or operator must have or seek to obtain 

coverage under an NPDES permit as of April 14, 2003, and comply with all applicable NPDES 

requirements, including the duty to maintain permit coverage in accordance with paragraph (g) of this 

section. 

(2) Operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that 

date. For all operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to 

that date, the owner or operator of the CAFO must seek to obtain coverage under an NPDES permit by 

February 27, 2009. 

(3) Operations that become defined as CAFOs after April 14, 2003, but which are not new sources. For 

a newly constructed CAFO and for an AFO that makes changes to its operations that result in its 

becoming defined as a CAFO for the first time after April 14, 2003, but is not a new source, the owner or 

operator must seek to obtain coverage under an NPDES permit, as follows: 

(i) For newly constructed operations not subject to effluent limitations guidelines, 180 days prior to the 

time CAFO commences operation; 

(ii) For other operations (e.g., resulting from an increase in the number of animals), as soon as possible, 

but no later than 90 days after becoming defined as a CAFO; or 

(iii) If an operational change that makes the operation a CAFO would not have made it a CAFO prior to 

April 14, 2003, the operation has until February 27, 2009, or 90 days after becoming defined as a CAFO, 

whichever is later. 

(4) New sources. The owner or operator of a new source must seek to obtain coverage under a permit at 

least 180 days prior to the time that the CAFO commences operation. 

(5) Operations that are designated as CAFOs. For operations designated as a CAFO in accordance with 

paragraph (c) of this section, the owner or operator must seek to obtain coverage under a permit no later 

than 90 days after receiving notice of the designation. 

(g) Duty to maintain permit coverage. No later than 180 days before the expiration of the permit, or as 

provided by the Director, any permitted CAFO must submit an application to renew its permit, in 

accordance with §122.21(d), unless the CAFO will not discharge or propose to discharge upon 

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expiration of the permit. 

(h) Procedures for CAFOs seeking coverage under a general permit. (1) CAFO owners or operators 

must submit a notice of intent when seeking authorization to discharge under a general permit in 

accordance with §122.28(b). The Director must review notices of intent submitted by CAFO owners or 

operators to ensure that the notice of intent includes the information required by §122.21(i)(1), including 

a nutrient management plan that meets the requirements of §122.42(e) and applicable effluent 

limitations and standards, including those specified in 40 CFR part 412. When additional information is 

necessary to complete the notice of intent or clarify, modify, or supplement previously submitted 

material, the Director may request such information from the owner or operator. If the Director makes a 

preliminary determination that the notice of intent meets the requirements of §§122.21(i)(1) and 122.42

(e), the Director must notify the public of the Director's proposal to grant coverage under the permit to 

the CAFO and make available for public review and comment the notice of intent submitted by the 

CAFO, including the CAFO's nutrient management plan, and the draft terms of the nutrient management 

plan to be incorporated into the permit. The process for submitting public comments and hearing 

requests, and the hearing process if a request for a hearing is granted, must follow the procedures 

applicable to draft permits set forth in 40 CFR 124.11 through 124.13. The Director may establish, either 

by regulation or in the general permit, an appropriate period of time for the public to comment and 

request a hearing that differs from the time period specified in 40 CFR 124.10. The Director must 

respond to significant comments received during the comment period, as provided in 40 CFR 124.17, 

and, if necessary, require the CAFO owner or operator to revise the nutrient management plan in order 

to be granted permit coverage. When the Director authorizes coverage for the CAFO owner or operator 

under the general permit, the terms of the nutrient management plan shall become incorporated as 

terms and conditions of the permit for the CAFO. The Director shall notify the CAFO owner or operator 

and inform the public that coverage has been authorized and of the terms of the nutrient management 

plan incorporated as terms and conditions of the permit applicable to the CAFO. 

(2) For EPA-issued permits only. The Regional Administrator shall notify each person who has submitted 

written comments on the proposal to grant coverage and the draft terms of the nutrient management 

plan or requested notice of the final permit decision. Such notification shall include notice that coverage 

has been authorized and of the terms of the nutrient management plan incorporated as terms and 

conditions of the permit applicable to the CAFO. 

(3) Nothing in this paragraph (h) shall affect the authority of the Director to require an individual permit 

under §122.28(b)(3). 

(i) No discharge certification option. (1) The owner or operator of a CAFO that meets the eligibility 

criteria in paragraph (i)(2) of this section may certify to the Director that the CAFO does not discharge or 

propose to discharge. A CAFO owner or operator who certifies that the CAFO does not discharge or 

propose to discharge is not required to seek coverage under an NPDES permit pursuant to paragraph 

(d)(1) of this section, provided that the CAFO is designed, constructed, operated, and maintained in 

accordance with the requirements of paragraphs (i)(2) and (3) of this section, and subject to the 

limitations in paragraph (i)(4) of this section. 

(2) Eligibility criteria. In order to certify that a CAFO does not discharge or propose to discharge, the 

owner or operator of a CAFO must document, based on an objective assessment of the conditions at the 

CAFO, that the CAFO is designed, constructed, operated, and maintained in a manner such that the 

CAFO will not discharge, as follows: 

(i) The CAFO's production area is designed, constructed, operated, and maintained so as not to 

discharge. The CAFO must maintain documentation that demonstrates that: 

(A) Any open manure storage structures are designed, constructed, operated, and maintained to 

achieve no discharge based on a technical evaluation in accordance with the elements of the technical 

evaluation set forth in 40 CFR 412.46(a)(1)(i) through (viii); 

(B) Any part of the CAFO's production area that is not addressed by paragraph (i)(2)(i)(A) of this section 

is designed, constructed, operated, and maintained such that there will be no discharge of manure, litter, 

or process wastewater; and 

(C) The CAFO implements the additional measures set forth in 40 CFR 412.37(a) and (b); 

(ii) The CAFO has developed and is implementing an up-to-date nutrient management plan to ensure no 

discharge from the CAFO, including from all land application areas under the control of the CAFO, that 

addresses, at a minimum, the following: 

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(A) The elements of §122.42(e)(1)(i) through (ix) and 40 CFR 412.37(c); and 

(B) All site-specific operation and maintenance practices necessary to ensure no discharge, including 

any practices or conditions established by a technical evaluation pursuant to paragraph (i)(2)(i)(A) of this 

section; and 

(iii) The CAFO must maintain documentation required by this paragraph either on site or at a nearby 

office, or otherwise make such documentation readily available to the Director or Regional Administrator 

upon request. 

(3) Submission to the Director. In order to certify that a CAFO does not discharge or propose to 

discharge, the CAFO owner or operator must complete and submit to the Director, by certified mail or 

equivalent method of documentation, a certification that includes, at a minimum, the following 

information: 

(i) The legal name, address and phone number of the CAFO owner or operator (see §122.21(b)); 

(ii) The CAFO name and address, the county name and the latitude and longitude where the CAFO is 

located; 

(iii) A statement that describes the basis for the CAFO's certification that it satisfies the eligibility 

requirements identified in paragraph (i)(2) of this section; and 

(iv) The following certification statement: “I certify under penalty of law that I am the owner or operator of 

a concentrated animal feeding operation (CAFO), identified as [Name of CAFO], and that said CAFO 

meets the requirements of 40 CFR 122.23(i). I have read and understand the eligibility requirements of 

40 CFR 122.23(i)(2) for certifying that a CAFO does not discharge or propose to discharge and further 

certify that this CAFO satisfies the eligibility requirements. As part of this certification, I am including the 

information required by 40 CFR 122.23(i)(3). I also understand the conditions set forth in 40 CFR 122.23

(i)(4), (5) and (6) regarding loss and withdrawal of certification. I certify under penalty of law that this 

document and all other documents required for this certification were prepared under my direction or 

supervision and that qualified personnel properly gathered and evaluated the information submitted. 

Based upon my inquiry of the person or persons directly involved in gathering and evaluating the 

information, the information submitted is to the best of my knowledge and belief true, accurate and 

complete. I am aware there are significant penalties for submitting false information, including the 

possibility of fine and imprisonment for knowing violations.”; and 

(v) The certification must be signed in accordance with the signatory requirements of 40 CFR 122.22. 

(4) Term of certification. A certification that meets the requirements of paragraphs (i)(2) and (i)(3) of this 

section shall become effective on the date it is submitted, unless the Director establishes an effective 

date of up to 30 days after the date of submission. Certification will remain in effect for five years or until 

the certification is no longer valid or is withdrawn, whichever occurs first. A certification is no longer valid 

when a discharge has occurred or when the CAFO ceases to meet the eligibility criteria in paragraph (i)

(2) of this section. 

(5) Withdrawal of certification. (i) At any time, a CAFO may withdraw its certification by notifying the 

Director by certified mail or equivalent method of documentation. A certification is withdrawn on the date 

the notification is submitted to the Director. The CAFO does not need to specify any reason for the 

withdrawal in its notification to the Director. 

(ii) If a certification becomes invalid in accordance with paragraph (i)(4) of this section, the CAFO must 

withdraw its certification within three days of the date on which the CAFO becomes aware that the 

certification is invalid. Once a CAFO's certification is no longer valid, the CAFO is subject to the 

requirement in paragraph (d)(1) of this section to seek permit coverage if it discharges or proposes to 

discharge. 

(6) Recertification. A previously certified CAFO that does not discharge or propose to discharge may 

recertify in accordance with paragraph (i) of this section, except that where the CAFO has discharged, 

the CAFO may only recertify if the following additional conditions are met: 

(i) The CAFO had a valid certification at the time of the discharge; 

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(ii) The owner or operator satisfies the eligibility criteria of paragraph (i)(2) of this section, including any 

necessary modifications to the CAFO's design, construction, operation, and/or maintenance to 

permanently address the cause of the discharge and ensure that no discharge from this cause occurs in 

the future; 

(iii) The CAFO has not previously recertified after a discharge from the same cause; 

(iv) The owner or operator submits to the Director for review the following documentation: a description 

of the discharge, including the date, time, cause, duration, and approximate volume of the discharge, 

and a detailed explanation of the steps taken by the CAFO to permanently address the cause of the 

discharge in addition to submitting a certification in accordance with paragraph (i)(3) of this section; and 

(v) Notwithstanding paragraph (i)(4) of this section, a recertification that meets the requirements of 

paragraphs (i)(6)(iii) and (i)(6)(iv) of this section shall only become effective 30 days from the date of 

submission of the recertification documentation. 

(j) Effect of certification. (1) An unpermitted CAFO certified in accordance with paragraph (i) of this 

section is presumed not to propose to discharge. If such a CAFO does discharge, it is not in violation of 

the requirement that CAFOs that propose to discharge seek permit coverage pursuant to paragraphs (d)

(1) and (f) of this section, with respect to that discharge. In all instances, the discharge of a pollutant 

without a permit is a violation of the Clean Water Act section 301(a) prohibition against unauthorized 

discharges from point sources. 

(2) In any enforcement proceeding for failure to seek permit coverage under paragraphs (d)(1) or (f) of 

this section that is related to a discharge from an unpermitted CAFO, the burden is on the CAFO to 

establish that it did not propose to discharge prior to the discharge when the CAFO either did not submit 

certification documentation as provided in paragraph (i)(3) or (i)(6)(iv) of this section within at least five 

years prior to the discharge, or withdrew its certification in accordance with paragraph (i)(5) of this 

section. Design, construction, operation, and maintenance in accordance with the criteria of paragraph 

(i)(2) of this section satisfies this burden. 

[68 FR 7265, Feb. 12, 2003, as amended at 71 FR 6984, Feb. 10, 2006; 72 FR 40250, July 24, 2007; 73 

FR 70480, Nov. 20, 2008] 

§ 122.24 Concentrated aquatic animal production facilities (applicable to State NPDES 

programs, see §123.25). 

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(a) Permit requirement. Concentrated aquatic animal production facilities, as defined in this section, are 

point sources subject to the NPDES permit program. 

(b) Definition. Concentrated aquatic animal production facility means a hatchery, fish farm, or other 

facility which meets the criteria in appendix C of this part, or which the Director designates under 

paragraph (c) of this section. 

(c) Case-by-case designation of concentrated aquatic animal production facilities. (1) The Director may 

designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal 

production facility upon determining that it is a significant contributor of pollution to waters of the United 

States. In making this designation the Director shall consider the following factors: 

(i) The location and quality of the receiving waters of the United States; 

(ii) The holding, feeding, and production capacities of the facility; 

(iii) The quantity and nature of the pollutants reaching waters of the United States; and 

(iv) Other relevant factors. 

(2) A permit application shall not be required from a concentrated aquatic animal production facility 

designated under this paragraph until the Director has conducted on-site inspection of the facility and 

has determined that the facility should and could be regulated under the permit program. 

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[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30907, May 15, 2000] 

§ 122.25 Aquaculture projects (applicable to State NPDES programs, see §123.25). 

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(a) Permit requirement. Discharges into aquaculture projects, as defined in this section, are subject to 

the NPDES permit program through section 318 of CWA, and in accordance with 40 CFR part 125, 

subpart B. 

(b) Definitions. (1) Aquaculture project means a defined managed water area which uses discharges of 

pollutants into that designated area for the maintenance or production of harvestable freshwater, 

estuarine, or marine plants or animals. 

(2) Designated project area means the portions of the waters of the United States within which the 

permittee or permit applicant plans to confine the cultivated species, using a method or plan or operation 

(including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is 

expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy 

increased growth attributable to the discharge of pollutants, and be harvested within a defined 

geographic area. 

§ 122.26 Storm water discharges (applicable to State NPDES programs, see §123.25). 

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(a) Permit requirement. (1) Prior to October 1, 1994, discharges composed entirely of storm water shall 

not be required to obtain a NPDES permit except: 

(i) A discharge with respect to which a permit has been issued prior to February 4, 1987; 

(ii) A discharge associated with industrial activity (see §122.26(a)(4)); 

(iii) A discharge from a large municipal separate storm sewer system; 

(iv) A discharge from a medium municipal separate storm sewer system; 

(v) A discharge which the Director, or in States with approved NPDES programs, either the Director or 

the EPA Regional Administrator, determines to contribute to a violation of a water quality standard or is a 

significant contributor of pollutants to waters of the United States. This designation may include a 

discharge from any conveyance or system of conveyances used for collecting and conveying storm 

water runoff or a system of discharges from municipal separate storm sewers, except for those 

discharges from conveyances which do not require a permit under paragraph (a)(2) of this section or 

agricultural storm water runoff which is exempted from the definition of point source at §122.2. 

The Director may designate discharges from municipal separate storm sewers on a system-wide or 

jurisdiction-wide basis. In making this determination the Director may consider the following factors: 

(A) The location of the discharge with respect to waters of the United States as defined at 40 CFR 122.2. 

(B) The size of the discharge; 

(C) The quantity and nature of the pollutants discharged to waters of the United States; and 

(D) Other relevant factors. 

(2) The Director may not require a permit for discharges of storm water runoff from the following: 

(i) Mining operations 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 

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conveying precipitation runoff and which are not contaminated by contact with or that have not come into 

contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste 

products located on the site of such operations, except in accordance with paragraph (c)(1)(iv) of this 

section. 

(ii) All field activities or operations associated with oil and gas exploration, production, processing, or 

treatment operations or transmission facilities, including activities necessary to prepare a site for drilling 

and for the movement and placement of drilling equipment, whether or not such field activities or 

operations may be considered to be construction activities, except in accordance with paragraph (c)(1)

(iii) of this section. Discharges of sediment from construction activities associated with oil and gas 

exploration, production, processing, or treatment operations or transmission facilities are not subject to 

the provisions of paragraph (c)(1)(iii)(C) of this section. 

Note to paragraph (a)(2)(ii): EPA encourages operators of oil and gas field activities or 

operations to implement and maintain Best Management Practices (BMPs) to minimize 

discharges of pollutants, including sediment, in storm water both during and after construction 

activities to help ensure protection of surface water quality during storm events. Appropriate 

controls would be those suitable to the site conditions and consistent with generally accepted 

engineering design criteria and manufacturer specifications. Selection of BMPs could also be 

affected by seasonal or climate conditions.

(3) Large and medium municipal separate storm sewer systems. (i) Permits must be obtained for all 

discharges from large and medium municipal separate storm sewer systems. 

(ii) The Director may either issue one system-wide permit covering all discharges from municipal 

separate storm sewers within a large or medium municipal storm sewer system or issue distinct permits 

for appropriate categories of discharges within a large or medium municipal separate storm sewer 

system including, but not limited to: all discharges owned or operated by the same municipality; located 

within the same jurisdiction; all discharges within a system that discharge to the same watershed; 

discharges within a system that are similar in nature; or for individual discharges from municipal 

separate storm sewers within the system. 

(iii) The operator of a discharge from a municipal separate storm sewer which is part of a large or 

medium municipal separate storm sewer system must either: 

(A) Participate in a permit application (to be a permittee or a co-permittee) with one or more other 

operators of discharges from the large or medium municipal storm sewer system which covers all, or a 

portion of all, discharges from the municipal separate storm sewer system; 

(B) Submit a distinct permit application which only covers discharges from the municipal separate storm 

sewers for which the operator is responsible; or 

(C) A regional authority may be responsible for submitting a permit application under the following 

guidelines: 

( 1 ) The regional authority together with co-applicants shall have authority over a storm water 

management program that is in existence, or shall be in existence at the time part 1 of the application is 

due; 

( 2 ) The permit applicant or co-applicants shall establish their ability to make a timely submission of part 

1 and part 2 of the municipal application; 

( 3 ) Each of the operators of municipal separate storm sewers within the systems described in 

paragraphs (b)(4) (i), (ii), and (iii) or (b)(7) (i), (ii), and (iii) of this section, that are under the purview of 

the designated regional authority, shall comply with the application requirements of paragraph (d) of this 

section. 

(iv) One permit application may be submitted for all or a portion of all municipal separate storm sewers 

within adjacent or interconnected large or medium municipal separate storm sewer systems. The 

Director may issue one system-wide permit covering all, or a portion of all municipal separate storm 

sewers in adjacent or interconnected large or medium municipal separate storm sewer systems. 

(v) Permits for all or a portion of all discharges from large or medium municipal separate storm sewer 

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systems that are issued on a system-wide, jurisdiction-wide, watershed or other basis may specify 

different conditions relating to different discharges covered by the permit, including different 

management programs for different drainage areas which contribute storm water to the system. 

(vi) Co-permittees need only comply with permit conditions relating to discharges from the municipal 

separate storm sewers for which they are operators. 

(4) Discharges through large and medium municipal separate storm sewer systems. In addition to 

meeting the requirements of paragraph (c) of this section, an operator of a storm water discharge 

associated with industrial activity which discharges through a large or medium municipal separate storm 

sewer system shall submit, to the operator of the municipal separate storm sewer system receiving the 

discharge no later than May 15, 1991, or 180 days prior to commencing such discharge: the name of the 

facility; a contact person and phone number; the location of the discharge; a description, including 

Standard Industrial Classification, which best reflects the principal products or services provided by each 

facility; and any existing NPDES permit number. 

(5) Other municipal separate storm sewers. The Director may issue permits for municipal separate storm 

sewers that are designated under paragraph (a)(1)(v) of this section on a system-wide basis, jurisdictionwide basis, watershed basis or other appropriate basis, or may issue permits for individual discharges. 

(6) Non-municipal separate storm sewers. For storm water discharges associated with industrial activity 

from point sources which discharge through a non-municipal or non-publicly owned separate storm 

sewer system, the Director, in his discretion, may issue: a single NPDES permit, with each discharger a 

co-permittee to a permit issued to the operator of the portion of the system that discharges into waters of 

the United States; or, individual permits to each discharger of storm water associated with industrial 

activity through the non-municipal conveyance system. 

(i) All storm water discharges associated with industrial activity that discharge through a storm water 

discharge system that is not a municipal separate storm sewer must be covered by an individual permit, 

or a permit issued to the operator of the portion of the system that discharges to waters of the United 

States, with each discharger to the non-municipal conveyance a co-permittee to that permit. 

(ii) Where there is more than one operator of a single system of such conveyances, all operators of 

storm water discharges associated with industrial activity must submit applications. 

(iii) Any permit covering more than one operator shall identify the effluent limitations, or other permit 

conditions, if any, that apply to each operator. 

(7) Combined sewer systems. Conveyances that discharge storm water runoff combined with municipal 

sewage are point sources that must obtain NPDES permits in accordance with the procedures of 

§122.21 and are not subject to the provisions of this section. 

(8) Whether a discharge from a municipal separate storm sewer is or is not subject to regulation under 

this section shall have no bearing on whether the owner or operator of the discharge is eligible for 

funding under title II, title III or title VI of the Clean Water Act. See 40 CFR part 35, subpart I, appendix A

(b)H.2.j. 

(9)(i) On and after October 1, 1994, for discharges composed entirely of storm water, that are not 

required by paragraph (a)(1) of this section to obtain a permit, operators shall be required to obtain a 

NPDES permit only if: 

(A) The discharge is from a small MS4 required to be regulated pursuant to §122.32; 

(B) The discharge is a storm water discharge associated with small construction activity pursuant to 

paragraph (b)(15) of this section; 

(C) The Director, or in States with approved NPDES programs either the Director or the EPA Regional 

Administrator, determines that storm water controls are needed for the discharge based on wasteload 

allocations that are part of “total maximum daily loads” (TMDLs) that address the pollutant(s) of concern; 

or 

(D) The Director, or in States with approved NPDES programs either the Director or the EPA Regional 

Administrator, determines that the discharge, or category of discharges within a geographic area, 

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contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters 

of the United States. 

(ii) Operators of small MS4s designated pursuant to paragraphs (a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) 

of this section shall seek coverage under an NPDES permit in accordance with §§122.33 through 

122.35. Operators of non-municipal sources designated pursuant to paragraphs (a)(9)(i)(B), (a)(9)(i)(C), 

and (a)(9)(i)(D) of this section shall seek coverage under an NPDES permit in accordance with 

paragraph (c)(1) of this section. 

(iii) Operators of storm water discharges designated pursuant to paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) 

of this section shall apply to the Director for a permit within 180 days of receipt of notice, unless 

permission for a later date is granted by the Director (see §124.52(c) of this chapter). 

(b) Definitions. (1) Co-permittee means a permittee to a NPDES permit that is only responsible for permit 

conditions relating to the discharge for which it is operator. 

(2) Illicit discharge means any discharge to a municipal separate storm sewer that is not composed 

entirely of storm water except discharges pursuant to a NPDES permit (other than the NPDES permit for 

discharges from the municipal separate storm sewer) and discharges resulting from fire fighting 

activities. 

(3) Incorporated place means the District of Columbia, or a city, town, township, or village that is 

incorporated under the laws of the State in which it is located. 

(4) Large municipal separate storm sewer system means all municipal separate storm sewers that are 

either: 

(i) Located in an incorporated place with a population of 250,000 or more as determined by the 1990 

Decennial Census by the Bureau of the Census (Appendix F of this part); or 

(ii) Located in the counties listed in appendix H, except municipal separate storm sewers that are located 

in the incorporated places, townships or towns within such counties; or 

(iii) Owned or operated by a municipality other than those described in paragraph (b)(4) (i) or (ii) of this 

section and that are designated by the Director as part of the large or medium municipal separate storm 

sewer system due to the interrelationship between the discharges of the designated storm sewer and 

the discharges from municipal separate storm sewers described under paragraph (b)(4) (i) or (ii) of this 

section. In making this determination the Director may consider the following factors: 

(A) Physical interconnections between the municipal separate storm sewers; 

(B) The location of discharges from the designated municipal separate storm sewer relative to 

discharges from municipal separate storm sewers described in paragraph (b)(4)(i) of this section; 

(C) The quantity and nature of pollutants discharged to waters of the United States; 

(D) The nature of the receiving waters; and 

(E) Other relevant factors; or 

(iv) The Director may, upon petition, designate as a large municipal separate storm sewer system, 

municipal separate storm sewers located within the boundaries of a region defined by a storm water 

management regional authority based on a jurisdictional, watershed, or other appropriate basis that 

includes one or more of the systems described in paragraph (b)(4) (i), (ii), (iii) of this section. 

(5) Major municipal separate storm sewer outfall (or “major outfall”) means a municipal separate storm 

sewer outfall that discharges from a single pipe with an inside diameter of 36 inches or more or its 

equivalent (discharge from a single conveyance other than circular pipe which is associated with a 

drainage area of more than 50 acres); or for municipal separate storm sewers that receive storm water 

from lands zoned for industrial activity (based on comprehensive zoning plans or the equivalent), an 

outfall that discharges from a single pipe with an inside diameter of 12 inches or more or from its 

equivalent (discharge from other than a circular pipe associated with a drainage area of 2 acres or 

more). 

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(6) Major outfall means a major municipal separate storm sewer outfall. 

(7) Medium municipal separate storm sewer system means all municipal separate storm sewers that are 

either: 

(i) Located in an incorporated place with a population of 100,000 or more but less than 250,000, as 

determined by the 1990 Decennial Census by the Bureau of the Census (Appendix G of this part); or 

(ii) Located in the counties listed in appendix I, except municipal separate storm sewers that are located 

in the incorporated places, townships or towns within such counties; or 

(iii) Owned or operated by a municipality other than those described in paragraph (b)(7) (i) or (ii) of this 

section and that are designated by the Director as part of the large or medium municipal separate storm 

sewer system due to the interrelationship between the discharges of the designated storm sewer and 

the discharges from municipal separate storm sewers described under paragraph (b)(7) (i) or (ii) of this 

section. In making this determination the Director may consider the following factors: 

(A) Physical interconnections between the municipal separate storm sewers; 

(B) The location of discharges from the designated municipal separate storm sewer relative to 

discharges from municipal separate storm sewers described in paragraph (b)(7)(i) of this section; 

(C) The quantity and nature of pollutants discharged to waters of the United States; 

(D) The nature of the receiving waters; or 

(E) Other relevant factors; or 

(iv) The Director may, upon petition, designate as a medium municipal separate storm sewer system, 

municipal separate storm sewers located within the boundaries of a region defined by a storm water 

management regional authority based on a jurisdictional, watershed, or other appropriate basis that 

includes one or more of the systems described in paragraphs (b)(7) (i), (ii), (iii) of this section. 

(8) Municipal separate storm sewer means a conveyance or system of conveyances (including roads 

with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or 

storm drains): 

(i) Owned or operated by a State, city, town, borough, county, parish, district, association, or other public 

body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, 

storm water, or other wastes, including special districts under State law such as a sewer district, flood 

control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal 

organization, or a designated and approved management agency under section 208 of the CWA that 

discharges to waters of the United States; 

(ii) Designed or used for collecting or conveying storm water; 

(iii) Which is not a combined sewer; and 

(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as defined at 40 CFR 122.2. 

(9) Outfall means a point source as defined by 40 CFR 122.2 at the point where a municipal separate 

storm sewer discharges to waters of the United States and does not include open conveyances 

connecting two municipal separate storm sewers, or pipes, tunnels or other conveyances which connect 

segments of the same stream or other waters of the United States and are used to convey waters of the 

United States. 

(10) Overburden means any material of any nature, consolidated or unconsolidated, that overlies a 

mineral deposit, excluding topsoil or similar naturally-occurring surface materials that are not disturbed 

by mining operations. 

(11) Runoff coefficient means the fraction of total rainfall that will appear at a conveyance as runoff. 

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(12) Significant materials includes, but is not limited to: raw materials; fuels; materials such as solvents, 

detergents, and plastic pellets; finished materials such as metallic products; raw materials used in food 

processing or production; hazardous substances designated under section 101(14) of CERCLA; any 

chemical the facility is required to report pursuant to section 313 of title III of SARA; fertilizers; 

pesticides; and waste products such as ashes, slag and sludge that have the potential to be released 

with storm water discharges. 

(13) Storm water means storm water runoff, snow melt runoff, and surface runoff and drainage. 

(14) Storm water discharge associated with industrial activity means the discharge from any conveyance 

that is used for collecting and conveying storm water and that is directly related to manufacturing, 

processing or raw materials storage areas at an industrial plant. The term does not include discharges 

from facilities or activities excluded from the NPDES program under this part 122. For the categories of 

industries identified in this section, the term includes, but is not limited to, storm water discharges from 

industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw 

materials, manufactured products, waste material, or by-products used or created by the facility; material 

handling sites; refuse sites; sites used for the application or disposal of process waste waters (as 

defined at part 401 of this chapter); sites used for the storage and maintenance of material handling 

equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; 

manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and 

final products; and areas where industrial activity has taken place in the past and significant materials 

remain and are exposed to storm water. For the purposes of this paragraph, material handling activities 

include storage, loading and unloading, transportation, or conveyance of any raw material, intermediate 

product, final product, by-product or waste product. The term excludes areas located on plant lands 

separate from the plant's industrial activities, such as office buildings and accompanying parking lots as 

long as the drainage from the excluded areas is not mixed with storm water drained from the above 

described areas. Industrial facilities (including industrial facilities that are federally, State, or municipally 

owned or operated that meet the description of the facilities listed in paragraphs (b)(14)(i) through (xi) of 

this section) include those facilities designated under the provisions of paragraph (a)(1)(v) of this 

section. The following categories of facilities are considered to be engaging in “industrial activity” for 

purposes of paragraph (b)(14): 

(i) Facilities subject to storm water effluent limitations guidelines, new source performance standards, or 

toxic pollutant effluent standards under 40 CFR subchapter N (except facilities with toxic pollutant 

effluent standards which are exempted under category (xi) in paragraph (b)(14) of this section); 

(ii) Facilities classified as Standard Industrial Classifications 24 (except 2434), 26 (except 265 and 267), 

28 (except 283), 29, 31l, 32 (except 323), 33, 344l, 373; 

(iii) Facilities classified as Standard Industrial Classifications 10 through 14 (mineral industry) including 

active or inactive mining operations (except for areas of coal mining operations no longer meeting the 

definition of a reclamation area under 40 CFR 434.11(1) because the performance bond issued to the 

facility by the appropriate SMCRA authority has been released, or except for areas of non-coal mining 

operations which have been released from applicable State or Federal reclamation requirements after 

December 17, 1990) and oil and gas exploration, production, processing, or treatment operations, or 

transmission facilities that discharge storm water contaminated by contact with or that has come into 

contact with, any overburden, raw material, intermediate products, finished products, byproducts or 

waste products located on the site of such operations; (inactive mining operations are mining sites that 

are not being actively mined, but which have an identifiable owner/operator; inactive mining sites do not 

include sites where mining claims are being maintained prior to disturbances associated with the 

extraction, beneficiation, or processing of mined materials, nor sites where minimal activities are 

undertaken for the sole purpose of maintaining a mining claim); 

(iv) Hazardous waste treatment, storage, or disposal facilities, including those that are operating under 

interim status or a permit under subtitle C of RCRA; 

(v) Landfills, land application sites, and open dumps that receive or have received any industrial wastes 

(waste that is received from any of the facilities described under this subsection) including those that are 

subject to regulation under subtitle D of RCRA; 

(vi) Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, 

salvage yards, and automobile junkyards, including but limited to those classified as Standard Industrial 

Classification 5015 and 5093; 

(vii) Steam electric power generating facilities, including coal handling sites; 

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(viii) Transportation facilities classified as Standard Industrial Classifications 40, 41, 42 (except 4221–

25), 43, 44, 45, and 5171 which have vehicle maintenance shops, equipment cleaning operations, or 

airport deicing operations. Only those portions of the facility that are either involved in vehicle 

maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), 

equipment cleaning operations, airport deicing operations, or which are otherwise identified under 

paragraphs (b)(14) (i)–(vii) or (ix)–(xi) of this section are associated with industrial activity; 

(ix) Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment 

device or system, used in the storage treatment, recycling, and reclamation of municipal or domestic 

sewage, including land dedicated to the disposal of sewage sludge that are located within the confines 

of the facility, with a design flow of 1.0 mgd or more, or required to have an approved pretreatment 

program under 40 CFR part 403. Not included are farm lands, domestic gardens or lands used for 

sludge management where sludge is beneficially reused and which are not physically located in the 

confines of the facility, or areas that are in compliance with section 405 of the CWA; 

(x) Construction activity including clearing, grading and excavation, except operations that result in the 

disturbance of less than five acres of total land area. Construction activity also includes the disturbance 

of less than five acres of total land area that is a part of a larger common plan of development or sale if 

the larger common plan will ultimately disturb five acres or more; 

(xi) Facilities under Standard Industrial Classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 

30, 31 (except 311), 323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, and 4221–25; 

(15) Storm water discharge associated with small construction activity means the discharge of storm 

water from: 

(i) Construction activities including clearing, grading, and excavating that result in land disturbance of 

equal to or greater than one acre and less than five acres. Small construction activity also includes the 

disturbance of less than one acre of total land area that is part of a larger common plan of development 

or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five 

acres. Small construction activity does not include routine maintenance that is performed to maintain the 

original line and grade, hydraulic capacity, or original purpose of the facility. The Director may waive the 

otherwise applicable requirements in a general permit for a storm water discharge from construction 

activities that disturb less than five acres where: 

(A) The value of the rainfall erosivity factor (“R” in the Revised Universal Soil Loss Equation) is less than 

five during the period of construction activity. The rainfall erosivity factor is determined in accordance 

with Chapter 2 of Agriculture Handbook Number 703, Predicting Soil Erosion by Water: A Guide to 

Conservation Planning With the Revised Universal Soil Loss Equation (RUSLE), pages 21–64, dated 

January 1997. The Director of the Federal Register approves this incorporation by reference in 

accordance with 5 U.S.C 552(a) and 1 CFR part 51. Copies may be obtained from EPA's Water 

Resource Center, Mail Code RC4100, 401 M St. SW, Washington, DC 20460. A copy is also available 

for inspection at the U.S. EPA Water Docket , 401 M Street SW, Washington, DC 20460, or at the 

National Archives and Records Administration (NARA). For information on the availability of this material 

at NARA, call 202–741–6030, or go to: 

http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. An operator 

must certify to the Director that the construction activity will take place during a period when the value of 

the rainfall erosivity factor is less than five; or 

(B) Storm water controls are not needed based on a “total maximum daily load” (TMDL) approved or 

established by EPA that addresses the pollutant(s) of concern or, for non-impaired waters that do not 

require TMDLs, an equivalent analysis that determines allocations for small construction sites for the 

pollutant(s) of concern or that determines that such allocations are not needed to protect water quality 

based on consideration of existing in-stream concentrations, expected growth in pollutant contributions 

from all sources, and a margin of safety. For the purpose of this paragraph, the pollutant(s) of concern 

include sediment or a parameter that addresses sediment (such as total suspended solids, turbidity or 

siltation) and any other pollutant that has been identified as a cause of impairment of any water body 

that will receive a discharge from the construction activity. The operator must certify to the Director that 

the construction activity will take place, and storm water discharges will occur, within the drainage area 

addressed by the TMDL or equivalent analysis. 

(ii) Any other construction activity designated by the Director, or in States with approved NPDES 

programs either the Director or the EPA Regional Administrator, based on the potential for contribution 

to a violation of a water quality standard or for significant contribution of pollutants to waters of the 

United States. 

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Exhibit 1 to §122.26(b)(15)—Summary of Coverage of “Storm Water Discharges Associated with 

Small Construction Activity” Under the NPDES Storm Water Program 

(16) Small municipal separate storm sewer system means all separate storm sewers that are: 

(i) Owned or operated by the United States, a State, city, town, borough, county, parish, district, 

association, or other public body (created by or pursuant to State law) having jurisdiction over disposal 

of sewage, industrial wastes, storm water, or other wastes, including special districts under State law 

such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an 

authorized Indian tribal organization, or a designated and approved management agency under section 

208 of the CWA that discharges to waters of the United States. 

(ii) Not defined as “large” or “medium” municipal separate storm sewer systems pursuant to paragraphs 

(b)(4) and (b)(7) of this section, or designated under paragraph (a)(1)(v) of this section. 

(iii) This term includes systems similar to separate storm sewer systems in municipalities, such as 

systems at military bases, large hospital or prison complexes, and highways and other thoroughfares. 

The term does not include separate storm sewers in very discrete areas, such as individual buildings. 

(17) Small MS4 means a small municipal separate storm sewer system. 

(18) Municipal separate storm sewer system means all separate storm sewers that are defined as 

“large” or “medium” or “small” municipal separate storm sewer systems pursuant to paragraphs (b)(4), 

(b)(7), and (b)(16) of this section, or designated under paragraph (a)(1)(v) of this section. 

(19) MS4 means a municipal separate storm sewer system. 

(20) Uncontrolled sanitary landfill means a landill or open dump, whether in operation or closed, that 

does not meet the requirements for runon or runoff controls established pursuant to subtitle D of the 

Solid Waste Disposal Act. 

(c) Application requirements for storm water discharges associated with industrial activity and storm 

water discharges associated with small construction activity —(1) Individual application. Dischargers of 

Automatic Designation: 

Required Nationwide 

Coverage

• Construction activities that result in a land 

disturbance of equal to or greater than one acre 

and less than five acres.

 • Construction activities disturbing less than one 

acre if part of a larger common plan of 

development or sale with a planned disturbance of 

equal to or greater than one acre and less than 

five acres. (see §122.26(b)(15)(i).)

Potential Designation: 

Optional Evaluation and 

Designation by the 

NPDES Permitting 

Authority or EPA Regional 

Administrator

• Construction activities that result in a land 

disturbance of less than one acre based on the 

potential for contribution to a violation of a water 

quality standard or for significant contribution of 

pollutants. (see §122.26(b)(15)(ii).)

Potential Waiver: Waiver 

from Requirements as 

Determined by the 

NPDES Permitting 

Authority.

Any automatically designated construction activity 

where the operator certifies: (1) A rainfall erosivity 

factor of less than five, or (2) That the activity will 

occur within an area where controls are not 

needed based on a TMDL or, for non-impaired 

waters that do not require a TMDL, an equivalent 

analysis for the pollutant(s) of concern. (see 

§122.26(b)(15)(i).)

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storm water associated with industrial activity and with small construction activity are required to apply 

for an individual permit or seek coverage under a promulgated storm water general permit. Facilities that 

are required to obtain an individual permit or any dischage of storm water which the Director is 

evaluating for designation (see §124.52(c) of this chapter) under paragraph (a)(1)(v) of this section and 

is not a municipal storm sewer, shall submit an NPDES application in accordance with the requirements 

of §122.21 as modified and supplemented by the provisions of this paragraph. 

(i) Except as provided in §122.26(c)(1) (ii)–(iv), the operator of a storm water discharge associated with 

industrial activity subject to this section shall provide: 

(A) A site map showing topography (or indicating the outline of drainage areas served by the outfall(s) 

covered in the application if a topographic map is unavailable) of the facility including: each of its 

drainage and discharge structures; the drainage area of each storm water outfall; paved areas and 

buildings within the drainage area of each storm water outfall, each past or present area used for 

outdoor storage or disposal of significant materials, each existing structural control measure to reduce 

pollutants in storm water runoff, materials loading and access areas, areas where pesticides, herbicides, 

soil conditioners and fertilizers are applied, each of its hazardous waste treatment, storage or disposal 

facilities (including each area not required to have a RCRA permit which is used for accumulating 

hazardous waste under 40 CFR 262.34); each well where fluids from the facility are injected 

underground; springs, and other surface water bodies which receive storm water discharges from the 

facility; 

(B) An estimate of the area of impervious surfaces (including paved areas and building roofs) and the 

total area drained by each outfall (within a mile radius of the facility) and a narrative description of the 

following: Significant materials that in the three years prior to the submittal of this application have been 

treated, stored or disposed in a manner to allow exposure to storm water; method of treatment, storage 

or disposal of such materials; materials management practices employed, in the three years prior to the 

submittal of this application, to minimize contact by these materials with storm water runoff; materials 

loading and access areas; the location, manner and frequency in which pesticides, herbicides, soil 

conditioners and fertilizers are applied; the location and a description of existing structural and nonstructural control measures to reduce pollutants in storm water runoff; and a description of the treatment 

the storm water receives, including the ultimate disposal of any solid or fluid wastes other than by 

discharge; 

(C) A certification that all outfalls that should contain storm water discharges associated with industrial 

activity have been tested or evaluated for the presence of non-storm water discharges which are not 

covered by a NPDES permit; tests for such non-storm water discharges may include smoke tests, 

fluorometric dye tests, analysis of accurate schematics, as well as other appropriate tests. The 

certification shall include a description of the method used, the date of any testing, and the on-site 

drainage points that were directly observed during a test; 

(D) Existing information regarding significant leaks or spills of toxic or hazardous pollutants at the facility 

that have taken place within the three years prior to the submittal of this application; 

(E) Quantitative data based on samples collected during storm events and collected in accordance with 

§122.21 of this part from all outfalls containing a storm water discharge associated with industrial activity 

for the following parameters: 

( 1 ) Any pollutant limited in an effluent guideline to which the facility is subject; 

( 2 ) Any pollutant listed in the facility's NPDES permit for its process wastewater (if the facility is 

operating under an existing NPDES permit); 

( 3 ) Oil and grease, pH, BOD5, COD, TSS, total phosphorus, total Kjeldahl nitrogen, and nitrate plus 

nitrite nitrogen; 

( 4 ) Any information on the discharge required under §122.21(g)(7)(vi) and (vii); 

( 5 ) Flow measurements or estimates of the flow rate, and the total amount of discharge for the storm 

event(s) sampled, and the method of flow measurement or estimation; and 

( 6 ) The date and duration (in hours) of the storm event(s) sampled, rainfall measurements or estimates 

of the storm event (in inches) which generated the sampled runoff and the duration between the storm 

event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event (in 

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hours); 

(F) Operators of a discharge which is composed entirely of storm water are exempt from the 

requirements of §122.21 (g)(2), (g)(3), (g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii); and 

(G) Operators of new sources or new discharges (as defined in §122.2 of this part) which are composed 

in part or entirely of storm water must include estimates for the pollutants or parameters listed in 

paragraph (c)(1)(i)(E) of this section instead of actual sampling data, along with the source of each 

estimate. Operators of new sources or new discharges composed in part or entirely of storm water must 

provide quantitative data for the parameters listed in paragraph (c)(1)(i)(E) of this section within two 

years after commencement of discharge, unless such data has already been reported under the 

monitoring requirements of the NPDES permit for the discharge. Operators of a new source or new 

discharge which is composed entirely of storm water are exempt from the requirements of §122.21 (k)(3)

(ii), (k)(3)(iii), and (k)(5). 

(ii) An operator of an existing or new storm water discharge that is associated with industrial activity 

solely under paragraph (b)(14)(x) of this section or is associated with small construction activity solely 

under paragraph (b)(15) of this section, is exempt from the requirements of §122.21(g) and paragraph 

(c)(1)(i) of this section. Such operator shall provide a narrative description of: 

(A) The location (including a map) and the nature of the construction activity; 

(B) The total area of the site and the area of the site that is expected to undergo excavation during the 

life of the permit; 

(C) Proposed measures, including best management practices, to control pollutants in storm water 

discharges during construction, including a brief description of applicable State and local erosion and 

sediment control requirements; 

(D) Proposed measures to control pollutants in storm water discharges that will occur after construction 

operations have been completed, including a brief description of applicable State or local erosion and 

sediment control requirements; 

(E) An estimate of the runoff coefficient of the site and the increase in impervious area after the 

construction addressed in the permit application is completed, the nature of fill material and existing data 

describing the soil or the quality of the discharge; and 

(F) The name of the receiving water. 

(iii) The operator of an existing or new discharge composed entirely of storm water from an oil or gas 

exploration, production, processing, or treatment operation, or transmission facility is not required to 

submit a permit application in accordance with paragraph (c)(1)(i) of this section, unless the facility: 

(A) Has had a discharge of storm water resulting in the discharge of a reportable quantity for which 

notification is or was required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at anytime since November 

16, 1987; or 

(B) Has had a discharge of storm water resulting in the discharge of a reportable quantity for which 

notification is or was required pursuant to 40 CFR 110.6 at any time since November 16, 1987; or 

(C) Contributes to a violation of a water quality standard. 

(iv) The operator of an existing or new discharge composed entirely of storm water from a mining 

operation is not required to submit a permit application unless the discharge has come into contact with, 

any overburden, raw material, intermediate products, finished product, byproduct or waste products 

located on the site of such operations. 

(v) Applicants shall provide such other information the Director may reasonably require under §122.21(g)

(13) of this part to determine whether to issue a permit and may require any facility subject to paragraph 

(c)(1)(ii) of this section to comply with paragraph (c)(1)(i) of this section. 

(2) [Reserved] 

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(d) Application requirements for large and medium municipal separate storm sewer discharges. The 

operator of a discharge from a large or medium municipal separate storm sewer or a municipal separate 

storm sewer that is designated by the Director under paragraph (a)(1)(v) of this section, may submit a 

jurisdiction-wide or system-wide permit application. Where more than one public entity owns or operates 

a municipal separate storm sewer within a geographic area (including adjacent or interconnected 

municipal separate storm sewer systems), such operators may be a coapplicant to the same application. 

Permit applications for discharges from large and medium municipal storm sewers or municipal storm 

sewers designated under paragraph (a)(1)(v) of this section shall include; 

(1) Part 1. Part 1 of the application shall consist of; 

(i) General information. The applicants' name, address, telephone number of contact person, ownership 

status and status as a State or local government entity. 

(ii) Legal authority. A description of existing legal authority to control discharges to the municipal 

separate storm sewer system. When existing legal authority is not sufficient to meet the criteria provided 

in paragraph (d)(2)(i) of this section, the description shall list additional authorities as will be necessary 

to meet the criteria and shall include a schedule and commitment to seek such additional authority that 

will be needed to meet the criteria. 

(iii) Source identification. (A) A description of the historic use of ordinances, guidance or other controls 

which limited the discharge of non-storm water discharges to any Publicly Owned Treatment Works 

serving the same area as the municipal separate storm sewer system. 

(B) A USGS 7.5 minute topographic map (or equivalent topographic map with a scale between 1:10,000 

and 1:24,000 if cost effective) extending one mile beyond the service boundaries of the municipal storm 

sewer system covered by the permit application. The following information shall be provided: 

( 1 ) The location of known municipal storm sewer system outfalls discharging to waters of the United 

States; 

( 2 ) A description of the land use activities (e.g. divisions indicating undeveloped, residential, 

commercial, agricultural and industrial uses) accompanied with estimates of population densities and 

projected growth for a ten year period within the drainage area served by the separate storm sewer. For 

each land use type, an estimate of an average runoff coefficient shall be provided; 

( 3 ) The location and a description of the activities of the facility of each currently operating or closed 

municipal landfill or other treatment, storage or disposal facility for municipal waste; 

( 4 ) The location and the permit number of any known discharge to the municipal storm sewer that has 

been issued a NPDES permit; 

( 5 ) The location of major structural controls for storm water discharge (retention basins, detention 

basins, major infiltration devices, etc.); and 

( 6 ) The identification of publicly owned parks, recreational areas, and other open lands. 

(iv) Discharge characterization. (A) Monthly mean rain and snow fall estimates (or summary of weather 

bureau data) and the monthly average number of storm events. 

(B) Existing quantitative data describing the volume and quality of discharges from the municipal storm 

sewer, including a description of the outfalls sampled, sampling procedures and analytical methods 

used. 

(C) A list of water bodies that receive discharges from the municipal separate storm sewer system, 

including downstream segments, lakes and estuaries, where pollutants from the system discharges may 

accumulate and cause water degradation and a brief description of known water quality impacts. At a 

minimum, the description of impacts shall include a description of whether the water bodies receiving 

such discharges have been: 

( 1 ) Assessed and reported in section 305(b) reports submitted by the State, the basis for the 

assessment (evaluated or monitored), a summary of designated use support and attainment of Clean 

Water Act (CWA) goals (fishable and swimmable waters), and causes of nonsupport of designated uses; 

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( 2 ) Listed under section 304(l)(1)(A)(i), section 304(l)(1)(A)(ii), or section 304(l)(1)(B) of the CWA that is 

not expected to meet water quality standards or water quality goals; 

( 3 ) Listed in State Nonpoint Source Assessments required by section 319(a) of the CWA that, without 

additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or 

maintain water quality standards due to storm sewers, construction, highway maintenance and runoff 

from municipal landfills and municipal sludge adding significant pollution (or contributing to a violation of 

water quality standards); 

( 4 ) Identified and classified according to eutrophic condition of publicly owned lakes listed in State 

reports required under section 314(a) of the CWA (include the following: A description of those publicly 

owned lakes for which uses are known to be impaired; a description of procedures, processes and 

methods to control the discharge of pollutants from municipal separate storm sewers into such lakes; 

and a description of methods and procedures to restore the quality of such lakes); 

( 5 ) Areas of concern of the Great Lakes identified by the International Joint Commission; 

( 6 ) Designated estuaries under the National Estuary Program under section 320 of the CWA; 

( 7 ) Recognized by the applicant as highly valued or sensitive waters; 

( 8 ) Defined by the State or U.S. Fish and Wildlife Services's National Wetlands Inventory as wetlands; 

and 

( 9 ) Found to have pollutants in bottom sediments, fish tissue or biosurvey data. 

(D) Field screening. Results of a field screening analysis for illicit connections and illegal dumping for 

either selected field screening points or major outfalls covered in the permit application. At a minimum, a 

screening analysis shall include a narrative description, for either each field screening point or major 

outfall, of visual observations made during dry weather periods. If any flow is observed, two grab 

samples shall be collected during a 24 hour period with a minimum period of four hours between 

samples. For all such samples, a narrative description of the color, odor, turbidity, the presence of an oil 

sheen or surface scum as well as any other relevant observations regarding the potential presence of 

non-storm water discharges or illegal dumping shall be provided. In addition, a narrative description of 

the results of a field analysis using suitable methods to estimate pH, total chlorine, total copper, total 

phenol, and detergents (or surfactants) shall be provided along with a description of the flow rate. Where 

the field analysis does not involve analytical methods approved under 40 CFR part 136, the applicant 

shall provide a description of the method used including the name of the manufacturer of the test 

method along with the range and accuracy of the test. Field screening points shall be either major 

outfalls or other outfall points (or any other point of access such as manholes) randomly located 

throughout the storm sewer system by placing a grid over a drainage system map and identifying those 

cells of the grid which contain a segment of the storm sewer system or major outfall. The field screening 

points shall be established using the following guidelines and criteria: 

( 1 ) A grid system consisting of perpendicular north-south and east-west lines spaced1/4mile apart shall 

be overlayed on a map of the municipal storm sewer system, creating a series of cells; 

( 2 ) All cells that contain a segment of the storm sewer system shall be identified; one field screening 

point shall be selected in each cell; major outfalls may be used as field screening points; 

( 3 ) Field screening points should be located downstream of any sources of suspected illegal or illicit 

activity; 

( 4 ) Field screening points shall be located to the degree practicable at the farthest manhole or other 

accessible location downstream in the system, within each cell; however, safety of personnel and 

accessibility of the location should be considered in making this determination; 

( 5 ) Hydrological conditions; total drainage area of the site; population density of the site; traffic density; 

age of the structures or buildings in the area; history of the area; and land use types; 

( 6 ) For medium municipal separate storm sewer systems, no more than 250 cells need to have 

identified field screening points; in large municipal separate storm sewer systems, no more than 500 

cells need to have identified field screening points; cells established by the grid that contain no storm 

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sewer segments will be eliminated from consideration; if fewer than 250 cells in medium municipal 

sewers are created, and fewer than 500 in large systems are created by the overlay on the municipal 

sewer map, then all those cells which contain a segment of the sewer system shall be subject to field 

screening (unless access to the separate storm sewer system is impossible); and 

( 7 ) Large or medium municipal separate storm sewer systems which are unable to utilize the 

procedures described in paragraphs (d)(1)(iv)(D) ( 1 ) through ( 6 ) of this section, because a sufficiently 

detailed map of the separate storm sewer systems is unavailable, shall field screen no more than 500 or 

250 major outfalls respectively (or all major outfalls in the system, if less); in such circumstances, the 

applicant shall establish a grid system consisting of north-south and east-west lines spaced1/4mile apart 

as an overlay to the boundaries of the municipal storm sewer system, thereby creating a series of cells; 

the applicant will then select major outfalls in as many cells as possible until at least 500 major outfalls 

(large municipalities) or 250 major outfalls (medium municipalities) are selected; a field screening 

analysis shall be undertaken at these major outfalls. 

(E) Characterization plan. Information and a proposed program to meet the requirements of paragraph 

(d)(2)(iii) of this section. Such description shall include: the location of outfalls or field screening points 

appropriate for representative data collection under paragraph (d)(2)(iii)(A) of this section, a description 

of why the outfall or field screening point is representative, the seasons during which sampling is 

intended, a description of the sampling equipment. The proposed location of outfalls or field screening 

points for such sampling should reflect water quality concerns ( see paragraph (d)(1)(iv)(C) of this 

section) to the extent practicable. 

(v) Management programs. (A) A description of the existing management programs to control pollutants 

from the municipal separate storm sewer system. The description shall provide information on existing 

structural and source controls, including operation and maintenance measures for structural controls, 

that are currently being implemented. Such controls may include, but are not limited to: Procedures to 

control pollution resulting from construction activities; floodplain management controls; wetland 

protection measures; best management practices for new subdivisions; and emergency spill response 

programs. The description may address controls established under State law as well as local 

requirements. 

(B) A description of the existing program to identify illicit connections to the municipal storm sewer 

system. The description should include inspection procedures and methods for detecting and preventing 

illicit discharges, and describe areas where this program has been implemented. 

(vi) Fiscal resources. (A) A description of the financial resources currently available to the municipality to 

complete part 2 of the permit application. A description of the municipality's budget for existing storm 

water programs, including an overview of the municipality's financial resources and budget, including 

overall indebtedness and assets, and sources of funds for storm water programs. 

(2) Part 2. Part 2 of the application shall consist of: 

(i) Adequate legal authority. A demonstration that the applicant can operate pursuant to legal authority 

established by statute, ordinance or series of contracts which authorizes or enables the applicant at a 

minimum to: 

(A) Control through ordinance, permit, contract, order or similar means, the contribution of pollutants to 

the municipal storm sewer by storm water discharges associated with industrial activity and the quality of 

storm water discharged from sites of industrial activity; 

(B) Prohibit through ordinance, order or similar means, illicit discharges to the municipal separate storm 

sewer; 

(C) Control through ordinance, order or similar means the discharge to a municipal separate storm 

sewer of spills, dumping or disposal of materials other than storm water; 

(D) Control through interagency agreements among coapplicants the contribution of pollutants from one 

portion of the municipal system to another portion of the municipal system; 

(E) Require compliance with conditions in ordinances, permits, contracts or orders; and 

(F) Carry out all inspection, surveillance and monitoring procedures necessary to determine compliance 

and noncompliance with permit conditions including the prohibition on illicit discharges to the municipal 

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separate storm sewer. 

(ii) Source identification. The location of any major outfall that discharges to waters of the United States 

that was not reported under paragraph (d)(1)(iii)(B)( 1 ) of this section. Provide an inventory, organized 

by watershed of the name and address, and a description (such as SIC codes) which best reflects the 

principal products or services provided by each facility which may discharge, to the municipal separate 

storm sewer, storm water associated with industrial activity; 

(iii) Characterization data. When “quantitative data” for a pollutant are required under paragraph (d)(2)

(iii)(A)( 3 ) of this section, the applicant must collect a sample of effluent in accordance with 40 CFR 

122.21(g)(7) and analyze it for the pollutant in accordance with analytical methods approved under part 

136 of this chapter. When no analytical method is approved the applicant may use any suitable method 

but must provide a description of the method. The applicant must provide information characterizing the 

quality and quantity of discharges covered in the permit application, including: 

(A) Quantitative data from representative outfalls designated by the Director (based on information 

received in part 1 of the application, the Director shall designate between five and ten outfalls or field 

screening points as representative of the commercial, residential and industrial land use activities of the 

drainage area contributing to the system or, where there are less than five outfalls covered in the 

application, the Director shall designate all outfalls) developed as follows: 

( 1 ) For each outfall or field screening point designated under this subparagraph, samples shall be 

collected of storm water discharges from three storm events occurring at least one month apart in 

accordance with the requirements at §122.21(g)(7) (the Director may allow exemptions to sampling 

three storm events when climatic conditions create good cause for such exemptions); 

( 2 ) A narrative description shall be provided of the date and duration of the storm event(s) sampled, 

rainfall estimates of the storm event which generated the sampled discharge and the duration between 

the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm 

event; 

( 3 ) For samples collected and described under paragraphs (d)(2)(iii) (A)( 1 ) and (A)( 2 ) of this section, 

quantitative data shall be provided for: the organic pollutants listed in Table II; the pollutants listed in 

Table III (toxic metals, cyanide, and total phenols) of appendix D of 40 CFR part 122, and for the 

following pollutants: 

Total suspended solids (TSS) 

Total dissolved solids (TDS) 

COD 

BOD5

Oil and grease 

Fecal coliform 

Fecal streptococcus 

pH 

Total Kjeldahl nitrogen 

Nitrate plus nitrite 

Dissolved phosphorus 

Total ammonia plus organic nitrogen 

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Total phosphorus 

( 4 ) Additional limited quantitative data required by the Director for determining permit conditions (the 

Director may require that quantitative data shall be provided for additional parameters, and may 

establish sampling conditions such as the location, season of sample collection, form of precipitation 

(snow melt, rainfall) and other parameters necessary to insure representativeness); 

(B) Estimates of the annual pollutant load of the cumulative discharges to waters of the United States 

from all identified municipal outfalls and the event mean concentration of the cumulative discharges to 

waters of the United States from all identified municipal outfalls during a storm event (as described 

under §122.21(c)(7)) for BOD5, COD, TSS, dissolved solids, total nitrogen, total ammonia plus organic 

nitrogen, total phosphorus, dissolved phosphorus, cadmium, copper, lead, and zinc. Estimates shall be 

accompanied by a description of the procedures for estimating constituent loads and concentrations, 

including any modelling, data analysis, and calculation methods; 

(C) A proposed schedule to provide estimates for each major outfall identified in either paragraph (d)(2)

(ii) or (d)(1)(iii)(B)( 1 ) of this section of the seasonal pollutant load and of the event mean concentration 

of a representative storm for any constituent detected in any sample required under paragraph (d)(2)(iii)

(A) of this section; and 

(D) A proposed monitoring program for representative data collection for the term of the permit that 

describes the location of outfalls or field screening points to be sampled (or the location of instream 

stations), why the location is representative, the frequency of sampling, parameters to be sampled, and 

a description of sampling equipment. 

(iv) Proposed management program. A proposed management program covers the duration of the 

permit. It shall include a comprehensive planning process which involves public participation and where 

necessary intergovernmental coordination, to reduce the discharge of pollutants to the maximum extent 

practicable using management practices, control techniques and system, design and engineering 

methods, and such other provisions which are appropriate. The program shall also include a description 

of staff and equipment available to implement the program. Separate proposed programs may be 

submitted by each coapplicant. Proposed programs may impose controls on a systemwide basis, a 

watershed basis, a jurisdiction basis, or on individual outfalls. Proposed programs will be considered by 

the Director when developing permit conditions to reduce pollutants in discharges to the maximum 

extent practicable. Proposed management programs shall describe priorities for implementing controls. 

Such programs shall be based on: 

(A) A description of structural and source control measures to reduce pollutants from runoff from 

commercial and residential areas that are discharged from the municipal storm sewer system that are to 

be implemented during the life of the permit, accompanied with an estimate of the expected reduction of 

pollutant loads and a proposed schedule for implementing such controls. At a minimum, the description 

shall include: 

( 1 ) A description of maintenance activities and a maintenance schedule for structural controls to reduce 

pollutants (including floatables) in discharges from municipal separate storm sewers; 

( 2 ) A description of planning procedures including a comprehensive master plan to develop, implement 

and enforce controls to reduce the discharge of pollutants from municipal separate storm sewers which 

receive discharges from areas of new development and significant redevelopment. Such plan shall 

address controls to reduce pollutants in discharges from municipal separate storm sewers after 

construction is completed. (Controls to reduce pollutants in discharges from municipal separate storm 

sewers containing construction site runoff are addressed in paragraph (d)(2)(iv)(D) of this section; 

( 3 ) A description of practices for operating and maintaining public streets, roads and highways and 

procedures for reducing the impact on receiving waters of discharges from municipal storm sewer 

systems, including pollutants discharged as a result of deicing activities; 

( 4 ) A description of procedures to assure that flood management projects assess the impacts on the 

water quality of receiving water bodies and that existing structural flood control devices have been 

evaluated to determine if retrofitting the device to provide additional pollutant removal from storm water 

is feasible; 

( 5 ) A description of a program to monitor pollutants in runoff from operating or closed municipal landfills 

or other treatment, storage or disposal facilities for municipal waste, which shall identify priorities and 

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procedures for inspections and establishing and implementing control measures for such discharges 

(this program can be coordinated with the program developed under paragraph (d)(2)(iv)(C) of this 

section); and 

( 6 ) A description of a program to reduce to the maximum extent practicable, pollutants in discharges 

from municipal separate storm sewers associated with the application of pesticides, herbicides and 

fertilizer which will include, as appropriate, controls such as educational activities, permits, certifications 

and other measures for commercial applicators and distributors, and controls for application in public 

right-of-ways and at municipal facilities. 

(B) A description of a program, including a schedule, to detect and remove (or require the discharger to 

the municipal separate storm sewer to obtain a separate NPDES permit for) illicit discharges and 

improper disposal into the storm sewer. The proposed program shall include: 

( 1 ) A description of a program, including inspections, to implement and enforce an ordinance, orders or 

similar means to prevent illicit discharges to the municipal separate storm sewer system; this program 

description shall address all types of illicit discharges, however the following category of non-storm water 

discharges or flows shall be addressed where such discharges are identified by the municipality as 

sources of pollutants to waters of the United States: water line flushing, landscape irrigation, diverted 

stream flows, rising ground waters, uncontaminated ground water infiltration (as defined at 40 CFR 

35.2005(20)) to separate storm sewers, uncontaminated pumped ground water, discharges from potable 

water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from 

crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian 

habitats and wetlands, dechlorinated swimming pool discharges, and street wash water (program 

descriptions shall address discharges or flows from fire fighting only where such discharges or flows are 

identified as significant sources of pollutants to waters of the United States); 

( 2 ) A description of procedures to conduct on-going field screening activities during the life of the 

permit, including areas or locations that will be evaluated by such field screens; 

( 3 ) A description of procedures to be followed to investigate portions of the separate storm sewer 

system that, based on the results of the field screen, or other appropriate information, indicate a 

reasonable potential of containing illicit discharges or other sources of non-storm water (such 

procedures may include: sampling procedures for constituents such as fecal coliform, fecal 

streptococcus, surfactants (MBAS), residual chlorine, fluorides and potassium; testing with fluorometric 

dyes; or conducting in storm sewer inspections where safety and other considerations allow. Such 

description shall include the location of storm sewers that have been identified for such evaluation); 

( 4 ) A description of procedures to prevent, contain, and respond to spills that may discharge into the 

municipal separate storm sewer; 

( 5 ) A description of a program to promote, publicize, and facilitate public reporting of the presence of 

illicit discharges or water quality impacts associated with discharges from municipal separate storm 

sewers; 

( 6 ) A description of educational activities, public information activities, and other appropriate activities 

to facilitate the proper management and disposal of used oil and toxic materials; and 

( 7 ) A description of controls to limit infiltration of seepage from municipal sanitary sewers to municipal 

separate storm sewer systems where necessary; 

(C) A description of a program to monitor and control pollutants in storm water discharges to municipal 

systems from municipal landfills, hazardous waste treatment, disposal and recovery facilities, industrial 

facilities that are subject to section 313 of title III of the Superfund Amendments and Reauthorization Act 

of 1986 (SARA), and industrial facilities that the municipal permit applicant determines are contributing a 

substantial pollutant loading to the municipal storm sewer system. The program shall: 

( 1 ) Identify priorities and procedures for inspections and establishing and implementing control 

measures for such discharges; 

( 2 ) Describe a monitoring program for storm water discharges associated with the industrial facilities 

identified in paragraph (d)(2)(iv)(C) of this section, to be implemented during the term of the permit, 

including the submission of quantitative data on the following constituents: any pollutants limited in 

effluent guidelines subcategories, where applicable; any pollutant listed in an existing NPDES permit for 

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a facility; oil and grease, COD, pH, BOD5, TSS, total phosphorus, total Kjeldahl nitrogen, nitrate plus 

nitrite nitrogen, and any information on discharges required under §122.21(g)(7) (vi) and (vii). 

(D) A description of a program to implement and maintain structural and non-structural best 

management practices to reduce pollutants in storm water runoff from construction sites to the municipal 

storm sewer system, which shall include: 

( 1 ) A description of procedures for site planning which incorporate consideration of potential water 

quality impacts; 

( 2 ) A description of requirements for nonstructural and structural best management practices; 

( 3 ) A description of procedures for identifying priorities for inspecting sites and enforcing control 

measures which consider the nature of the construction activity, topography, and the characteristics of 

soils and receiving water quality; and 

( 4 ) A description of appropriate educational and training measures for construction site operators. 

(v) Assessment of controls. Estimated reductions in loadings of pollutants from discharges of municipal 

storm sewer constituents from municipal storm sewer systems expected as the result of the municipal 

storm water quality management program. The assessment shall also identify known impacts of storm 

water controls on ground water. 

(vi) Fiscal analysis. For each fiscal year to be covered by the permit, a fiscal analysis of the necessary 

capital and operation and maintenance expenditures necessary to accomplish the activities of the 

programs under paragraphs (d)(2) (iii) and (iv) of this section. Such analysis shall include a description 

of the source of funds that are proposed to meet the necessary expenditures, including legal restrictions 

on the use of such funds. 

(vii) Where more than one legal entity submits an application, the application shall contain a description 

of the roles and responsibilities of each legal entity and procedures to ensure effective coordination. 

(viii) Where requirements under paragraph (d)(1)(iv)(E), (d)(2)(ii), (d)(2)(iii)(B) and (d)(2)(iv) of this 

section are not practicable or are not applicable, the Director may exclude any operator of a discharge 

from a municipal separate storm sewer which is designated under paragraph (a)(1)(v), (b)(4)(ii) or (b)(7)

(ii) of this section from such requirements. The Director shall not exclude the operator of a discharge 

from a municipal separate storm sewer identified in appendix F, G, H or I of part 122, from any of the 

permit application requirements under this paragraph except where authorized under this section. 

(e) Application deadlines. Any operator of a point source required to obtain a permit under this section 

that does not have an effective NPDES permit authorizing discharges from its storm water outfalls shall 

submit an application in accordance with the following deadlines: 

(1) Storm water discharges associated with industrial activity. (i) Except as provided in paragraph (e)(1)

(ii) of this section, for any storm water discharge associated with industrial activity identified in 

paragraphs (b)(14)(i) through (xi) of this section, that is not part of a group application as described in 

paragraph (c)(2) of this section or that is not authorized by a storm water general permit, a permit 

application made pursuant to paragraph (c) of this section must be submitted to the Director by October 

1, 1992; 

(ii) For any storm water discharge associated with industrial activity from a facility that is owned or 

operated by a municipality with a population of less than 100,000 that is not authorized by a general or 

individual permit, other than an airport, powerplant, or uncontrolled sanitary landfill, the permit 

application must be submitted to the Director by March 10, 2003. 

(2) For any group application submitted in accordance with paragraph (c)(2) of this section: 

(i) Part 1. (A) Except as provided in paragraph (e)(2)(i)(B) of this section, part 1 of the application shall 

be submitted to the Director, Office of Wastewater Enforcement and Compliance by September 30, 

1991; 

(B) Any municipality with a population of less than 250,000 shall not be required to submit a part 1 

application before May 18, 1992. 

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(C) For any storm water discharge associated with industrial activity from a facility that is owned or 

operated by a municipality with a population of less than 100,000 other than an airport, powerplant, or 

uncontrolled sanitary landfill, permit applications requirements are reserved. 

(ii) Based on information in the part 1 application, the Director will approve or deny the members in the 

group application within 60 days after receiving part 1 of the group application. 

(iii) Part 2. (A) Except as provided in paragraph (e)(2)(iii)(B) of this section, part 2 of the application shall 

be submittted to the Director, Office of Wastewater Enforcement and Compliance by October 1, 1992; 

(B) Any municipality with a population of less than 250,000 shall not be required to submit a part 1 

application before May 17, 1993. 

(C) For any storm water discharge associated with industrial activity from a facility that is owned or 

operated by a municipality with a population of less than 100,000 other than an airport, powerplant, or 

uncontrolled sanitary landfill, permit applications requirements are reserved. 

(iv) Rejected facilities. (A) Except as provided in paragraph (e)(2)(iv)(B) of this section, facilities that are 

rejected as members of the group shall submit an individual application (or obtain coverage under an 

applicable general permit) no later than 12 months after the date of receipt of the notice of rejection or 

October 1, 1992, whichever comes first. 

(B) Facilities that are owned or operated by a municipality and that are rejected as members of part 1 

group application shall submit an individual application no later than 180 days after the date of receipt of 

the notice of rejection or October 1, 1992, whichever is later. 

(v) A facility listed under paragraph (b)(14) (i)–(xi) of this section may add on to a group application 

submitted in accordance with paragraph (e)(2)(i) of this section at the discretion of the Office of Water 

Enforcement and Permits, and only upon a showing of good cause by the facility and the group 

applicant; the request for the addition of the facility shall be made no later than February 18, 1992; the 

addition of the facility shall not cause the percentage of the facilities that are required to submit 

quantitative data to be less than 10%, unless there are over 100 facilities in the group that are submitting 

quantitative data; approval to become part of group application must be obtained from the group or the 

trade association representing the individual facilities. 

(3) For any discharge from a large municipal separate storm sewer system; 

(i) Part 1 of the application shall be submitted to the Director by November 18, 1991; 

(ii) Based on information received in the part 1 application the Director will approve or deny a sampling 

plan under paragraph (d)(1)(iv)(E) of this section within 90 days after receiving the part 1 application; 

(iii) Part 2 of the application shall be submitted to the Director by November 16, 1992. 

(4) For any discharge from a medium municipal separate storm sewer system; 

(i) Part 1 of the application shall be submitted to the Director by May 18, 1992. 

(ii) Based on information received in the part 1 application the Director will approve or deny a sampling 

plan under paragraph (d)(1)(iv)(E) of this section within 90 days after receiving the part 1 application. 

(iii) Part 2 of the application shall be submitted to the Director by May 17, 1993. 

(5) A permit application shall be submitted to the Director within 180 days of notice, unless permission 

for a later date is granted by the Director (see §124.52(c) of this chapter), for: 

(i) A storm water discharge that the Director, or in States with approved NPDES programs, either the 

Director or the EPA Regional Administrator, determines that the discharge contributes to a violation of a 

water quality standard or is a significant contributor of pollutants to waters of the United States (see 

paragraphs (a)(1)(v) and (b)(15)(ii) of this section); 

(ii) A storm water discharge subject to paragraph (c)(1)(v) of this section. 

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(6) Facilities with existing NPDES permits for storm water discharges associated with industrial activity 

shall maintain existing permits. Facilities with permits for storm water discharges associated with 

industrial activity which expire on or after May 18, 1992 shall submit a new application in accordance 

with the requirements of 40 CFR 122.21 and 40 CFR 122.26(c) (Form 1, Form 2F, and other applicable 

Forms) 180 days before the expiration of such permits. 

(7) The Director shall issue or deny permits for discharges composed entirely of storm water under this 

section in accordance with the following schedule: 

(i)(A) Except as provided in paragraph (e)(7)(i)(B) of this section, the Director shall issue or deny permits 

for storm water discharges associated with industrial activity no later than October 1, 1993, or, for new 

sources or existing sources which fail to submit a complete permit application by October 1, 1992, one 

year after receipt of a complete permit application; 

(B) For any municipality with a population of less than 250,000 which submits a timely Part I group 

application under paragraph (e)(2)(i)(B) of this section, the Director shall issue or deny permits for storm 

water discharges associated with industrial activity no later than May 17, 1994, or, for any such 

municipality which fails to submit a complete Part II group permit application by May 17, 1993, one year 

after receipt of a complete permit application; 

(ii) The Director shall issue or deny permits for large municipal separate storm sewer systems no later 

than November 16, 1993, or, for new sources or existing sources which fail to submit a complete permit 

application by November 16, 1992, one year after receipt of a complete permit application; 

(iii) The Director shall issue or deny permits for medium municipal separate storm sewer systems no 

later than May 17, 1994, or, for new sources or existing sources which fail to submit a complete permit 

application by May 17, 1993, one year after receipt of a complete permit application. 

(8) For any storm water discharge associated with small construction activities identified in paragraph (b)

(15)(i) of this section, see §122.21(c)(1). Discharges from these sources require permit authorization by 

March 10, 2003, unless designated for coverage before then. 

(9) For any discharge from a regulated small MS4, the permit application made under §122.33 must be 

submitted to the Director by: 

(i) March 10, 2003 if designated under §122.32(a)(1) unless your MS4 serves a jurisdiction with a 

population under 10,000 and the NPDES permitting authority has established a phasing schedule under 

§123.35(d)(3) (see §122.33(c)(1)); or 

(ii) Within 180 days of notice, unless the NPDES permitting authority grants a later date, if designated 

under §122.32(a)(2) (see §122.33(c)(2)). 

(f) Petitions. (1) Any operator of a municipal separate storm sewer system may petition the Director to 

require a separate NPDES permit (or a permit issued under an approved NPDES State program) for any 

discharge into the municipal separate storm sewer system. 

(2) Any person may petition the Director to require a NPDES permit for a discharge which is composed 

entirely of storm water which contributes to a violation of a water quality standard or is a significant 

contributor of pollutants to waters of the United States. 

(3) The owner or operator of a municipal separate storm sewer system may petition the Director to 

reduce the Census estimates of the population served by such separate system to account for storm 

water discharged to combined sewers as defined by 40 CFR 35.2005(b)(11) that is treated in a publicly 

owned treatment works. In municipalities in which combined sewers are operated, the Census estimates 

of population may be reduced proportional to the fraction, based on estimated lengths, of the length of 

combined sewers over the sum of the length of combined sewers and municipal separate storm sewers 

where an applicant has submitted the NPDES permit number associated with each discharge point and 

a map indicating areas served by combined sewers and the location of any combined sewer overflow 

discharge point. 

(4) Any person may petition the Director for the designation of a large, medium, or small municipal 

separate storm sewer system as defined by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section. 

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(5) The Director shall make a final determination on any petition received under this section within 90 

days after receiving the petition with the exception of petitions to designate a small MS4 in which case 

the Director shall make a final determination on the petition within 180 days after its receipt. 

(g) Conditional exclusion for “no exposure” of industrial activities and materials to storm water. 

Discharges composed entirely of storm water are not storm water discharges associated with industrial 

activity if there is “no exposure” of industrial materials and activities to rain, snow, snowmelt and/or 

runoff, and the discharger satisfies the conditions in paragraphs (g)(1) through (g)(4) of this section. “No 

exposure” means that all industrial materials and activities are protected by a storm resistant shelter to 

prevent exposure to rain, snow, snowmelt, and/or runoff. Industrial materials or activities include, but are 

not limited to, material handling equipment or activities, industrial machinery, raw materials, intermediate 

products, by-products, final products, or waste products. Material handling activities include the storage, 

loading and unloading, transportation, or conveyance of any raw material, intermediate product, final 

product or waste product. 

(1) Qualification. To qualify for this exclusion, the operator of the discharge must: 

(i) Provide a storm resistant shelter to protect industrial materials and activities from exposure to rain, 

snow, snow melt, and runoff; 

(ii) Complete and sign (according to §122.22) a certification that there are no discharges of storm water 

contaminated by exposure to industrial materials and activities from the entire facility, except as provided 

in paragraph (g)(2) of this section; 

(iii) Submit the signed certification to the NPDES permitting authority once every five years; 

(iv) Allow the Director to inspect the facility to determine compliance with the “no exposure” conditions; 

(v) Allow the Director to make any “no exposure” inspection reports available to the public upon request; 

and 

(vi) For facilities that discharge through an MS4, upon request, submit a copy of the certification of “no 

exposure” to the MS4 operator, as well as allow inspection and public reporting by the MS4 operator. 

(2) Industrial materials and activities not requiring storm resistant shelter. To qualify for this exclusion, 

storm resistant shelter is not required for: 

(i) Drums, barrels, tanks, and similar containers that are tightly sealed, provided those containers are not 

deteriorated and do not leak (“Sealed” means banded or otherwise secured and without operational taps 

or valves); 

(ii) Adequately maintained vehicles used in material handling; and 

(iii) Final products, other than products that would be mobilized in storm water discharge (e.g., rock salt). 

(3) Limitations. (i) Storm water discharges from construction activities identified in paragraphs (b)(14)(x) 

and (b)(15) are not eligible for this conditional exclusion. 

(ii) This conditional exclusion from the requirement for an NPDES permit is available on a facility-wide 

basis only, not for individual outfalls. If a facility has some discharges of storm water that would 

otherwise be “no exposure” discharges, individual permit requirements should be adjusted accordingly. 

(iii) If circumstances change and industrial materials or activities become exposed to rain, snow, snow 

melt, and/or runoff, the conditions for this exclusion no longer apply. In such cases, the discharge 

becomes subject to enforcement for un-permitted discharge. Any conditionally exempt discharger who 

anticipates changes in circumstances should apply for and obtain permit authorization prior to the 

change of circumstances. 

(iv) Notwithstanding the provisions of this paragraph, the NPDES permitting authority retains the 

authority to require permit authorization (and deny this exclusion) upon making a determination that the 

discharge causes, has a reasonable potential to cause, or contributes to an instream excursion above 

an applicable water quality standard, including designated uses. 

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(4) Certification. The no exposure certification must require the submission of the following information, 

at a minimum, to aid the NPDES permitting authority in determining if the facility qualifies for the no 

exposure exclusion: 

(i) The legal name, address and phone number of the discharger (see §122.21(b)); 

(ii) The facility name and address, the county name and the latitude and longitude where the facility is 

located; 

(iii) The certification must indicate that none of the following materials or activities are, or will be in the 

foreseeable future, exposed to precipitation: 

(A) Using, storing or cleaning industrial machinery or equipment, and areas where residuals from using, 

storing or cleaning industrial machinery or equipment remain and are exposed to storm water; 

(B) Materials or residuals on the ground or in storm water inlets from spills/leaks; 

(C) Materials or products from past industrial activity; 

(D) Material handling equipment (except adequately maintained vehicles); 

(E) Materials or products during loading/unloading or transporting activities; 

(F) Materials or products stored outdoors (except final products intended for outside use, e.g., new cars, 

where exposure to storm water does not result in the discharge of pollutants); 

(G) Materials contained in open, deteriorated or leaking storage drums, barrels, tanks, and similar 

containers; 

(H) Materials or products handled/stored on roads or railways owned or maintained by the discharger; 

(I) Waste material (except waste in covered, non-leaking containers, e.g., dumpsters); 

(J) Application or disposal of process wastewater (unless otherwise permitted); and 

(K) Particulate matter or visible deposits of residuals from roof stacks/vents not otherwise regulated, i.e., 

under an air quality control permit, and evident in the storm water outflow; 

(iv) All “no exposure” certifications must include the following certification statement, and be signed in 

accordance with the signatory requirements of §122.22: “I certify under penalty of law that I have read 

and understand the eligibility requirements for claiming a condition of “no exposure” and obtaining an 

exclusion from NPDES storm water permitting; and that there are no discharges of storm water 

contaminated by exposure to industrial activities or materials from the industrial facility identified in this 

document (except as allowed under paragraph (g)(2)) of this section. I understand that I am obligated to 

submit a no exposure certification form once every five years to the NPDES permitting authority and, if 

requested, to the operator of the local MS4 into which this facility discharges (where applicable). I 

understand that I must allow the NPDES permitting authority, or MS4 operator where the discharge is 

into the local MS4, to perform inspections to confirm the condition of no exposure and to make such 

inspection reports publicly available upon request. I understand that I must obtain coverage under an 

NPDES permit prior to any point source discharge of storm water from the facility. I certify under penalty 

of law that this document and all attachments were prepared under my direction or supervision in 

accordance with a system designed to assure that qualified personnel properly gathered and evaluated 

the information submitted. Based upon my inquiry of the person or persons who manage the system, or 

those persons directly involved in gathering the information, the information submitted is to the best of 

my knowledge and belief true, accurate and complete. I am aware there are significant penalties for 

submitting false information, including the possibility of fine and imprisonment for knowing violations.” 

[55 FR 48063, Nov. 16, 1990] 

Editorial Note: For Federal Register citations affecting §122.26, see the List of CFR Sections 

Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov. 

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§ 122.27 Silvicultural activities (applicable to State NPDES programs, see §123.25). 

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(a) Permit requirement. Silvicultural point sources, as defined in this section, as point sources subject to 

the NPDES permit program. 

(b) Definitions. (1) Silvicultural point source means any discernible, confined and discrete conveyance 

related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in 

connection with silvicultural activities and from which pollutants are discharged into waters of the United 

States. The term does not include non-point source silvicultural activities such as nursery operations, 

site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and 

fire control, harvesting operations, surface drainage, or road construction and maintenance from which 

there is natural runoff. However, some of these activities (such as stream crossing for roads) may 

involve point source discharges of dredged or fill material which may require a CWA section 404 permit 

(See 33 CFR 209.120 and part 233). 

(2) Rock crushing and gravel washing facilities means facilities which process crushed and broken 

stone, gravel, and riprap (See 40 CFR part 436, subpart B, including the effluent limitations guidelines). 

(3) Log sorting and log storage facilities means facilities whose discharges result from the holding of 

unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in selfcontained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally 

on the logs (wet decking). (See 40 CFR part 429, subpart I, including the effluent limitations guidelines). 

§ 122.28 General permits (applicable to State NPDES programs, see §123.25). 

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(a) Coverage. The Director may issue a general permit in accordance with the following: 

(1) Area. The general permit shall be written to cover one or more categories or subcategories of 

discharges or sludge use or disposal practices or facilities described in the permit under paragraph (a)

(2)(ii) of this section, except those covered by individual permits, within a geographic area. The area 

should correspond to existing geographic or political boundaries such as: 

(i) Designated planning areas under sections 208 and 303 of CWA; 

(ii) Sewer districts or sewer authorities; 

(iii) City, county, or State political boundaries; 

(iv) State highway systems; 

(v) Standard metropolitan statistical areas as defined by the Office of Management and Budget; 

(vi) Urbanized areas as designated by the Bureau of the Census according to criteria in 30 FR 15202 

(May 1, 1974); or 

(vii) Any other appropriate division or combination of boundaries. 

(2) Sources. The general permit may be written to regulate one or more categories or subcategories of 

discharges or sludge use or disposal practices or facilities, within the area described in paragraph (a)(1) 

of this section, where the sources within a covered subcategory of discharges are either: 

(i) Storm water point sources; or (ii) One or more categories or subcategories of point sources other than 

storm water point sources, or one or more categories or subcategories of “treatment works treating 

domestic sewage”, if the sources or “treatment works treating domestic sewage” within each category or 

subcategory all: 

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(A) Involve the same or substantially similar types of operations; 

(B) Discharge the same types of wastes or engage in the same types of sludge use or disposal 

practices; 

(C) Require the same effluent limitations, operating conditions, or standards for sewage sludge use or 

disposal; 

(D) Require the same or similar monitoring; and (E) In the opinion of the Director, are more appropriately 

controlled under a general permit than under individual permits. 

(3) Water quality-based limits. Where sources within a specific category or subcategory of dischargers 

are subject to water quality-based limits imposed pursuant to §122.44, the sources in that specific 

category or subcategory shall be subject to the same water quality-based effluent limitations. 

(4) Other requirements. (i) The general permit must clearly identify the applicable conditions for each 

category or subcategory of dischargers or treatment works treating domestic sewage covered by the 

permit. 

(ii) The general permit may exclude specified sources or areas from coverage. 

(b) Administration —(1) In general. General permits may be issued, modified, revoked and reissued, or 

terminated in accordance with applicable requirements of part 124 of this chapter or corresponding State 

regulations. Special procedures for issuance are found at §123.44 of this chapter for States. 

(2) Authorization to discharge, or authorization to engage in sludge use and disposal practices. (i) 

Except as provided in paragraphs (b)(2)(v) and (b)(2)(vi) of this section, dischargers (or treatment works 

treating domestic sewage) seeking coverage under a general permit shall submit to the Director a 

written notice of intent to be covered by the general permit. A discharger (or treatment works treating 

domestic sewage) who fails to submit a notice of intent in accordance with the terms of the permit is not 

authorized to discharge, (or in the case of sludge disposal permit, to engage in a sludge use or disposal 

practice), under the terms of the general permit unless the general permit, in accordance with paragraph 

(b)(2)(v) of this section, contains a provision that a notice of intent is not required or the Director notifies 

a discharger (or treatment works treating domestic sewage) that it is covered by a general permit in 

accordance with paragraph (b)(2)(vi) of this section. A complete and timely, notice of intent (NOI), to be 

covered in accordance with general permit requirements, fulfills the requirements for permit applications 

for purposes of §§122.6, 122.21 and 122.26. 

(ii) The contents of the notice of intent shall be specified in the general permit and shall 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, and the receiving stream(s). General permits for storm water discharges associated with 

industrial activity from inactive mining, inactive oil and gas operations, or inactive landfills occurring on 

Federal lands where an operator cannot be identified may contain alternative notice of intent 

requirements. All notices of intent shall be signed in accordance with §122.22. Notices of intent for 

coverage under a general permit for concentrated animal feeding operations must include the 

information specified in §122.21(i)(1), including a topographic map. 

(iii) General permits shall specify the deadlines for submitting notices of intent to be covered and the 

date(s) when a discharger is authorized to discharge under the permit; 

(iv) General permits shall specify whether a discharger (or treatment works treating domestic sewage) 

that has submitted a complete and timely notice of intent to be covered in accordance with the general 

permit and that is eligible for coverage under the permit, is authorized to discharge, (or in the case of a 

sludge disposal permit, to engage in a sludge use or disposal practice), in accordance with the permit 

either upon receipt of the notice of intent by the Director, after a waiting period specified in the general 

permit, on a date specified in the general permit, or upon receipt of notification of inclusion by the 

Director. Coverage may be terminated or revoked in accordance with paragraph (b)(3) of this section. 

(v) Discharges other than discharges from publicly owned treatment works, combined sewer overflows, 

municipal separate storm sewer systems, primary industrial facilities, and storm water discharges 

associated with industrial activity, may, at the discretion of the Director, be authorized to discharge under 

a general permit without submitting a notice of intent where the Director finds that a notice of intent 

requirement would be inappropriate. In making such a finding, the Director shall consider: the type of 

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discharge; the expected nature of the discharge; the potential for toxic and conventional pollutants in the 

discharges; the expected volume of the discharges; other means of identifying discharges covered by 

the permit; and the estimated number of discharges to be covered by the permit. The Director shall 

provide in the public notice of the general permit the reasons for not requiring a notice of intent. 

(vi) The Director may notify a discharger (or treatment works treating domestic sewage) that it is covered 

by a general permit, even if the discharger (or treatment works treating domestic sewage) has not 

submitted a notice of intent to be covered. A discharger (or treatment works treating domestic sewage) 

so notified may request an individual permit under paragraph (b)(3)(iii) of this section. 

(vii) A CAFO owner or operator may be authorized to discharge under a general permit only in 

accordance with the process described in §122.23(h). 

(3) Requiring an individual permit. (i) The Director may require any discharger authorized by a general 

permit to apply for and obtain an individual NPDES permit. Any interested person may petition the 

Director to take action under this paragraph. Cases where an individual NPDES permit may be required 

include the following: 

(A) The discharger or “treatment works treating domestic sewage” is not in compliance with the 

conditions of the general NPDES permit; 

(B) A change has occurred in the availability of demonstrated technology or practices for the control or 

abatement of pollutants applicable to the point source or treatment works treating domestic sewage; 

(C) Effluent limitation guidelines are promulgated for point sources covered by the general NPDES 

permit; 

(D) A Water Quality Management plan containing requirements applicable to such point sources is 

approved; 

(E) 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; 

(F) Standards for sewage sludge use or disposal have been promulgated for the sludge use and 

disposal practice covered by the general NPDES permit; or 

(G) The discharge(s) is a significant contributor of pollutants. In making this determination, the Director 

may consider the following factors: 

( 1 ) The location of the discharge with respect to waters of the United States; 

( 2 ) The size of the discharge; 

( 3 ) The quantity and nature of the pollutants discharged to waters of the United States; and 

( 4 ) Other relevant factors; 

(ii) For EPA issued general permits only, the Regional Administrator may require any owner or operator 

authorized by a general permit to apply for an individual NPDES permit as provided in paragraph (b)(3)

(i) of this section, only if the owner or operator has been notified in writing that a permit application is 

required. This notice shall include a brief statement of the reasons for this decision, an application form, 

a statement setting a time for the owner or operator to file the application, and a statement that on the 

effective date of the individual NPDES permit the general permit as it applies to the individual permittee 

shall automatically terminate. The Director may grant additional time upon request of the applicant. 

(iii) Any owner or operator authorized by a general permit may request to be excluded from the coverage 

of the general permit by applying for an individual permit. The owner or operator shall submit an 

application under §122.21, with reasons supporting the request, to the Director no later than 90 days 

after the publication by EPA of the general permit in the Federal Register or the publication by a State 

in accordance with applicable State law. The request shall be processed under part 124 or applicable 

State procedures. The request shall be granted by issuing of any individual permit if the reasons cited by 

the owner or operator are adequate to support the request. 

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(iv) When an individual NPDES permit is issued to an owner or operator otherwise subject to a general 

NPDES permit, the applicability of the general permit to the individual NPDES permittee is automatically 

terminated on the effective date of the individual permit. 

(v) A source excluded from a general permit solely because it already has an individual permit may 

request that the individual permit be revoked, and that it be covered by the general permit. Upon 

revocation of the individual permit, the general permit shall apply to the source. 

(c) Offshore oil and gas facilities (Not applicable to State programs). (1) The Regional Administrator 

shall, except as provided below, issue general permits covering discharges from offshore oil and gas 

exploration and production facilities within the Region's jurisdiction. Where the offshore area includes 

areas, such as areas of biological concern, for which separate permit conditions are required, the 

Regional Administrator may issue separate general permits, individual permits, or both. The reason for 

separate general permits or individual permits shall be set forth in the appropriate fact sheets or 

statements of basis. Any statement of basis or fact sheet for a draft permit shall include the Regional 

Administrator's tentative determination as to whether the permit applies to “new sources,” “new 

dischargers,” or existing sources and the reasons for this determination, and the Regional 

Administrator's proposals as to areas of biological concern subject either to separate individual or 

general permits. For Federally leased lands, the general permit area should generally be no less 

extensive than the lease sale area defined by the Department of the Interior. 

(2) Any interested person, including any prospective permittee, may petition the Regional Administrator 

to issue a general permit. Unless the Regional Administrator determines under paragraph (c)(1) of this 

section that no general permit is appropriate, he shall promptly provide a project decision schedule 

covering the issuance of the general permit or permits for any lease sale area for which the Department 

of the Interior has published a draft environmental impact statement. The project decision schedule shall 

meet the requirements of §124.3(g), and shall include a schedule providing for the issuance of the final 

general permit or permits not later than the date of the final notice of sale projected by the Department of 

the Interior or six months after the date of the request, whichever is later. The Regional Administrator 

may, at his discretion, issue a project decision schedule for offshore oil and gas facilities in the territorial 

seas. 

(3) Nothing in this paragraph (c) shall affect the authority of the Regional Administrator to require an 

individual permit under §122.28(b)(3)(i) (A) through (G). 

(Clean Water Act (33 U.S.C. 1251 et seq. ), Safe Drinking Water Act (42 U.S.C. 300f et seq. ), Clean Air 

Act (42 U.S.C. 7401 et seq. ), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq. )) 

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 49 FR 38048, Sept. 26, 1984; 

50 FR 6940, Feb. 19, 1985; 54 FR 18782, May 2, 1989; 55 FR 48072, Nov. 16, 1990; 57 FR 11412 and 

11413, Apr. 2, 1992; 64 FR 68841, Dec. 8, 1999; 65 FR 30908, May 15, 2000; 68 FR 7268, Feb. 12, 

2003; 73 FR 70483, Nov. 20, 2008] 

§ 122.29 New sources and new dischargers. 

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(a) Definitions. (1) New source and new discharger are defined in §122.2. [See Note 2.] 

(2) Source means any building, structure, facility, or installation from which there is or may be a 

discharge of pollutants. 

(3) Existing source means any source which is not a new source or a new discharger. 

(4) Site is defined in §122.2; 

(5) Facilities or equipment means buildings, structures, process or production equipment or machinery 

which form a permanent part of the new source and which will be used in its operation, if these facilities 

or equipment are of such value as to represent a substantial commitment to construct. It excludes 

facilities or equipment used in connection with feasibility, engineering, and design studies regarding the 

source or water pollution treatment for the source. 

(b) Criteria for new source determination. (1) Except as otherwise provided in an applicable new source 

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performance standard, a source is a “new source” if it meets the definition of “new source” in §122.2, 

and 

(i) It is constructed at a site at which no other source is located; or 

(ii) It totally replaces the process or production equipment that causes the discharge of pollutants at an 

existing source; or 

(iii) Its processes are substantially independent of an existing source at the same site. In determining 

whether these processes are substantially independent, the Director shall consider such factors as the 

extent to which the new facility is integrated with the existing plant; and the extent to which the new 

facility is engaged in the same general type of activity as the existing source. 

(2) A source meeting the requirements of paragraphs (b)(1) (i), (ii), or (iii) of this section is a new source 

only if a new source performance standard is independently applicable to it. If there is no such 

independently applicable standard, the source is a new discharger. See §122.2. 

(3) Construction on a site at which an existing source is located results in a modification subject to 

§122.62 rather than a new source (or a new discharger) if the construction does not create a new 

building, structure, facility, or installation meeting the criteria of paragraph (b)(1) (ii) or (iii) of this section 

but otherwise alters, replaces, or adds to existing process or production equipment. 

(4) Construction of a new source as defined under §122.2 has commenced if the owner or operator has: 

(i) Begun, or caused to begin as part of a continuous on-site construction program: 

(A) Any placement, assembly, or installation of facilities or equipment; or 

(B) Significant site preparation work including clearing, excavation or removal of existing buildings, 

structures, or facilities which is necessary for the placement, assembly, or installation of new source 

facilities or equipment; or 

(ii) Entered into a binding contractual obligation for the purchase of facilities or equipment which are 

intended to be used in its operation with a reasonable time. Options to purchase or contracts which can 

be terminated or modified without substantial loss, and contracts for feasibility engineering, and design 

studies do not constitute a contractual obligation under the paragraph. 

(c) Requirement for an environmental impact statement. (1) The issuance of an NPDES permit to new 

source: 

(i) By EPA may be a major Federal action significantly affecting the quality of the human environment 

within the meaning of the National Environmental Policy Act of 1969 (NEPA), 33 U.S.C. 4321 et seq. 

and is subject to the environmental review provisions of NEPA as set out in 40 CFR part 6, subpart F. 

EPA will determine whether an Environmental Impact Statement (EIS) is required under §122.21(l) 

(special provisions for applications from new sources) and 40 CFR part 6, subpart F; 

(ii) By an NPDES approved State is not a Federal action and therefore does not require EPA to conduct 

an environmental review. 

(2) An EIS prepared under this paragraph shall include a recommendation either to issue or deny the 

permit. 

(i) If the recommendation is to deny the permit, the final EIS shall contain the reasons for the 

recommendation and list those measures, if any, which the applicant could take to cause the 

recommendation to be changed; 

(ii) If the recommendation is to issue the permit, the final EIS shall recommend the actions, if any, which 

the permittee should take to prevent or minimize any adverse environmental impacts; 

(3) The Regional Administrator, to the extent allowed by law, shall issue, condition (other than imposing 

effluent limitations), or deny the new source NPDES permit following a complete evaluation of any 

significant beneficial and adverse impacts of the proposed action and a review of the recommendations 

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contained in the EIS or finding of no significant impact. 

(d) Effect of compliance with new source performance standards. (The provisions of this paragraph do 

not apply to existing sources which modify their pollution control facilities or construct new pollution 

control facilities and achieve performance standards, but which are neither new sources or new 

dischargers or otherwise do not meet the requirements of this paragraph.) 

(1) Except as provided in paragraph (d)(2) of this section, any new discharger, the construction of which 

commenced after October 18, 1972, or new source which meets the applicable promulgated new source 

performance standards before the commencement of discharge, may not be subject to any more 

stringent new source performance standards or to any more stringent technology-based standards 

under section 301(b)(2) of CWA for the soonest ending of the following periods: 

(i) Ten years from the date that construction is completed; 

(ii) Ten years from the date the source begins to discharge process or other nonconstruction related 

wastewater; or 

(iii) The period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or 

both) of the Internal Revenue Code of 1954. 

(2) The protection from more stringent standards of performance afforded by paragraph (d)(1) of this 

section does not apply to: 

(i) Additional or more stringent permit conditions which are not technology based; for example, 

conditions based on water quality standards, or toxic effluent standards or prohibitions under section 307

(a) of CWA; or 

(ii) Additional permit conditions in accordance with §125.3 controlling toxic pollutants or hazardous 

substances which are not controlled by new source performance standards. This includes permit 

conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances 

when control of these pollutants has been specifically identified as the method to control the toxic 

pollutants or hazardous substances. 

(3) When an NPDES permit issued to a source with a “protection period” under paragraph (d)(1) of this 

section will expire on or after the expiration of the protection period, that permit shall require the owner 

or operator of the source to comply with the requirements of section 301 and any other then applicable 

requirements of CWA immediately upon the expiration of the protection period. No additional period for 

achieving compliance with these requirements may be allowed except when necessary to achieve 

compliance with requirements promulgated less than 3 years before the expiration of the protection 

period. 

(4) The owner or operator of a new source, a new discharger which commenced discharge after August 

13, 1979, or a recommencing discharger shall install and have in operating condition, and shall “start-up” 

all pollution control equipment required to meet the conditions of its permits before beginning to 

discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all 

permit conditions. The requirements of this paragraph do not apply if the owner or operator is issued a 

permit containing a compliance schedule under §122.47(a)(2). 

(5) After the effective date of new source performance standards, it shall be unlawful for any owner or 

operator of any new source to operate the source in violation of those standards applicable to the 

source. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38048, Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 

50 FR 6941, Feb. 19, 1985; 65 FR 30908, May 15, 2000] 

§ 122.30 What are the objectives of the storm water regulations for small MS4s? 

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(a) Sections 122.30 through 122.37 are written in a “readable regulation” format that includes both rule 

requirements and EPA guidance that is not legally binding. EPA has clearly distinguished its 

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recommended guidance from the rule requirements by putting the guidance in a separate paragraph 

headed by the word “guidance”. 

(b) Under the statutory mandate in section 402(p)(6) of the Clean Water Act, the purpose of this portion 

of the storm water program is to designate additional sources that need to be regulated to protect water 

quality and to establish a comprehensive storm water program to regulate these sources. (Because the 

storm water program is part of the National Pollutant Discharge Elimination System (NPDES) Program, 

you should also refer to §122.1 which addresses the broader purpose of the NPDES program.) 

(c) Storm water runoff continues to harm the nation's waters. Runoff from lands modified by human 

activities can harm surface water resources in several ways including by changing natural hydrologic 

patterns and by elevating pollutant concentrations and loadings. Storm water runoff may contain or 

mobilize high levels of contaminants, such as sediment, suspended solids, nutrients, heavy metals, 

pathogens, toxins, oxygen-demanding substances, and floatables. 

(d) EPA strongly encourages partnerships and the watershed approach as the management framework 

for efficiently, effectively, and consistently protecting and restoring aquatic ecosystems and protecting 

public health. 

[64 FR 68842, Dec. 8, 1999] 

§ 122.31 As a Tribe, what is my role under the NPDES storm water program? 

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As a Tribe you may: 

(a) Be authorized to operate the NPDES program including the storm water program, after EPA 

determines that you are eligible for treatment in the same manner as a State under §§123.31 through 

123.34 of this chapter. (If you do not have an authorized NPDES program, EPA implements the program 

for discharges on your reservation as well as other Indian country, generally.); 

(b) Be classified as an owner of a regulated small MS4, as defined in §122.32. (Designation of your 

Tribe as an owner of a small MS4 for purposes of this part is an approach that is consistent with EPA's 

1984 Indian Policy of operating on a government-to-government basis with EPA looking to Tribes as the 

lead governmental authorities to address environmental issues on their reservations as appropriate. If 

you operate a separate storm sewer system that meets the definition of a regulated small MS4, you are 

subject to the requirements under §§122.33 through 122.35. If you are not designated as a regulated 

small MS4, you may ask EPA to designate you as such for the purposes of this part.); or 

(c) Be a discharger of storm water associated with industrial activity or small construction activity under 

§§122.26(b)(14) or (b)(15), in which case you must meet the applicable requirements. Within Indian 

country, the NPDES permitting authority is generally EPA, unless you are authorized to administer the 

NPDES program. 

[64 FR 68842, Dec. 8, 1999] 

§ 122.32 As an operator of a small MS4, am I regulated under the NPDES storm water 

program? 

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(a) Unless you qualify for a waiver under paragraph (c) of this section, you are regulated if you operate a 

small MS4, including but not limited to systems operated by federal, State, Tribal, and local 

governments, including State departments of transportation; and: 

(1) Your small MS4 is located in an urbanized area as determined by the latest Decennial Census by the 

Bureau of the Census. (If your small MS4 is not located entirely within an urbanized area, only the 

portion that is within the urbanized area is regulated); or 

(2) You are designated by the NPDES permitting authority, including where the designation is pursuant 

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to §§123.35(b)(3) and (b)(4) of this chapter, or is based upon a petition under §122.26(f). 

(b) You may be the subject of a petition to the NPDES permitting authority to require an NPDES permit 

for your discharge of storm water. If the NPDES permitting authority determines that you need a permit, 

you are required to comply with §§122.33 through 122.35. 

(c) The NPDES permitting authority may waive the requirements otherwise applicable to you if you meet 

the criteria of paragraph (d) or (e) of this section. If you receive a waiver under this section, you may 

subsequently be required to seek coverage under an NPDES permit in accordance with §122.33(a) if 

circumstances change. (See also §123.35(b) of this chapter.) 

(d) The NPDES permitting authority may waive permit coverage if your MS4 serves a population of less 

than 1,000 within the urbanized area and you meet the following criteria: 

(1) Your system is not contributing substantially to the pollutant loadings of a physically interconnected 

MS4 that is regulated by the NPDES storm water program (see §123.35(b)(4) of this chapter); and 

(2) If you discharge any pollutant(s) that have been identified as a cause of impairment of any water 

body to which you discharge, storm water controls are not needed based on wasteload allocations that 

are part of an EPA approved or established “total maximum daily load” (TMDL) that addresses the 

pollutant(s) of concern. 

(e) The NPDES permitting authority may waive permit coverage if your MS4 serves a population under 

10,000 and you meet the following criteria: 

(1) The permitting authority has evaluated all waters of the U.S., including small streams, tributaries, 

lakes, and ponds, that receive a discharge from your MS4; 

(2) For all such waters, the permitting authority has determined that storm water controls are not needed 

based on wasteload allocations that are part of an EPA approved or established TMDL that addresses 

the pollutant(s) of concern or, if a TMDL has not been developed or approved, an equivalent analysis 

that determines sources and allocations for the pollutant(s) of concern; 

(3) For the purpose of this paragraph (e), the pollutant(s) of concern include biochemical oxygen 

demand (BOD), sediment or a parameter that addresses sediment (such as total suspended solids, 

turbidity or siltation), pathogens, oil and grease, and any pollutant that has been identified as a cause of 

impairment of any water body that will receive a discharge from your MS4; and 

(4) The permitting authority has determined that future discharges from your MS4 do not have the 

potential to result in exceedances of water quality standards, including impairment of designated uses, 

or other significant water quality impacts, including habitat and biological impacts. 

[64 FR 68842, Dec. 8, 1999] 

§ 122.33 If I am an operator of a regulated small MS4, how do I apply for an NPDES 

permit and when do I have to apply? 

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(a) If you operate a regulated small MS4 under §122.32, you must seek coverage under a NPDES 

permit issued by your NPDES permitting authority. If you are located in an NPDES authorized State, 

Tribe, or Territory, then that State, Tribe, or Territory is your NPDES permitting authority. Otherwise, 

your NPDES permitting authority is the EPA Regional Office. 

(b) You must seek authorization to discharge under a general or individual NPDES permit, as follows: 

(1) If your NPDES permitting authority has issued a general permit applicable to your discharge and you 

are seeking coverage under the general permit, you must submit a Notice of Intent (NOI) that includes 

the information on your best management practices and measurable goals required by §122.34(d). You 

may file your own NOI, or you and other municipalities or governmental entities may jointly submit an 

NOI. If you want to share responsibilities for meeting the minimum measures with other municipalities or 

governmental entities, you must submit an NOI that describes which minimum measures you will 

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implement and identify the entities that will implement the other minimum measures within the area 

served by your MS4. The general permit will explain any other steps necessary to obtain permit 

authorization. 

(2)(i) If you are seeking authorization to discharge under an individual permit and wish to implement a 

program under §122.34, you must submit an application to your NPDES permitting authority that 

includes the information required under §§122.21(f) and 122.34(d), an estimate of square mileage 

served by your small MS4, and any additional information that your NPDES permitting authority 

requests. A storm sewer map that satisfies the requirement of §122.34(b)(3)(i) will satisfy the map 

requirement in §122.21(f)(7). 

(ii) If you are seeking authorization to discharge under an individual permit and wish to implement a 

program that is different from the program under §122.34, you will need to comply with the permit 

application requirements of §122.26(d). You must submit both Parts of the application requirements in 

§§122.26(d)(1) and (2) by March 10, 2003. You do not need to submit the information required by 

§§122.26(d)(1)(ii) and (d)(2) regarding your legal authority, unless you intend for the permit writer to take 

such information into account when developing your other permit conditions. 

(iii) If allowed by your NPDES permitting authority, you and another regulated entity may jointly apply 

under either paragraph (b)(2)(i) or (b)(2)(ii) of this section to be co-permittees under an individual permit. 

(3) If your small MS4 is in the same urbanized area as a medium or large MS4 with an NPDES storm 

water permit and that other MS4 is willing to have you participate in its storm water program, you and the 

other MS4 may jointly seek a modification of the other MS4 permit to include you as a limited copermittee. As a limited co-permittee, you will be responsible for compliance with the permit's conditions 

applicable to your jurisdiction. If you choose this option you will need to comply with the permit 

application requirements of §122.26, rather than the requirements of §122.34. You do not need to 

comply with the specific application requirements of §122.26(d)(1)(iii) and (iv) and (d)(2)(iii) (discharge 

characterization). You may satisfy the requirements in §122.26 (d)(1)(v) and (d)(2)(iv) (identification of a 

management program) by referring to the other MS4's storm water management program. 

(4) Guidance: In referencing an MS4's storm water management program, you should briefly describe 

how the existing plan will address discharges from your small MS4 or would need to be supplemented in 

order to adequately address your discharges. You should also explain your role in coordinating storm 

water pollutant control activities in your MS4, and detail the resources available to you to accomplish the 

plan. 

(c) If you operate a regulated small MS4: 

(1) Designated under §122.32(a)(1), you must apply for coverage under an NPDES permit, or apply for a 

modification of an existing NPDES permit under paragraph (b)(3) of this section by March 10, 2003, 

unless your MS4 serves a jurisdiction with a population under 10,000 and the NPDES permitting 

authority has established a phasing schedule under §123.35(d)(3) of this chapter. 

(2) Designated under §122.32(a)(2), you must apply for coverage under an NPDES permit, or apply for a 

modification of an existing NPDES permit under paragraph (b)(3) of this section, within 180 days of 

notice, unless the NPDES permitting authority grants a later date. 

[64 FR 68843, Dec. 8, 1999] 

§ 122.34 As an operator of a regulated small MS4, what will my NPDES MS4 storm 

water permit require? 

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(a) Your NPDES MS4 permit will require at a minimum that you develop, implement, and enforce a 

storm water management program designed to reduce the discharge of pollutants from your MS4 to the 

maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality 

requirements of the Clean Water Act. Your storm water management program must include the 

minimum control measures described in paragraph (b) of this section unless you apply for a permit 

under §122.26(d). For purposes of this section, narrative effluent limitations requiring implementation of 

best management practices (BMPs) are generally the most appropriate form of effluent limitations when 

designed to satisfy technology requirements (including reductions of pollutants to the maximum extent 

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practicable) and to protect water quality. Implementation of best management practices consistent with 

the provisions of the storm water management program required pursuant to this section and the 

provisions of the permit required pursuant to §122.33 constitutes compliance with the standard of 

reducing pollutants to the “maximum extent practicable.” Your NPDES permitting authority will specify a 

time period of up to 5 years from the date of permit issuance for you to develop and implement your 

program. 

(b) Minimum control measures —(1) Public education and outreach on storm water impacts. (i) You 

must implement a public education program to distribute educational materials to the community or 

conduct equivalent outreach activities about the impacts of storm water discharges on water bodies and 

the steps that the public can take to reduce pollutants in storm water runoff. 

(ii) Guidance: You may use storm water educational materials provided by your State, Tribe, EPA, 

environmental, public interest or trade organizations, or other MS4s. The public education program 

should inform individuals and households about the steps they can take to reduce storm water pollution, 

such as ensuring proper septic system maintenance, ensuring the proper use and disposal of landscape 

and garden chemicals including fertilizers and pesticides, protecting and restoring riparian vegetation, 

and properly disposing of used motor oil or household hazardous wastes. EPA recommends that the 

program inform individuals and groups how to become involved in local stream and beach restoration 

activities as well as activities that are coordinated by youth service and conservation corps or other 

citizen groups. EPA recommends that the public education program be tailored, using a mix of locally 

appropriate strategies, to target specific audiences and communities. Examples of strategies include 

distributing brochures or fact sheets, sponsoring speaking engagements before community groups, 

providing public service announcements, implementing educational programs targeted at school age 

children, and conducting community-based projects such as storm drain stenciling, and watershed and 

beach cleanups. In addition, EPA recommends that some of the materials or outreach programs be 

directed toward targeted groups of commercial, industrial, and institutional entities likely to have 

significant storm water impacts. For example, providing information to restaurants on the impact of 

grease clogging storm drains and to garages on the impact of oil discharges. You are encouraged to 

tailor your outreach program to address the viewpoints and concerns of all communities, particularly 

minority and disadvantaged communities, as well as any special concerns relating to children. 

(2) Public involvement/participation. (i) You must, at a minimum, comply with State, Tribal and local 

public notice requirements when implementing a public involvement/ participation program. 

(ii) Guidance: EPA recommends that the public be included in developing, implementing, and reviewing 

your storm water management program and that the public participation process should make efforts to 

reach out and engage all economic and ethnic groups. Opportunities for members of the public to 

participate in program development and implementation include serving as citizen representatives on a 

local storm water management panel, attending public hearings, working as citizen volunteers to 

educate other individuals about the program, assisting in program coordination with other pre-existing 

programs, or participating in volunteer monitoring efforts. (Citizens should obtain approval where 

necessary for lawful access to monitoring sites.) 

(3) Illicit discharge detection and elimination. (i) You must develop, implement and enforce a program to 

detect and eliminate illicit discharges (as defined at §122.26(b)(2)) into your small MS4. 

(ii) You must: 

(A) Develop, if not already completed, a storm sewer system map, showing the location of all outfalls 

and the names and location of all waters of the United States that receive discharges from those outfalls; 

(B) To the extent allowable under State, Tribal or local law, effectively prohibit, through ordinance, or 

other regulatory mechanism, non-storm water discharges into your storm sewer system and implement 

appropriate enforcement procedures and actions; 

(C) Develop and implement a plan to detect and address non-storm water discharges, including illegal 

dumping, to your system; and 

(D) Inform public employees, businesses, and the general public of hazards associated with illegal 

discharges and improper disposal of waste. 

(iii) You need address the following categories of non-storm water discharges or flows (i.e., illicit 

discharges) only if you identify them as significant contributors of pollutants to your small MS4: water line 

flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water 

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infiltration (as defined at 40 CFR 35.2005(20)), uncontaminated pumped ground water, discharges from 

potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water 

from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from 

riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water 

(discharges or flows from fire fighting activities are excluded from the effective prohibition against nonstorm water and need only be addressed where they are identified as significant sources of pollutants to 

waters of the United States). 

(iv) Guidance: EPA recommends that the plan to detect and address illicit discharges include the 

following four components: procedures for locating priority areas likely to have illicit discharges; 

procedures for tracing the source of an illicit discharge; procedures for removing the source of the 

discharge; and procedures for program evaluation and assessment. EPA recommends visually 

screening outfalls during dry weather and conducting field tests of selected pollutants as part of the 

procedures for locating priority areas. Illicit discharge education actions may include storm drain 

stenciling, a program to promote, publicize, and facilitate public reporting of illicit connections or 

discharges, and distribution of outreach materials. 

(4) Construction site storm water runoff control. (i) You must develop, implement, and enforce a program 

to reduce pollutants in any storm water runoff to your small MS4 from construction activities that result in 

a land disturbance of greater than or equal to one acre. Reduction of storm water discharges from 

construction activity disturbing less than one acre must be included in your program if that construction 

activity is part of a larger common plan of development or sale that would disturb one acre or more. If 

the NPDES permitting authority waives requirements for storm water discharges associated with small 

construction activity in accordance with §122.26(b)(15)(i), you are not required to develop, implement, 

and/or enforce a program to reduce pollutant discharges from such sites. 

(ii) Your program must include the development and implementation of, at a minimum: 

(A) An ordinance or other regulatory mechanism to require erosion and sediment controls, as well as 

sanctions to ensure compliance, to the extent allowable under State, Tribal, or local law; 

(B) Requirements for construction site operators to implement appropriate erosion and sediment control 

best management practices; 

(C) Requirements for construction site operators to control waste such as discarded building materials, 

concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause 

adverse impacts to water quality; 

(D) Procedures for site plan review which incorporate consideration of potential water quality impacts; 

(E) Procedures for receipt and consideration of information submitted by the public, and 

(F) Procedures for site inspection and enforcement of control measures. 

(iii) Guidance: Examples of sanctions to ensure compliance include non-monetary penalties, fines, 

bonding requirements and/or permit denials for non-compliance. EPA recommends that procedures for 

site plan review include the review of individual pre-construction site plans to ensure consistency with 

local sediment and erosion control requirements. Procedures for site inspections and enforcement of 

control measures could include steps to identify priority sites for inspection and enforcement based on 

the nature of the construction activity, topography, and the characteristics of soils and receiving water 

quality. You are encouraged to provide appropriate educational and training measures for construction 

site operators. You may wish to require a storm water pollution prevention plan for construction sites 

within your jurisdiction that discharge into your system. See §122.44(s) (NPDES permitting authorities' 

option to incorporate qualifying State, Tribal and local erosion and sediment control programs into 

NPDES permits for storm water discharges from construction sites). Also see §122.35(b) (The NPDES 

permitting authority may recognize that another government entity, including the permitting authority, 

may be responsible for implementing one or more of the minimum measures on your behalf.) 

(5) Post-construction storm water management in new development and redevelopment. (i) You must 

develop, implement, and enforce a program to address storm water runoff from new development and 

redevelopment projects that disturb greater than or equal to one acre, including projects less than one 

acre that are part of a larger common plan of development or sale, that discharge into your small MS4. 

Your program must ensure that controls are in place that would prevent or minimize water quality 

impacts. 

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(ii) You must: 

(A) Develop and implement strategies which include a combination of structural and/or non-structural 

best management practices (BMPs) appropriate for your community; 

(B) Use an ordinance or other regulatory mechanism to address post-construction runoff from new 

development and redevelopment projects to the extent allowable under State, Tribal or local law; and 

(C) Ensure adequate long-term operation and maintenance of BMPs. 

(iii) Guidance: If water quality impacts are considered from the beginning stages of a project, new 

development and potentially redevelopment provide more opportunities for water quality protection. EPA 

recommends that the BMPs chosen: be appropriate for the local community; minimize water quality 

impacts; and attempt to maintain pre-development runoff conditions. In choosing appropriate BMPs, 

EPA encourages you to participate in locally-based watershed planning efforts which attempt to involve 

a diverse group of stakeholders including interested citizens. When developing a program that is 

consistent with this measure's intent, EPA recommends that you adopt a planning process that identifies 

the municipality's program goals (e.g., minimize water quality impacts resulting from post-construction 

runoff from new development and redevelopment), implementation strategies (e.g., adopt a combination 

of structural and/or non-structural BMPs), operation and maintenance policies and procedures, and 

enforcement procedures. In developing your program, you should consider assessing existing 

ordinances, policies, programs and studies that address storm water runoff quality. In addition to 

assessing these existing documents and programs, you should provide opportunities to the public to 

participate in the development of the program. Non-structural BMPs are preventative actions that involve 

management and source controls such as: policies and ordinances that provide requirements and 

standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian 

areas, maintain and/or increase open space (including a dedicated funding source for open space 

acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize 

disturbance of soils and vegetation; policies or ordinances that encourage infill development in higher 

density urban areas, and areas with existing infrastructure; education programs for developers and the 

public about project designs that minimize water quality impacts; and measures such as minimization of 

percent impervious area after development and minimization of directly connected impervious areas. 

Structural BMPs include: storage practices such as wet ponds and extended-detention outlet structures; 

filtration practices such as grassed swales, sand filters and filter strips; and infiltration practices such as 

infiltration basins and infiltration trenches. EPA recommends that you ensure the appropriate 

implementation of the structural BMPs by considering some or all of the following: pre-construction 

review of BMP designs; inspections during construction to verify BMPs are built as designed; postconstruction inspection and maintenance of BMPs; and penalty provisions for the noncompliance with 

design, construction or operation and maintenance. Storm water technologies are constantly being 

improved, and EPA recommends that your requirements be responsive to these changes, developments 

or improvements in control technologies. 

(6) Pollution prevention/good housekeeping for municipal operations. (i) You must develop and 

implement an operation and maintenance program that includes a training component and has the 

ultimate goal of preventing or reducing pollutant runoff from municipal operations. Using training 

materials that are available from EPA, your State, Tribe, or other organizations, your program must 

include employee training to prevent and reduce storm water pollution from activities such as park and 

open space maintenance, fleet and building maintenance, new construction and land disturbances, and 

storm water system maintenance. 

(ii) Guidance: EPA recommends that, at a minimum, you consider the following in developing your 

program: maintenance activities, maintenance schedules, and long-term inspection procedures for 

structural and non-structural storm water controls to reduce floatables and other pollutants discharged 

from your separate storm sewers; controls for reducing or eliminating the discharge of pollutants from 

streets, roads, highways, municipal parking lots, maintenance and storage yards, fleet or maintenance 

shops with outdoor storage areas, salt/sand storage locations and snow disposal areas operated by you, 

and waste transfer stations; procedures for properly disposing of waste removed from the separate 

storm sewers and areas listed above (such as dredge spoil, accumulated sediments, floatables, and 

other debris); and ways to ensure that new flood management projects assess the impacts on water 

quality and examine existing projects for incorporating additional water quality protection devices or 

practices. Operation and maintenance should be an integral component of all storm water management 

programs. This measure is intended to improve the efficiency of these programs and require new 

programs where necessary. Properly developed and implemented operation and maintenance programs 

reduce the risk of water quality problems. 

(c) If an existing qualifying local program requires you to implement one or more of the minimum control 

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measures of paragraph (b) of this section, the NPDES permitting authority may include conditions in 

your NPDES permit that direct you to follow that qualifying program's requirements rather than the 

requirements of paragraph (b) of this section. A qualifying local program is a local, State or Tribal 

municipal storm water management program that imposes, at a minimum, the relevant requirements of 

paragraph (b) of this section. 

(d)(1) In your permit application (either a notice of intent for coverage under a general permit or an 

individual permit application), you must identify and submit to your NPDES permitting authority the 

following information: 

(i) The best management practices (BMPs) that you or another entity will implement for each of the 

storm water minimum control measures at paragraphs (b)(1) through (b)(6) of this section; 

(ii) The measurable goals for each of the BMPs including, as appropriate, the months and years in which 

you will undertake required actions, including interim milestones and the frequency of the action; and 

(iii) The person or persons responsible for implementing or coordinating your storm water management 

program. 

(2) If you obtain coverage under a general permit, you are not required to meet any measurable goal(s) 

identified in your notice of intent in order to demonstrate compliance with the minimum control measures 

in paragraphs (b)(3) through (b)(6) of this section unless, prior to submitting your NOI, EPA or your State 

or Tribe has provided or issued a menu of BMPs that addresses each such minimum measure. Even if 

no regulatory authority issues the menu of BMPs, however, you still must comply with other 

requirements of the general permit, including good faith implementation of BMPs designed to comply 

with the minimum measures. 

(3) Guidance: Either EPA or your State or Tribal permitting authority will provide a menu of BMPs. You 

may choose BMPs from the menu or select others that satisfy the minimum control measures. 

(e)(1) You must comply with any more stringent effluent limitations in your permit, including permit 

requirements that modify, or are in addition to, the minimum control measures based on an approved 

total maximum daily load (TMDL) or equivalent analysis. The permitting authority may include such more 

stringent limitations based on a TMDL or equivalent analysis that determines such limitations are 

needed to protect water quality. 

(2) Guidance: EPA strongly recommends that until the evaluation of the storm water program in §122.37, 

no additional requirements beyond the minimum control measures be imposed on regulated small MS4s 

without the agreement of the operator of the affected small MS4, except where an approved TMDL or 

equivalent analysis provides adequate information to develop more specific measures to protect water 

quality. 

(f) You must comply with other applicable NPDES permit requirements, standards and conditions 

established in the individual or general permit, developed consistent with the provisions of §§122.41 

through 122.49, as appropriate. 

(g) Evaluation and assessment —(1) Evaluation. You must evaluate program compliance, the 

appropriateness of your identified best management practices, and progress towards achieving your 

identified measurable goals. 

Note to paragraph (g)(1): The NPDES permitting authority may determine monitoring 

requirements for you in accordance with State/Tribal monitoring plans appropriate to your 

watershed. Participation in a group monitoring program is encouraged.

(2) Recordkeeping. You must keep records required by the NPDES permit for at least 3 years. You must 

submit your records to the NPDES permitting authority only when specifically asked to do so. You must 

make your records, including a description of your storm water management program, available to the 

public at reasonable times during regular business hours (see §122.7 for confidentiality provision). (You 

may assess a reasonable charge for copying. You may require a member of the public to provide 

advance notice.) 

(3) Reporting. Unless you are relying on another entity to satisfy your NPDES permit obligations under 

§122.35(a), you must submit annual reports to the NPDES permitting authority for your first permit term. 

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For subsequent permit terms, you must submit reports in year two and four unless the NPDES 

permitting authority requires more frequent reports. Your report must include: 

(i) The status of compliance with permit conditions, an assessment of the appropriateness of your 

identified best management practices and progress towards achieving your identified measurable goals 

for each of the minimum control measures; 

(ii) Results of information collected and analyzed, including monitoring data, if any, during the reporting 

period; 

(iii) A summary of the storm water activities you plan to undertake during the next reporting cycle; 

(iv) A change in any identified best management practices or measurable goals for any of the minimum 

control measures; and 

(v) Notice that you are relying on another governmental entity to satisfy some of your permit obligations 

(if applicable). 

[64 FR 68843, Dec. 8, 1999] 

§ 122.35 As an operator of a regulated small MS4, may I share the responsibility to 

implement the minimum control measures with other entities? 

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(a) You may rely on another entity to satisfy your NPDES permit obligations to implement a minimum 

control measure if: 

(1) The other entity, in fact, implements the control measure; 

(2) The particular control measure, or component thereof, is at least as stringent as the corresponding 

NPDES permit requirement; and 

(3) The other entity agrees to implement the control measure on your behalf. In the reports you must 

submit under §122.34(g)(3), you must also specify that you rely on another entity to satisfy some of your 

permit obligations. If you are relying on another governmental entity regulated under section 122 to 

satisfy all of your permit obligations, including your obligation to file periodic reports required by §122.34

(g)(3), you must note that fact in your NOI, but you are not required to file the periodic reports. You 

remain responsible for compliance with your permit obligations if the other entity fails to implement the 

control measure (or component thereof). Therefore, EPA encourages you to enter into a legally binding 

agreement with that entity if you want to minimize any uncertainty about compliance with your permit. 

(b) In some cases, the NPDES permitting authority may recognize, either in your individual NPDES 

permit or in an NPDES general permit, that another governmental entity is responsible under an NPDES 

permit for implementing one or more of the minimum control measures for your small MS4 or that the 

permitting authority itself is responsible. Where the permitting authority does so, you are not required to 

include such minimum control measure(s) in your storm water management program. (For example, if a 

State or Tribe is subject to an NPDES permit that requires it to administer a program to control 

construction site runoff at the State or Tribal level and that program satisfies all of the requirements of 

§122.34(b)(4), you could avoid responsibility for the construction measure, but would be responsible for 

the remaining minimum control measures.) Your permit may be reopened and modified to include the 

requirement to implement a minimum control measure if the entity fails to implement it. 

[64 FR 68846, Dec. 8, 1999] 

§ 122.36 As an operator of a regulated small MS4, what happens if I don't comply with 

the application or permit requirements in §§122.33 through 122.35? 

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NPDES permits are federally enforceable. Violators may be subject to the enforcement actions and 

penalties described in Clean Water Act sections 309 (b), (c), and (g) and 505, or under applicable State, 

Tribal, or local law. Compliance with a permit issued pursuant to section 402 of the Clean Water Act is 

deemed compliance, for purposes of sections 309 and 505, with sections 301, 302, 306, 307, and 403, 

except any standard imposed under section 307 for toxic pollutants injurious to human health. If you are 

covered as a co-permittee under an individual permit or under a general permit by means of a joint 

Notice of Intent you remain subject to the enforcement actions and penalties for the failure to comply 

with the terms of the permit in your jurisdiction except as set forth in §122.35(b). 

[64 FR 68847, Dec. 8, 1999] 

§ 122.37 Will the small MS4 storm water program regulations at §§122.32 through 

122.36 and §123.35 of this chapter change in the future? 

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EPA will evaluate the small MS4 regulations at §§122.32 through 122.36 and §123.35 of this chapter 

after December 10, 2012 and make any necessary revisions. (EPA intends to conduct an enhanced 

research effort and compile a comprehensive evaluation of the NPDES MS4 storm water program. EPA 

will re-evaluate the regulations based on data from the NPDES MS4 storm water program, from 

research on receiving water impacts from storm water, and the effectiveness of best management 

practices (BMPs), as well as other relevant information sources.) 

[64 FR 68847, Dec. 8, 1999] 

Subpart C—Permit Conditions 

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§ 122.41 Conditions applicable to all permits (applicable to State programs, see 

§123.25). 

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The following conditions apply to all NPDES permits. Additional conditions applicable to NPDES permits 

are in §122.42. All conditions applicable to NPDES permits shall be incorporated into the permits either 

expressly or by reference. If incorporated by reference, a specific citation to these regulations (or the 

corresponding approved State regulations) must be given in the permit. 

(a) Duty to comply. The permittee must comply with all conditions of this permit. Any permit 

noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action; for 

permit termination, revocation and reissuance, or modification; or denial of a permit renewal application. 

(1) The permittee shall comply with effluent standards or prohibitions established under section 307(a) of 

the Clean Water Act for toxic pollutants and with standards for sewage sludge use or disposal 

established under section 405(d) of the CWA within the time provided in the regulations that establish 

these standards or prohibitions or standards for sewage sludge use or disposal, even if the permit has 

not yet been modified to incorporate the requirement. 

(2) The Clean Water Act provides that any person who violates section 301, 302, 306, 307, 308, 318 or 

405 of the Act, or any permit condition or limitation implementing any such sections in a permit issued 

under section 402, or any requirement imposed in a pretreatment program approved under sections 402

(a)(3) or 402(b)(8) of the Act, is subject to a civil penalty not to exceed $25,000 per day for each 

violation. The Clean Water Act provides that any person who negligently violates sections 301, 302, 306, 

307, 308, 318, or 405 of the Act, or any condition or limitation implementing any of such sections in a 

permit issued under section 402 of the Act, or any requirement imposed in a pretreatment program 

approved under section 402(a)(3) or 402(b)(8) of the Act, is subject to criminal penalties of $2,500 to 

$25,000 per day of violation, or imprisonment of not more than 1 year, or both. In the case of a second 

or subsequent conviction for a negligent violation, a person shall be subject to criminal penalties of not 

more than $50,000 per day of violation, or by imprisonment of not more than 2 years, or both. Any 

person who knowingly violates such sections, or such conditions or limitations is subject to criminal 

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penalties of $5,000 to $50,000 per day of violation, or imprisonment for not more than 3 years, or both. 

In the case of a second or subsequent conviction for a knowing violation, a person shall be subject to 

criminal penalties of not more than $100,000 per day of violation, or imprisonment of not more than 6 

years, or both. Any person who knowingly violates section 301, 302, 303, 306, 307, 308, 318 or 405 of 

the Act, or any permit condition or limitation implementing any of such sections in a permit issued under 

section 402 of the Act, and who knows at that time that he thereby places another person in imminent 

danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than 

$250,000 or imprisonment of not more than 15 years, or both. In the case of a second or subsequent 

conviction for a knowing endangerment violation, a person shall be subject to a fine of not more than 

$500,000 or by imprisonment of not more than 30 years, or both. An organization, as defined in section 

309(c)(3)(B)(iii) of the CWA, shall, upon conviction of violating the imminent danger provision, be subject 

to a fine of not more than $1,000,000 and can be fined up to $2,000,000 for second or subsequent 

convictions. 

(3) Any person may be assessed an administrative penalty by the Administrator for violating section 301, 

302, 306, 307, 308, 318 or 405 of this Act, or any permit condition or limitation implementing any of such 

sections in a permit issued under section 402 of this Act. Administrative penalties for Class I violations 

are not to exceed $10,000 per violation, with the maximum amount of any Class I penalty assessed not 

to exceed $25,000. Penalties for Class II violations are not to exceed $10,000 per day for each day 

during which the violation continues, with the maximum amount of any Class II penalty not to exceed 

$125,000. 

(b) Duty to reapply. If the permittee wishes to continue an activity regulated by this permit after the 

expiration date of this permit, the permittee must apply for and obtain a new permit. 

(c) Need to halt or reduce activity not a defense. It shall not be a defense for a permittee in an 

enforcement action that it would have been necessary to halt or reduce the permitted activity in order to 

maintain compliance with the conditions of this permit. 

(d) Duty to mitigate. The permittee shall take all reasonable steps to minimize or prevent any discharge 

or sludge use or disposal in violation of this permit which has a reasonable likelihood of adversely 

affecting human health or the environment. 

(e) Proper operation and maintenance. The permittee shall at all times properly operate and maintain all 

facilities and systems of treatment and control (and related appurtenances) which are installed or used 

by the permittee to achieve compliance with the conditions of this permit. Proper operation and 

maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. 

This provision requires the operation of back-up or auxiliary facilities or similar systems which are 

installed by a permittee only when the operation is necessary to achieve compliance with the conditions 

of the permit. 

(f) Permit actions. This permit may be modified, revoked and reissued, or terminated for cause. The filing 

of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a 

notification of planned changes or anticipated noncompliance does not stay any permit condition. 

(g) Property rights. This permit does not convey any property rights of any sort, or any exclusive 

privilege. 

(h) Duty to provide information. The permittee shall furnish to the Director, within a reasonable time, any 

information which the Director may request to determine whether cause exists for modifying, revoking 

and reissuing, or terminating this permit or to determine compliance with this permit. The permittee shall 

also furnish to the Director upon request, copies of records required to be kept by this permit. 

(i) Inspection and entry. The permittee shall allow the Director, or an authorized representative (including 

an authorized contractor acting as a representative of the Administrator), upon presentation of 

credentials and other documents as may be required by law, to: 

(1) Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or 

where records must be kept under the conditions of this permit; 

(2) Have access to and copy, at reasonable times, any records that must be kept under the conditions of 

this permit; 

(3) Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), 

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practices, or operations regulated or required under this permit; and 

(4) Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as 

otherwise authorized by the Clean Water Act, any substances or parameters at any location. 

(j) Monitoring and records. (1) Samples and measurements taken for the purpose of monitoring shall be 

representative of the monitored activity. 

(2) Except for records of monitoring information required by this permit related to the permittee's sewage 

sludge use and disposal activities, which shall be retained for a period of at least five years (or longer as 

required by 40 CFR part 503), the permittee shall retain records of all monitoring information, including 

all calibration and maintenance records and all original strip chart recordings for continuous monitoring 

instrumentation, copies of all reports required by this permit, and records of all data used to complete the 

application for this permit, for a period of at least 3 years from the date of the sample, measurement, 

report or application. This period may be extended by request of the Director at any time. 

(3) Records of monitoring information shall include: 

(i) The date, exact place, and time of sampling or measurements; 

(ii) The individual(s) who performed the sampling or measurements; 

(iii) The date(s) analyses were performed; 

(iv) The individual(s) who performed the analyses; 

(v) The analytical techniques or methods used; and 

(vi) The results of such analyses. 

(4) Monitoring must be conducted according to test procedures approved under 40 CFR Part 136 unless 

another method is required under 40 CFR subchapters N or O. 

(5) The Clean Water Act provides that any person who falsifies, tampers with, or knowingly renders 

inaccurate any monitoring device or method required to be maintained under this permit shall, upon 

conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 

years, or both. If a conviction of a person is for a violation committed after a first conviction of such 

person under this paragraph, punishment is a fine of not more than $20,000 per day of violation, or by 

imprisonment of not more than 4 years, or both. 

(k) Signatory requirement. (1) All applications, reports, or information submitted to the Director shall be 

signed and certified. (See §122.22) 

(2) The CWA provides that any person who knowingly makes any false statement, representation, or 

certification in any record or other document submitted or required to be maintained under this permit, 

including monitoring reports or reports of compliance or non-compliance shall, upon conviction, be 

punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 

months per violation, or by both. 

(l) Reporting requirements —(1) Planned changes. The permittee shall give notice to the Director as 

soon as possible of any planned physical alterations or additions to the permitted facility. Notice is 

required only when: 

(i) The alteration or addition to a permitted facility may meet one of the criteria for determining whether a 

facility is a new source in §122.29(b); or 

(ii) The alteration or addition could significantly change the nature or increase the quantity of pollutants 

discharged. This notification applies to pollutants which are subject neither to effluent limitations in the 

permit, nor to notification requirements under §122.42(a)(1). 

(iii) The alteration or addition results in a significant change in the permittee's sludge use or disposal 

practices, and such alteration, addition, or change may justify the application of permit conditions that 

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are different from or absent in the existing permit, including notification of additional use or disposal sites 

not reported during the permit application process or not reported pursuant to an approved land 

application plan; 

(2) Anticipated noncompliance. The permittee shall give advance notice to the Director of any planned 

changes in the permitted facility or activity which may result in noncompliance with permit requirements. 

(3) Transfers. This permit is not transferable to any person except after notice to the Director. The 

Director may require modification or revocation and reissuance of the permit to change the name of the 

permittee and incorporate such other requirements as may be necessary under the Clean Water Act. 

(See §122.61; in some cases, modification or revocation and reissuance is mandatory.) 

(4) Monitoring reports. Monitoring results shall be reported at the intervals specified elsewhere in this 

permit. 

(i) Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or 

specified by the Director for reporting results of monitoring of sludge use or disposal practices. 

(ii) If the permittee monitors any pollutant more frequently than required by the permit using test 

procedures approved under 40 CFR Part 136, or another method required for an industry-specific waste 

stream under 40 CFR subchapters N or O, the results of such monitoring shall be included in the 

calculation and reporting of the data submitted in the DMR or sludge reporting form specified by the 

Director. 

(iii) Calculations for all limitations which require averaging of measurements shall utilize an arithmetic 

mean unless otherwise specified by the Director in the permit. 

(5) Compliance schedules. Reports of compliance or noncompliance with, or any progress reports on, 

interim and final requirements contained in any compliance schedule of this permit shall be submitted no 

later than 14 days following each schedule date. 

(6) Twenty-four hour reporting. (i) The permittee shall report any noncompliance which may endanger 

health or the environment. Any information shall be provided orally within 24 hours from the time the 

permittee becomes aware of the circumstances. A written submission shall also be provided within 5 

days of the time the permittee becomes aware of the circumstances. The written submission shall 

contain a description of the noncompliance and its cause; the period of noncompliance, including exact 

dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to 

continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the 

noncompliance. 

(ii) The following shall be included as information which must be reported within 24 hours under this 

paragraph. 

(A) Any unanticipated bypass which exceeds any effluent limitation in the permit. (See §122.41(g). 

(B) Any upset which exceeds any effluent limitation in the permit. 

(C) Violation of a maximum daily discharge limitation for any of the pollutants listed by the Director in the 

permit to be reported within 24 hours. (See §122.44(g).) 

(iii) The Director may waive the written report on a case-by-case basis for reports under paragraph (l)(6)

(ii) of this section if the oral report has been received within 24 hours. 

(7) Other noncompliance. The permittee shall report all instances of noncompliance not reported under 

paragraphs (l) (4), (5), and (6) of this section, at the time monitoring reports are submitted. The reports 

shall contain the information listed in paragraph (l)(6) of this section. 

(8) Other information. Where the permittee becomes aware that it failed to submit any relevant facts in a 

permit application, or submitted incorrect information in a permit application or in any report to the 

Director, it shall promptly submit such facts or information. 

(m) Bypass —(1) Definitions. (i) Bypass means the intentional diversion of waste streams from any 

portion of a treatment facility. 

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(ii) Severe property damage means substantial physical damage to property, damage to the treatment 

facilities which causes them to become inoperable, or substantial and permanent loss of natural 

resources which can reasonably be expected to occur in the absence of a bypass. Severe property 

damage does not mean economic loss caused by delays in production. 

(2) Bypass not exceeding limitations. The permittee may allow any bypass to occur which does not 

cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure 

efficient operation. These bypasses are not subject to the provisions of paragraphs (m)(3) and (m)(4) of 

this section. 

(3) Notice —(i) Anticipated bypass. If the permittee knows in advance of the need for a bypass, it shall 

submit prior notice, if possible at least ten days before the date of the bypass. 

(ii) Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in 

paragraph (l)(6) of this section (24-hour notice). 

(4) Prohibition of bypass. (i) Bypass is prohibited, and the Director may take enforcement action against 

a permittee for bypass, unless: 

(A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; 

(B) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, 

retention of untreated wastes, or maintenance during normal periods of equipment downtime. This 

condition is not satisfied if adequate back-up equipment should have been installed in the exercise of 

reasonable engineering judgment to prevent a bypass which occurred during normal periods of 

equipment downtime or preventive maintenance; and 

(C) The permittee submitted notices as required under paragraph (m)(3) of this section. 

(ii) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director 

determines that it will meet the three conditions listed above in paragraph (m)(4)(i) of this section. 

(n) Upset —(1) Definition. Upset means an exceptional incident in which there is unintentional and 

temporary noncompliance with technology based permit effluent limitations because of factors beyond 

the reasonable control of the permittee. An upset does not include noncompliance to the extent caused 

by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of 

preventive maintenance, or careless or improper operation. 

(2) Effect of an upset. An upset constitutes an affirmative defense to an action brought for 

noncompliance with such technology based permit effluent limitations if the requirements of paragraph 

(n)(3) of this section are met. No determination made during administrative review of claims that 

noncompliance was caused by upset, and before an action for noncompliance, is final administrative 

action subject to judicial review. 

(3) Conditions necessary for a demonstration of upset. A permittee who wishes to establish the 

affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating 

logs, or other relevant evidence that: 

(i) An upset occurred and that the permittee can identify the cause(s) of the upset; 

(ii) The permitted facility was at the time being properly operated; and 

(iii) The permittee submitted notice of the upset as required in paragraph (1)(6)(ii)(B) of this section (24 

hour notice). 

(iv) The permittee complied with any remedial measures required under paragraph (d) of this section. 

(4) Burden of proof. In any enforcement proceeding the permittee seeking to establish the occurrence of 

an upset has the burden of proof. 

(Clean Water Act (33 U.S.C. 1251 et seq. ), Safe Drinking Water Act (42 U.S.C. 300f et seq. ), Clean Air 

Act (42 U.S.C. 7401 et seq. ), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq. )) 

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[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 49 FR 38049, Sept. 26, 1984; 

50 FR 4514, Jan. 31, 1985; 50 FR 6940, Feb. 19, 1985; 54 FR 255, Jan. 4, 1989; 54 FR 18783, May 2, 

1989; 65 FR 30908, May 15, 2000; 72 FR 11211, Mar. 12, 2007] 

§ 122.42 Additional conditions applicable to specified categories of NPDES permits 

(applicable to State NPDES programs, see §123.25). 

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The following conditions, in addition to those set forth in §122.41, apply to all NPDES permits within the 

categories specified below: 

(a) Existing manufacturing, commercial, mining, and silvicultural dischargers. In addition to the reporting 

requirements under §122.41(1), all existing manufacturing, commercial, mining, and silvicultural 

dischargers must notify the Director as soon as they know or have reason to believe: 

(1) That any activity has occurred or will occur which would result in the discharge, on a routine or 

frequent basis, of any toxic pollutant which is not limited in the permit, if that discharge will exceed the 

highest of the following “notification levels”: 

(i) One hundred micrograms per liter (100 μg/l); 

(ii) Two hundred micrograms per liter (200 μg/l) for acrolein and acrylonitrile; five hundred micrograms 

per liter (500 μg/l) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter (1 

mg/l) for antimony; 

(iii) Five (5) times the maximum concentration value reported for that pollutant in the permit application in 

accordance with §122.21(g)(7); or 

(iv) The level established by the Director in accordance with §122.44(f). 

(2) That any activity has occurred or will occur which would result in any discharge, on a non-routine or 

infrequent basis, of a toxic pollutant which is not limited in the permit, if that discharge will exceed the 

highest of the following “notification levels”: 

(i) Five hundred micrograms per liter (500 μg/l); 

(ii) One milligram per liter (1 mg/l) for antimony; 

(iii) Ten (10) times the maximum concentration value reported for that pollutant in the permit application 

in accordance with §122.21(g)(7). 

(iv) The level established by the Director in accordance with §122.44(f). 

(b) Publicly owned treatment works. All POTWs must provide adequate notice to the Director of the 

following: 

(1) Any new introduction of pollutants into the POTW from an indirect discharger which would be subject 

to section 301 or 306 of CWA if it were directly discharging those pollutants; and 

(2) Any substantial change in the volume or character of pollutants being introduced into that POTW by 

a source introducing pollutants into the POTW at the time of issuance of the permit. 

(3) For purposes of this paragraph, adequate notice shall include information on (i) the quality and 

quantity of effluent introduced into the POTW, and (ii) any anticipated impact of the change on the 

quantity or quality of effluent to be discharged from the POTW. 

(c) Municipal separate storm sewer systems. The operator of a large or medium municipal separate 

storm sewer system or a municipal separate storm sewer that has been designated by the Director 

under §122.26(a)(1)(v) of this part must submit an annual report by the anniversary of the date of the 

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issuance of the permit for such system. The report shall include: 

(1) The status of implementing the components of the storm water management program that are 

established as permit conditions; 

(2) Proposed changes to the storm water management programs that are established as permit 

condition. Such proposed changes shall be consistent with §122.26(d)(2)(iii) of this part; and 

(3) Revisions, if necessary, to the assessment of controls and the fiscal analysis reported in the permit 

application under §122.26(d)(2)(iv) and (d)(2)(v) of this part; 

(4) A summary of data, including monitoring data, that is accumulated throughout the reporting year; 

(5) Annual expenditures and budget for year following each annual report; 

(6) A summary describing the number and nature of enforcement actions, inspections, and public 

education programs; 

(7) Identification of water quality improvements or degradation; 

(d) Storm water discharges. The initial permits for discharges composed entirely of storm water issued 

pursuant to §122.26(e)(7) of this part shall require compliance with the conditions of the permit as 

expeditiously as practicable, but in no event later than three years after the date of issuance of the 

permit. 

(e) Concentrated animal feeding operations (CAFOs). Any permit issued to a CAFO must include the 

requirements in paragraphs (e)(1) through (e)(6) of this section. 

(1) Requirement to implement a nutrient management plan. Any permit issued to a CAFO must include a 

requirement to implement a nutrient management plan that, at a minimum, contains best management 

practices necessary to meet the requirements of this paragraph and applicable effluent limitations and 

standards, including those specified in 40 CFR part 412. The nutrient management plan must, to the 

extent applicable: 

(i) Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure 

proper operation and maintenance of the storage facilities; 

(ii) Ensure proper management of mortalities ( i.e. , dead animals) to ensure that they are not disposed 

of in a liquid manure, storm water, or process wastewater storage or treatment system that is not 

specifically designed to treat animal mortalities; 

(iii) Ensure that clean water is diverted, as appropriate, from the production area; 

(iv) Prevent direct contact of confined animals with waters of the United States; 

(v) Ensure that chemicals and other contaminants handled on-site are not disposed of in any manure, 

litter, process wastewater, or storm water storage or treatment system unless specifically designed to 

treat such chemicals and other contaminants; 

(vi) Identify appropriate site specific conservation practices to be implemented, including as appropriate 

buffers or equivalent practices, to control runoff of pollutants to waters of the United States; 

(vii) Identify protocols for appropriate testing of manure, litter, process wastewater, and soil; 

(viii) Establish protocols to land apply manure, litter or process wastewater in accordance with site 

specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in 

the manure, litter or process wastewater; and 

(ix) Identify specific records that will be maintained to document the implementation and management of 

the minimum elements described in paragraphs (e)(1)(i) through (e)(1)(viii) of this section. 

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(2) Recordkeeping requirements. (i) The permittee must create, maintain for five years, and make 

available to the Director, upon request, the following records: 

(A) All applicable records identified pursuant paragraph (e)(1)(ix) of this section; 

(B) In addition, all CAFOs subject to 40 CFR part 412 must comply with record keeping requirements as 

specified in §412.37(b) and (c) and §412.47(b) and (c). 

(ii) A copy of the CAFO's site-specific nutrient management plan must be maintained on site and made 

available to the Director upon request. 

(3) Requirements relating to transfer of manure or process wastewater to other persons. Prior to 

transferring manure, litter or process wastewater to other persons, Large CAFOs must provide the 

recipient of the manure, litter or process wastewater with the most current nutrient analysis. The analysis 

provided must be consistent with the requirements of 40 CFR part 412. Large CAFOs must retain for five 

years records of the date, recipient name and address, and approximate amount of manure, litter or 

process wastewater transferred to another person. 

(4) Annual reporting requirements for CAFOs. The permittee must submit an annual report to the 

Director. The annual report must include: 

(i) The number and type of animals, whether in open confinement or housed under roof (beef cattle, 

broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy 

cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other); 

(ii) Estimated amount of total manure, litter and process wastewater generated by the CAFO in the 

previous 12 months (tons/gallons); 

(iii) Estimated amount of total manure, litter and process wastewater transferred to other person by the 

CAFO in the previous 12 months (tons/gallons); 

(iv) Total number of acres for land application covered by the nutrient management plan developed in 

accordance with paragraph (e)(1) of this section; 

(v) Total number of acres under control of the CAFO that were used for land application of manure, litter 

and process wastewater in the previous 12 months; 

(vi) Summary of all manure, litter and process wastewater discharges from the production area that have 

occurred in the previous 12 months, including date, time, and approximate volume; and 

(vii) A statement indicating whether the current version of the CAFO's nutrient management plan was 

developed or approved by a certified nutrient management planner; and 

(viii) The actual crop(s) planted and actual yield(s) for each field, the actual nitrogen and phosphorus 

content of the manure, litter, and process wastewater, the results of calculations conducted in 

accordance with paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of this section, and the amount of manure, litter, 

and process wastewater applied to each field during the previous 12 months; and, for any CAFO that 

implements a nutrient management plan that addresses rates of application in accordance with 

paragraph (e)(5)(ii) of this section, the results of any soil testing for nitrogen and phosphorus taken 

during the preceding 12 months, the data used in calculations conducted in accordance with paragraph 

(e)(5)(ii)(D) of this section, and the amount of any supplemental fertilizer applied during the previous 12 

months. 

(5) Terms of the nutrient management plan. Any permit issued to a CAFO must require compliance with 

the terms of the CAFO's site-specific nutrient management plan. The terms of the nutrient management 

plan are the information, protocols, best management practices, and other conditions in the nutrient 

management plan determined by the Director to be necessary to meet the requirements of paragraph (e)

(1) of this section. The terms of the nutrient management plan, with respect to protocols for land 

application of manure, litter, or process wastewater required by paragraph (e)(1)(viii) of this section and, 

as applicable, 40 CFR 412.4(c), must include the fields available for land application; field-specific rates 

of application properly developed, as specified in paragraphs (e)(5)(i) through (ii) of this section, to 

ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater; 

and any timing limitations identified in the nutrient management plan concerning land application on the 

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fields available for land application. The terms must address rates of application using one of the 

following two approaches, unless the Director specifies that only one of these approaches may be used: 

(i) Linear approach. An approach that expresses rates of application as pounds of nitrogen and 

phosphorus, according to the following specifications: 

(A) The terms include maximum application rates from manure, litter, and process wastewater for each 

year of permit coverage, for each crop identified in the nutrient management plan, in chemical forms 

determined to be acceptable to the Director, in pounds per acre, per year, for each field to be used for 

land application, and certain factors necessary to determine such rates. At a minimum, the factors that 

are terms must include: The outcome of the field-specific assessment of the potential for nitrogen and 

phosphorus transport from each field; the crops to be planted in each field or any other uses of a field 

such as pasture or fallow fields; the realistic yield goal for each crop or use identified for each field; the 

nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use 

identified for each field; credits for all nitrogen in the field that will be plant available; consideration of 

multi-year phosphorus application; and accounting for all other additions of plant available nitrogen and 

phosphorus to the field. In addition, the terms include the form and source of manure, litter, and process 

wastewater to be land-applied; the timing and method of land application; and the methodology by which 

the nutrient management plan accounts for the amount of nitrogen and phosphorus in the manure, litter, 

and process wastewater to be applied. 

(B) Large CAFOs that use this approach must calculate the maximum amount of manure, litter, and 

process wastewater to be land applied at least once each year using the results of the most recent 

representative manure, litter, and process wastewater tests for nitrogen and phosphorus taken within 12 

months of the date of land application; or 

(ii) Narrative rate approach . An approach that expresses rates of application as a narrative rate of 

application that results in the amount, in tons or gallons, of manure, litter, and process wastewater to be 

land applied, according to the following specifications: 

(A) The terms include maximum amounts of nitrogen and phosphorus derived from all sources of 

nutrients, for each crop identified in the nutrient management plan, in chemical forms determined to be 

acceptable to the Director, in pounds per acre, for each field, and certain factors necessary to determine 

such amounts. At a minimum, the factors that are terms must include: the outcome of the field-specific 

assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be 

planted in each field or any other uses such as pasture or fallow fields (including alternative crops 

identified in accordance with paragraph (e)(5)(ii)(B) of this section); the realistic yield goal for each crop 

or use identified for each field; and the nitrogen and phosphorus recommendations from sources 

specified by the Director for each crop or use identified for each field. In addition, the terms include the 

methodology by which the nutrient management plan accounts for the following factors when calculating 

the amounts of manure, litter, and process wastewater to be land applied: Results of soil tests 

conducted in accordance with protocols identified in the nutrient management plan, as required by 

paragraph (e)(1)(vii) of this section; credits for all nitrogen in the field that will be plant available; the 

amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied; 

consideration of multi-year phosphorus application; accounting for all other additions of plant available 

nitrogen and phosphorus to the field; the form and source of manure, litter, and process wastewater; the 

timing and method of land application; and volatilization of nitrogen and mineralization of organic 

nitrogen. 

(B) The terms of the nutrient management plan include alternative crops identified in the CAFO's nutrient 

management plan that are not in the planned crop rotation. Where a CAFO includes alternative crops in 

its nutrient management plan, the crops must be listed by field, in addition to the crops identified in the 

planned crop rotation for that field, and the nutrient management plan must include realistic crop yield 

goals and the nitrogen and phosphorus recommendations from sources specified by the Director for 

each crop. Maximum amounts of nitrogen and phosphorus from all sources of nutrients and the amounts 

of manure, litter, and process wastewater to be applied must be determined in accordance with the 

methodology described in paragraph (e)(5)(ii)(A) of this section. 

(C) For CAFOs using this approach, the following projections must be included in the nutrient 

management plan submitted to the Director, but are not terms of the nutrient management plan: The 

CAFO's planned crop rotations for each field for the period of permit coverage; the projected amount of 

manure, litter, or process wastewater to be applied; projected credits for all nitrogen in the field that will 

be plant available; consideration of multi-year phosphorus application; accounting for all other additions 

of plant available nitrogen and phosphorus to the field; and the predicted form, source, and method of 

application of manure, litter, and process wastewater for each crop. Timing of application for each field, 

insofar as it concerns the calculation of rates of application, is not a term of the nutrient management 

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plan. 

(D) CAFOs that use this approach must calculate maximum amounts of manure, litter, and process 

wastewater to be land applied at least once each year using the methodology required in paragraph (e)

(5)(ii)(A) of this section before land applying manure, litter, and process wastewater and must rely on the 

following data: 

( 1 ) A field-specific determination of soil levels of nitrogen and phosphorus, including, for nitrogen, a 

concurrent determination of nitrogen that will be plant available consistent with the methodology required 

by paragraph (e)(5)(ii)(A) of this section, and for phosphorus, the results of the most recent soil test 

conducted in accordance with soil testing requirements approved by the Director; and 

( 2 ) The results of most recent representative manure, litter, and process wastewater tests for nitrogen 

and phosphorus taken within 12 months of the date of land application, in order to determine the amount 

of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied. 

(6) Changes to a nutrient management plan. Any permit issued to a CAFO must require the following 

procedures to apply when a CAFO owner or operator makes changes to the CAFO's nutrient 

management plan previously submitted to the Director: 

(i) The CAFO owner or operator must provide the Director with the most current version of the CAFO's 

nutrient management plan and identify changes from the previous version, except that the results of 

calculations made in accordance with the requirements of paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of this 

section are not subject to the requirements of paragraph (e)(6) of this section. 

(ii) The Director must review the revised nutrient management plan to ensure that it meets the 

requirements of this section and applicable effluent limitations and standards, including those specified 

in 40 CFR part 412, and must determine whether the changes to the nutrient management plan 

necessitate revision to the terms of the nutrient management plan incorporated into the permit issued to 

the CAFO. If revision to the terms of the nutrient management plan is not necessary, the Director must 

notify the CAFO owner or operator and upon such notification the CAFO may implement the revised 

nutrient management plan. If revision to the terms of the nutrient management plan is necessary, the 

Director must determine whether such changes are substantial changes as described in paragraph (e)

(6)(iii) of this section. 

(A) If the Director determines that the changes to the terms of the nutrient management plan are not 

substantial, the Director must make the revised nutrient management plan publicly available and include 

it in the permit record, revise the terms of the nutrient management plan incorporated into the permit, 

and notify the owner or operator and inform the public of any changes to the terms of the nutrient 

management plan that are incorporated into the permit. 

(B) If the Director determines that the changes to the terms of the nutrient management plan are 

substantial, the Director must notify the public and make the proposed changes and the information 

submitted by the CAFO owner or operator available for public review and comment. The process for 

public comments, hearing requests, and the hearing process if a hearing is held must follow the 

procedures applicable to draft permits set forth in 40 CFR 124.11 through 124.13. The Director may 

establish, either by regulation or in the CAFO's permit, an appropriate period of time for the public to 

comment and request a hearing on the proposed changes that differs from the time period specified in 

40 CFR 124.10. The Director must respond to all significant comments received during the comment 

period as provided in 40 CFR 124.17, and require the CAFO owner or operator to further revise the 

nutrient management plan if necessary, in order to approve the revision to the terms of the nutrient 

management plan incorporated into the CAFO's permit. Once the Director incorporates the revised 

terms of the nutrient management plan into the permit, the Director must notify the owner or operator 

and inform the public of the final decision concerning revisions to the terms and conditions of the permit. 

(iii) Substantial changes to the terms of a nutrient management plan incorporated as terms and 

conditions of a permit include, but are not limited to: 

(A) Addition of new land application areas not previously included in the CAFO's nutrient management 

plan. Except that if the land application area that is being added to the nutrient management plan is 

covered by terms of a nutrient management plan incorporated into an existing NPDES permit in 

accordance with the requirements of paragraph (e)(5) of this section, and the CAFO owner or operator 

applies manure, litter, or process wastewater on the newly added land application area in accordance 

with the existing field-specific permit terms applicable to the newly added land application area, such 

addition of new land would be a change to the new CAFO owner or operator's nutrient management 

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plan but not a substantial change for purposes of this section; 

(B) Any changes to the field-specific maximum annual rates for land application, as set forth in 

paragraphs (e)(5)(i) of this section, and to the maximum amounts of nitrogen and phosphorus derived 

from all sources for each crop, as set forth in paragraph (e)(5)(ii) of this section; 

(C) Addition of any crop or other uses not included in the terms of the CAFO's nutrient management plan 

and corresponding field-specific rates of application expressed in accordance with paragraph (e)(5) of 

this section; and 

(D) Changes to site-specific components of the CAFO's nutrient management plan, where such changes 

are likely to increase the risk of nitrogen and phosphorus transport to waters of the U.S. 

(iv) For EPA-issued permits only . Upon incorporation of the revised terms of the nutrient management 

plan into the permit, 40 CFR 124.19 specifies procedures for appeal of the permit decision. In addition to 

the procedures specified at 40 CFR 124.19, a person must have submitted comments or participated in 

the public hearing in order to appeal the permit decision. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049, Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 

55 FR 48073, Nov. 16, 1990; 57 FR 60448, Dec. 18, 1992; 68 FR 7268, Feb. 12, 2003; 71 FR 6984, 

Feb. 10, 2006; 72 FR 40250, July 24, 2007; 73 FR 70483, Nov. 20, 2008] 

§ 122.43 Establishing permit conditions (applicable to State programs, see §123.25). 

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(a) In addition to conditions required in all permits (§§122.41 and 122.42), the Director shall establish 

conditions, as required on a case-by-case basis, to provide for and assure compliance with all applicable 

requirements of CWA and regulations. These shall include conditions under §§122.46 (duration of 

permits), 122.47(a) (schedules of compliance), 122.48 (monitoring), and for EPA permits only 122.47(b) 

(alternates schedule of compliance) and 122.49 (considerations under Federal law). 

(b)(1) For a State issued permit, an applicable requirement is a State statutory or regulatory requirement 

which takes effect prior to final administrative disposition of a permit. For a permit issued by EPA, an 

applicable requirement is a statutory or regulatory requirement (including any interim final regulation) 

which takes effect prior to the issuance of the permit. Section 124.14 (reopening of comment period) 

provides a means for reopening EPA permit proceedings at the discretion of the Director where new 

requirements become effective during the permitting process and are of sufficient magnitude to make 

additional proceedings desirable. For State and EPA administered programs, an applicable requirement 

is also any requirement which takes effect prior to the modification or revocation and reissuance of a 

permit, to the extent allowed in §122.62. 

(2) New or reissued permits, and to the extent allowed under §122.62 modified or revoked and reissued 

permits, shall incorporate each of the applicable requirements referenced in §§122.44 and 122.45. 

(c) Incorporation. All permit conditions shall be incorporated either expressly or by reference. If 

incorporated by reference, a specific citation to the applicable regulations or requirements must be given 

in the permit. 

[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30908, May 15, 2000] 

§ 122.44 Establishing limitations, standards, and other permit conditions (applicable 

to State NPDES programs, see §123.25). 

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In addition to the conditions established under §122.43(a), each NPDES permit shall include conditions 

meeting the following requirements when applicable. 

(a)(1) Technology-based effluent limitations and standards based on: effluent limitations and standards 

promulgated under section 301 of the CWA, or new source performance standards promulgated under 

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section 306 of CWA, on case-by-case effluent limitations determined under section 402(a)(1) of CWA, or 

a combination of the three, in accordance with §125.3 of this chapter. For new sources or new 

dischargers, these technology based limitations and standards are subject to the provisions of §122.29

(d) (protection period). 

(2) Monitoring waivers for certain guideline-listed pollutants. (i) The Director may authorize a discharger 

subject to technology-based effluent limitations guidelines and standards in an NPDES permit to forego 

sampling of a pollutant found at 40 CFR Subchapter N of this chapter if the discharger has demonstrated 

through sampling and other technical factors that the pollutant is not present in the discharge or is 

present only at background levels from intake water and without any increase in the pollutant due to 

activities of the discharger. 

(ii) This waiver is good only for the term of the permit and is not available during the term of the first 

permit issued to a discharger. 

(iii) Any request for this waiver must be submitted when applying for a reissued permit or modification of 

a reissued permit. The request must demonstrate through sampling or other technical information, 

including information generated during an earlier permit term that the pollutant is not present in the 

discharge or is present only at background levels from intake water and without any increase in the 

pollutant due to activities of the discharger. 

(iv) Any grant of the monitoring waiver must be included in the permit as an express permit condition and 

the reasons supporting the grant must be documented in the permit's fact sheet or statement of basis. 

(v) This provision does not supersede certification processes and requirements already established in 

existing effluent limitations guidelines and standards. 

(b)(1) Other effluent limitations and standards under sections 301, 302, 303, 307, 318 and 405 of CWA. 

If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in 

such effluent standard or prohibition) is promulgated under section 307(a) of CWA for a toxic pollutant 

and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the 

Director shall institute proceedings under these regulations to modify or revoke and reissue the permit to 

conform to the toxic effluent standard or prohibition. See also §122.41(a). 

(2) Standards for sewage sludge use or disposal under section 405(d) of the CWA unless those 

standards have been included in a permit issued under the appropriate provisions of subtitle C of the 

Solid Waste Disposal Act, Part C of Safe Drinking Water Act, the Marine Protection, Research, and 

Sanctuaries Act of 1972, or the Clean Air Act, or under State permit programs approved by the 

Administrator. When there are no applicable standards for sewage sludge use or disposal, the permit 

may include requirements developed on a case-by-case basis to protect public health and the 

environment from any adverse effects which may occur from toxic pollutants in sewage sludge. If any 

applicable standard for sewage sludge use or disposal is promulgated under section 405(d) of the CWA 

and that standard is more stringent than any limitation on the pollutant or practice in the permit, the 

Director may initiate proceedings under these regulations to modify or revoke and reissue the permit to 

conform to the standard for sewage sludge use or disposal. 

(3) Requirements applicable to cooling water intake structures under section 316(b) of the CWA, in 

accordance with part 125, subparts I, J, and N of this chapter. 

(c) Reopener clause: For any permit issued to a treatment works treating domestic sewage (including 

“sludge-only facilities”), the Director shall include a reopener clause to incorporate any applicable 

standard for sewage sludge use or disposal promulgated under section 405(d) of the CWA. The Director 

may promptly modify or revoke and reissue any permit containing the reopener clause required by this 

paragraph if the standard for sewage sludge use or disposal is more stringent than any requirements for 

sludge use or disposal in the permit, or controls a pollutant or practice not limited in the permit. 

(d) Water quality standards and State requirements: any requirements in addition to or more stringent 

than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318 

and 405 of CWA necessary to: 

(1) Achieve water quality standards established under section 303 of the CWA, including State narrative 

criteria for water quality. 

(i) Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, 

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or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, 

have the reasonable potential to cause, or contribute to an excursion above any State water quality 

standard, including State narrative criteria for water quality. 

(ii) When determining whether a discharge causes, has the reasonable potential to cause, or contributes 

to an in-stream excursion above a narrative or numeric criteria within a State water quality standard, the 

permitting authority shall use procedures which account for existing controls on point and nonpoint 

sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of 

the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the 

dilution of the effluent in the receiving water. 

(iii) When the permitting authority determines, using the procedures in paragraph (d)(1)(ii) of this section, 

that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion 

above the allowable ambient concentration of a State numeric criteria within a State water quality 

standard for an individual pollutant, the permit must contain effluent limits for that pollutant. 

(iv) When the permitting authority determines, using the procedures in paragraph (d)(1)(ii) of this section, 

that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion 

above the numeric criterion for whole effluent toxicity, the permit must contain effluent limits for whole 

effluent toxicity. 

(v) Except as provided in this subparagraph, when the permitting authority determines, using the 

procedures in paragraph (d)(1)(ii) of this section, toxicity testing data, or other information, that a 

discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above 

a narrative criterion within an applicable State water quality standard, the permit must contain effluent 

limits for whole effluent toxicity. Limits on whole effluent toxicity are not necessary where the permitting 

authority demonstrates in the fact sheet or statement of basis of the NPDES permit, using the 

procedures in paragraph (d)(1)(ii) of this section, that chemical-specific limits for the effluent are 

sufficient to attain and maintain applicable numeric and narrative State water quality standards. 

(vi) Where a State has not established a water quality criterion for a specific chemical pollutant that is 

present in an effluent at a concentration that causes, has the reasonable potential to cause, or 

contributes to an excursion above a narrative criterion within an applicable State water quality standard, 

the permitting authority must establish effluent limits using one or more of the following options: 

(A) Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the 

permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and 

will fully protect the designated use. Such a criterion may be derived using a proposed State criterion, or 

an explicit State policy or regulation interpreting its narrative water quality criterion, supplemented with 

other relevant information which may include: EPA's Water Quality Standards Handbook, October 1983, 

risk assessment data, exposure data, information about the pollutant from the Food and Drug 

Administration, and current EPA criteria documents; or 

(B) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under 

section 304(a) of the CWA, supplemented where necessary by other relevant information; or 

(C) Establish effluent limitations on an indicator parameter for the pollutant of concern, provided: 

( 1 ) The permit identifies which pollutants are intended to be controlled by the use of the effluent 

limitation; 

( 2 ) The fact sheet required by §124.56 sets forth the basis for the limit, including a finding that 

compliance with the effluent limit on the indicator parameter will result in controls on the pollutant of 

concern which are sufficient to attain and maintain applicable water quality standards; 

( 3 ) The permit requires all effluent and ambient monitoring necessary to show that during the term of 

the permit the limit on the indicator parameter continues to attain and maintain applicable water quality 

standards; and 

( 4 ) The permit contains a reopener clause allowing the permitting authority to modify or revoke and 

reissue the permit if the limits on the indicator parameter no longer attain and maintain applicable water 

quality standards. 

(vii) When developing water quality-based effluent limits under this paragraph the permitting authority 

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shall ensure that: 

(A) The level of water quality to be achieved by limits on point sources established under this paragraph 

is derived from, and complies with all applicable water quality standards; and 

(B) Effluent limits developed to protect a narrative water quality criterion, a numeric water quality 

criterion, or both, are consistent with the assumptions and requirements of any available wasteload 

allocation for the discharge prepared by the State and approved by EPA pursuant to 40 CFR 130.7. 

(2) Attain or maintain a specified water quality through water quality related effluent limits established 

under section 302 of CWA; 

(3) Conform to the conditions to a State certification under section 401 of the CWA that meets the 

requirements of §124.53 when EPA is the permitting authority. If a State certification is stayed by a court 

of competent jurisdiction or an appropriate State board or agency, EPA shall notify the State that the 

Agency will deem certification waived unless a finally effective State certification is received within sixty 

days from the date of the notice. If the State does not forward a finally effective certification within the 

sixty day period, EPA shall include conditions in the permit that may be necessary to meet EPA's 

obligation under section 301(b)(1)(C) of the CWA; 

(4) Conform to applicable water quality requirements under section 401(a)(2) of CWA when the 

discharge affects a State other than the certifying State; 

(5) Incorporate any more stringent limitations, treatment standards, or schedule of compliance 

requirements established under Federal or State law or regulations in accordance with section 301(b)(1)

(C) of CWA; 

(6) Ensure consistency with the requirements of a Water Quality Management plan approved by EPA 

under section 208(b) of CWA; 

(7) Incorporate section 403(c) criteria under part 125, subpart M, for ocean discharges; 

(8) Incorporate alternative effluent limitations or standards where warranted by “fundamentally different 

factors,” under 40 CFR part 125, subpart D; 

(9) Incorporate any other appropriate requirements, conditions, or limitations (other than effluent 

limitations) into a new source permit to the extent allowed by the National Environmental Policy Act, 42 

U.S.C. 4321 et seq. and section 511 of the CWA, when EPA is the permit issuing authority. (See 

§122.29(c)). 

(e) Technology-based controls for toxic pollutants. Limitations established under paragraphs (a), (b), or 

(d) of this section, to control pollutants meeting the criteria listed in paragraph (e)(1) of this section. 

Limitations will be established in accordance with paragraph (e)(2) of this section. An explanation of the 

development of these limitations shall be included in the fact sheet under §124.56(b)(1)(i). 

(1) Limitations must control all toxic pollutants which the Director determines (based on information 

reported in a permit application under §122.21(g)(7) or in a notification under §122.42(a)(1) or on other 

information) are or may be discharged at a level greater than the level which can be achieved by the 

technology-based treatment requirements appropriate to the permittee under §125.3(c) of this chapter; 

or 

(2) The requirement that the limitations control the pollutants meeting the criteria of paragraph (e)(1) of 

this section will be satisfied by: 

(i) Limitations on those pollutants; or 

(ii) Limitations on other pollutants which, in the judgment of the Director, will provide treatment of the 

pollutants under paragraph (e)(1) of this section to the levels required by §125.3(c). 

(f) Notification level. A “notification level” which exceeds the notification level of §122.42(a)(1)(i), (ii) or 

(iii), upon a petition from the permittee or on the Director's initiative. This new notification level may not 

exceed the level which can be achieved by the technology-based treatment requirements appropriate to 

the permittee under §125.3(c) 

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(g) Twenty-four hour reporting. Pollutants for which the permittee must report violations of maximum 

daily discharge limitations under §122.41(1)(6)(ii)(C) (24-hour reporting) shall be listed in the permit. This 

list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified as the 

method to control a toxic pollutant or hazardous substance. 

(h) Durations for permits, as set forth in §122.46. 

(i) Monitoring requirements. In addition to §122.48, the following monitoring requirements: 

(1) To assure compliance with permit limitations, requirements to monitor: 

(i) The mass (or other measurement specified in the permit) for each pollutant limited in the permit; 

(ii) The volume of effluent discharged from each outfall; 

(iii) Other measurements as appropriate including pollutants in internal waste streams under §122.45(i); 

pollutants in intake water for net limitations under §122.45(f); frequency, rate of discharge, etc., for 

noncontinuous discharges under §122.45(e); pollutants subject to notification requirements under 

§122.42(a); and pollutants in sewage sludge or other monitoring as specified in 40 CFR part 503; or as 

determined to be necessary on a case-by-case basis pursuant to section 405(d)(4) of the CWA. 

(iv) According to test procedures approved under 40 CFR Part 136 for the analyses of pollutants or 

another method is required under 40 CFR subchapters N or O. In the case of pollutants for which there 

are no approved methods under 40 CFR Part 136 or otherwise required under 40 CFR subchapters N or 

O, monitoring must be conducted according to a test procedure specified in the permit for such 

pollutants. 

(2) Except as provided in paragraphs (i)(4) and (i)(5) of this section, requirements to report monitoring 

results shall be established on a case-by-case basis with a frequency dependent on the nature and 

effect of the discharge, but in no case less than once a year. For sewage sludge use or disposal 

practices, requirements to monitor and report results shall be established on a case-by-case basis with a 

frequency dependent on the nature and effect of the sewage sludge use or disposal practice; minimally 

this shall be as specified in 40 CFR part 503 (where applicable), but in no case less than once a year. 

(3) Requirements to report monitoring results for storm water discharges associated with industrial 

activity which are subject to an effluent limitation guideline shall be established on a case-by-case basis 

with a frequency dependent on the nature and effect of the discharge, but in no case less than once a 

year. 

(4) Requirements to report monitoring results for storm water discharges associated with industrial 

activity (other than those addressed in paragraph (i)(3) of this section) shall be established on a case-bycase basis with a frequency dependent on the nature and effect of the discharge. At a minimum, a 

permit for such a discharge must require: 

(i) The discharger to conduct an annual inspection of the facility site to identify areas contributing to a 

storm water discharge associated with industrial activity and evaluate whether measures to reduce 

pollutant loadings identified in a storm water pollution prevention plan are adequate and properly 

implemented in accordance with the terms of the permit or whether additional control measures are 

needed; 

(ii) The discharger to maintain for a period of three years a record summarizing the results of the 

inspection and a certification that the facility is in compliance with the plan and the permit, and identifying 

any incidents of non-compliance; 

(iii) Such report and certification be signed in accordance with §122.22; and 

(iv) Permits for storm water discharges associated with industrial activity from inactive mining operations 

may, where annual inspections are impracticable, require certification once every three years by a 

Registered Professional Engineer that the facility is in compliance with the permit, or alternative 

requirements. 

(5) Permits which do not require the submittal of monitoring result reports at least annually shall require 

that the permittee report all instances of noncompliance not reported under §122.41(l) (1), (4), (5), and 

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(6) at least annually. 

(j) Pretreatment program for POTWs. Requirements for POTWs to: 

(1) Identify, in terms of character and volume of pollutants, any Significant Industrial Users discharging 

into the POTW subject to Pretreatment Standards under section 307(b) of CWA and 40 CFR part 403. 

(2)(i) Submit a local program when required by and in accordance with 40 CFR part 403 to assure 

compliance with pretreatment standards to the extent applicable under section 307(b). The local 

program shall be incorporated into the permit as described in 40 CFR part 403. The program must 

require all indirect dischargers to the POTW to comply with the reporting requirements of 40 CFR part 

403. 

(ii) Provide a written technical evaluation of the need to revise local limits under 40 CFR 403.5(c)(1), 

following permit issuance or reissuance. 

(3) For POTWs which are “sludge-only facilities,” a requirement to develop a pretreatment program 

under 40 CFR part 403 when the Director determines that a pretreatment program is necessary to 

assure compliance with Section 405(d) of the CWA. 

(k) Best management practices (BMPs) to control or abate the discharge of pollutants when: 

(1) Authorized under section 304(e) of the CWA for the control of toxic pollutants and hazardous 

substances from ancillary industrial activities; 

(2) Authorized under section 402(p) of the CWA for the control of storm water discharges; 

(3) Numeric effluent limitations are infeasible; or 

(4) The practices are reasonably necessary to achieve effluent limitations and standards or to carry out 

the purposes and intent of the CWA. 

Note to paragraph (k)(4): Additional technical information on BMPs and the elements of BMPs 

is contained in the following documents: Guidance Manual for Developing Best Management 

Practices (BMPs), October 1993, EPA No. 833/B–93–004, NTIS No. PB 94–178324, ERIC 

No. W498); Storm Water Management for Construction Activities: Developing Pollution 

Prevention Plans and Best Management Practices, September 1992, EPA No. 832/R–92–

005, NTIS No. PB 92–235951, ERIC No. N482); Storm Water Management for Construction 

Activities, Developing Pollution Prevention Plans and Best Management Practices: Summary 

Guidance, EPA No. 833/R–92–001, NTIS No. PB 93–223550; ERIC No. W139; Storm Water 

Management for Industrial Activities, Developing Pollution Prevention Plans and Best 

Management Practices, September 1992; EPA 832/R–92–006, NTIS No. PB 92–235969, 

ERIC No. N477; Storm Water Management for Industrial Activities, Developing Pollution 

Prevention Plans and Best Management Practices: Summary Guidance, EPA 833/R–92–002, 

NTIS No. PB 94–133782; ERIC No. W492. Copies of those documents (or directions on how 

to obtain them) can be obtained by contacting either the Office of Water Resource Center 

(using the EPA document number as a reference) at (202) 260–7786; or the Educational 

Resources Information Center (ERIC) (using the ERIC number as a reference) at (800) 276–

0462. Updates of these documents or additional BMP documents may also be available. A list 

of EPA BMP guidance documents is available on the OWM Home Page at 

http://www.epa.gov/owm. In addition, States may have BMP guidance documents.

These EPA guidance documents are listed here only for informational purposes; they are not binding 

and EPA does not intend that these guidance documents have any mandatory, regulatory effect by 

virtue of their listing in this note. 

(l) Reissued permits. (1) Except as provided in paragraph (l)(2) of this section when a permit is renewed 

or reissued, interim effluent limitations, standards or conditions must be at least as stringent as the final 

effluent limitations, standards, or conditions in the previous permit (unless the circumstances on which 

the previous permit was based have materially and substantially changed since the time the permit was 

issued and would constitute cause for permit modification or revocation and reissuance under §122.62.) 

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(2) In the case of effluent limitations established on the basis of Section 402(a)(1)(B) of the CWA, a 

permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under 

section 304(b) 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. 

(i) Exceptions—A permit with respect to which paragraph (l)(2) of this section 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)( 1 ) 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 

( 2 ) The Administrator determines that technical mistakes or mistaken interpretations of law were made 

in issuing the permit under section 402(a)(1)(b); 

(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 301(c), 301(g), 301(h), 301(i), 301

(k), 301(n), or 316(a); 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). 

(ii) Limitations. In no event may a permit with respect to which paragraph (l)(2) of this section 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, issued, 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 303 applicable to such waters. 

(m) Privately owned treatment works. For a privately owned treatment works, any conditions expressly 

applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the 

treatment works to ensure compliance with applicable requirements under this part. Alternatively, the 

Director may issue separate permits to the treatment works and to its users, or may require a separate 

permit application from any user. The Director's decision to issue a permit with no conditions applicable 

to any user, to impose conditions on one or more users, to issue separate permits, or to require separate 

applications, and the basis for that decision, shall be stated in the fact sheet for the draft permit for the 

treatment works. 

(n) Grants. Any conditions imposed in grants made by the Administrator to POTWs under sections 201 

and 204 of CWA which are reasonably necessary for the achievement of effluent limitations under 

section 301 of CWA. 

(o) Sewage sludge. Requirements under section 405 of CWA governing the disposal of sewage sludge 

from publicly owned treatment works or any other treatment works treating domestic sewage for any use 

for which regulations have been established, in accordance with any applicable regulations. 

(p) Coast Guard. When a permit is issued to a facility that may operate at certain times as a means of 

transportation over water, a condition that the discharge shall comply with any applicable regulations 

promulgated by the Secretary of the department in which the Coast Guard is operating, that establish 

specifications for safe transportation, handling, carriage, and storage of pollutants. 

(q) Navigation. Any conditions that the Secretary of the Army considers necessary to ensure that 

navigation and anchorage will not be substantially impaired, in accordance with §124.59 of this chapter. 

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(r) Great Lakes . When a permit is issued to a facility that discharges into the Great Lakes System (as 

defined in 40 CFR 132.2), conditions promulgated by the State, Tribe, or EPA pursuant to 40 CFR part 

132. 

(s) Qualifying State, Tribal, or local programs. (1) For storm water discharges associated with small 

construction activity identified in §122.26(b)(15), the Director may include permit conditions that 

incorporate qualifying State, Tribal, or local erosion and sediment control program requirements by 

reference. Where a qualifying State, Tribal, or local program does not include one or more of the 

elements in this paragraph (s)(1), then the Director must include those elements as conditions in the 

permit. A qualifying State, Tribal, or local erosion and sediment control program is one that includes: 

(i) Requirements for construction site operators to implement appropriate erosion and sediment control 

best management practices; 

(ii) Requirements for construction site operators to control waste such as discarded building materials, 

concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause 

adverse impacts to water quality; 

(iii) Requirements for construction site operators to develop and implement a storm water pollution 

prevention plan. (A storm water pollution prevention plan includes site descriptions, descriptions of 

appropriate control measures, copies of approved State, Tribal or local requirements, maintenance 

procedures, inspection procedures, and identification of non-storm water discharges); and 

(iv) Requirements to submit a site plan for review that incorporates consideration of potential water 

quality impacts. 

(2) For storm water discharges from construction activity identified in §122.26(b)(14)(x), the Director may 

include permit conditions that incorporate qualifying State, Tribal, or local erosion and sediment control 

program requirements by reference. A qualifying State, Tribal or local erosion and sediment control 

program is one that includes the elements listed in paragraph (s)(1) of this section and any additional 

requirements necessary to achieve the applicable technology-based standards of “best available 

technology” and “best conventional technology” based on the best professional judgment of the permit 

writer. 

[48 FR 14153, Apr. 1, 1983] 

Editorial Note: For Federal Register citations affecting §122.44, see the List of CFR Sections 

Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov . 

§ 122.45 Calculating NPDES permit conditions (applicable to State NPDES programs, 

see §123.25). 

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(a) Outfalls and discharge points. All permit effluent limitations, standards and prohibitions shall be 

established for each outfall or discharge point of the permitted facility, except as otherwise provided 

under §122.44(k) (BMPs where limitations are infeasible) and paragraph (i) of this section (limitations on 

internal waste streams). 

(b) Production-based limitations. (1) In the case of POTWs, permit effluent limitations, standards, or 

prohibitions shall be calculated based on design flow. 

(2)(i) Except in the case of POTWs or as provided in paragraph (b)(2)(ii) of this section, calculation of 

any permit limitations, standards, or prohibitions which are based on production (or other measure of 

operation) shall be based not upon the designed production capacity but rather upon a reasonable 

measure of actual production of the facility. For new sources or new dischargers, actual production shall 

be estimated using projected production. The time period of the measure of production shall correspond 

to the time period of the calculated permit limitations; for example, monthly production shall be used to 

calculate average monthly discharge limitations. 

(ii)(A)( 1 ) The Director may include a condition establishing alternate permit limitations, standards, or 

prohibitions based upon anticipated increased (not to exceed maximum production capability) or 

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decreased production levels. 

( 2 ) For the automotive manufacturing industry only, the Regional Administrator shall, and the State 

Director may establish a condition under paragraph (b)(2)(ii)(A)( 1 ) of this section if the applicant 

satisfactorily demonstrates to the Director at the time the application is submitted that its actual 

production, as indicated in paragraph (b)(2)(i) of this section, is substantially below maximum production 

capability and that there is a reasonable potential for an increase above actual production during the 

duration of the permit. 

(B) If the Director establishes permit conditions under paragraph (b)(2)(ii)(A) of this section: 

( 1 ) The permit shall require the permittee to notify the Director at least two business days prior to a 

month in which the permittee expects to operate at a level higher than the lowest production level 

identified in the permit. The notice shall specify the anticipated level and the period during which the 

permittee expects to operate at the alternate level. If the notice covers more than one month, the notice 

shall specify the reasons for the anticipated production level increase. New notice of discharge at 

alternate levels is required to cover a period or production level not covered by prior notice or, if during 

two consecutive months otherwise covered by a notice, the production level at the permitted facility does 

not in fact meet the higher level designated in the notice. 

( 2 ) The permittee shall comply with the limitations, standards, or prohibitions that correspond to the 

lowest level of production specified in the permit, unless the permittee has notified the Director under 

paragraph (b)(2)(ii)(B)( 1 ) of this section, in which case the permittee shall comply with the lower of the 

actual level of production during each month or the level specified in the notice. 

( 3 ) The permittee shall submit with the DMR the level of production that actually occurred during each 

month and the limitations, standards, or prohibitions applicable to that level of production. 

(c) Metals. All permit effluent limitations, standards, or prohibitions for a metal shall be expressed in 

terms of “total recoverable metal” as defined in 40 CFR part 136 unless: 

(1) An applicable effluent standard or limitation has been promulgated under the CWA and specifies the 

limitation for the metal in the dissolved or valent or total form; or 

(2) In establishing permit limitations on a case-by-case basis under §125.3, it is necessary to express 

the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the CWA; 

or 

(3) All approved analytical methods for the metal inherently measure only its dissolved form (e.g., 

hexavalent chromium). 

(d) Continuous discharges. For continuous discharges all permit effluent limitations, standards, and 

prohibitions, including those necessary to achieve water quality standards, shall unless impracticable be 

stated as: 

(1) Maximum daily and average monthly discharge limitations for all dischargers other than publicly 

owned treatment works; and 

(2) Average weekly and average monthly discharge limitations for POTWs. 

(e) Non-continuous discharges. Discharges which are not continuous, as defined in §122.2, shall be 

particularly described and limited, considering the following factors, as appropriate: 

(1) Frequency (for example, a batch discharge shall not occur more than once every 3 weeks); 

(2) Total mass (for example, not to exceed 100 kilograms of zinc and 200 kilograms of chromium per 

batch discharge); 

(3) Maximum rate of discharge of pollutants during the discharge (for example, not to exceed 2 

kilograms of zinc per minute); and 

(4) Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure 

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(for example, shall not contain at any time more than 0.1 mg/1 zinc or more than 250 grams 

(1/4kilogram) of zinc in any discharge). 

(f) Mass limitations. (1) All pollutants limited in permits shall have limitations, standards or prohibitions 

expressed in terms of mass except: 

(i) For pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass; 

(ii) When applicable standards and limitations are expressed in terms of other units of measurement; or 

(iii) If in establishing permit limitations on a case-by-case basis under §125.3, limitations expressed in 

terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a 

measure of operation (for example, discharges of TSS from certain mining operations), and permit 

conditions ensure that dilution will not be used as a substitute for treatment. 

(2) Pollutants limited in terms of mass additionally may be limited in terms of other units of 

measurement, and the permit shall require the permittee to comply with both limitations. 

(g) Pollutants in intake water. (1) Upon request of the discharger, technology-based effluent limitations 

or standards shall be adjusted to reflect credit for pollutants in the discharger's intake water if: 

(i) The applicable effluent limitations and standards contained in 40 CFR subchapter N specifically 

provide that they shall be applied on a net basis; or 

(ii) The discharger demonstrates that the control system it proposes or uses to meet applicable 

technology-based limitations and standards would, if properly installed and operated, meet the 

limitations and standards in the absence of pollutants in the intake waters. 

(2) Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids 

(TSS) should not be granted unless the permittee demonstrates that the constituents of the generic 

measure in the effluent are substantially similar to the constituents of the generic measure in the intake 

water or unless appropriate additional limits are placed on process water pollutants either at the outfall 

or elsewhere. 

(3) Credit shall be granted only to the extent necessary to meet the applicable limitation or standard, up 

to a maximum value equal to the influent value. Additional monitoring may be necessary to determine 

eligibility for credits and compliance with permit limits. 

(4) Credit shall be granted only if the discharger demonstrates that the intake water is drawn from the 

same body of water into which the discharge is made. The Director may waive this requirement if he 

finds that no environmental degradation will result. 

(5) This section does not apply to the discharge of raw water clarifier sludge generated from the 

treatment of intake water. 

(h) Internal waste streams. (1) When permit effluent limitations or standards imposed at the point of 

discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may 

be imposed on internal waste streams before mixing with other waste streams or cooling water streams. 

In those instances, the monitoring required by §122.48 shall also be applied to the internal waste 

streams. 

(2) Limits on internal waste streams will be imposed only when the fact sheet under §124.56 sets forth 

the exceptional circumstances which make such limitations necessary, such as when the final discharge 

point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so 

diluted as to make monitoring impracticable, or the interferences among pollutants at the point of 

discharge would make detection or analysis impracticable. 

(i) Disposal of pollutants into wells, into POTWs or by land application. Permit limitations and standards 

shall be calculated as provided in §122.50. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049, Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 

54 FR 258, Jan. 4, 1989; 54 FR 18784, May 2, 1989; 65 FR 30909, May 15, 2000] 

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§ 122.46 Duration of permits (applicable to State programs, see §123.25). 

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(a) NPDES permits shall be effective for a fixed term not to exceed 5 years. 

(b) Except as provided in §122.6, the term of a permit shall not be extended by modification beyond the 

maximum duration specified in this section. 

(c) The Director may issue any permit for a duration that is less than the full allowable term under this 

section. 

(d) A permit may be issued to expire on or after the statutory deadline set forth in section 301(b)(2) (A), 

(C), and (E), if the permit includes effluent limitations to meet the requirements of section 301(b)(2) (A), 

(C), (D), (E) and (F), whether or not applicable effluent limitations guidelines have been promulgated or 

approved. 

(e) A determination that a particular discharger falls within a given industrial category for purposes of 

setting a permit expiration date under paragraph (d) of this section is not conclusive as to the 

discharger's inclusion in that industrial category for any other purposes, and does not prejudice any 

rights to challenge or change that inclusion at the time that a permit based on that determination is 

formulated. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 50 FR 6940, Feb. 19, 1985; 60 

FR 33931, June 29, 1995] 

§ 122.47 Schedules of compliance. 

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(a) General (applicable to State programs, see §123.25). The permit may, when appropriate, specify a 

schedule of compliance leading to compliance with CWA and regulations. 

(1) Time for compliance. Any schedules of compliance under this section shall require compliance as 

soon as possible, but not later than the applicable statutory deadline under the CWA. 

(2) The first NPDES permit issued to a new source or a new discharger shall contain a schedule of 

compliance only when necessary to allow a reasonable opportunity to attain compliance with 

requirements issued or revised after commencement of construction but less than three years before 

commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance 

shall be available only when necessary to allow a reasonable opportunity to attain compliance with 

requirements issued or revised less than three years before recommencement of discharge. 

(3) Interim dates. Except as provided in paragraph (b)(1)(ii) of this section, if a permit establishes a 

schedule of compliance which exceeds 1 year from the date of permit issuance, the schedule shall set 

forth interim requirements and the dates for their achievement. 

(i) The time between interim dates shall not exceed 1 year, except that in the case of a schedule for 

compliance with standards for sewage sludge use and disposal, the time between interim dates shall not 

exceed six months. 

(ii) If the time necessary for completion of any interim requirement (such as the construction of a control 

facility) is more than 1 year and is not readily divisible into stages for completion, the permit shall specify 

interim dates for the submission of reports of progress toward completion of the interim requirements 

and indicate a projected completion date. 

Note: Examples of interim requirements include: (a) Submit a complete Step 1 construction 

grant (for POTWs); (b) let a contract for construction of required facilities; (c) commence 

construction of required facilities; (d) complete construction of required facilities.

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(4) Reporting. The permit shall be written to require that no later than 14 days following each interim 

date and the final date of compliance, the permittee shall notify the Director in writing of its compliance 

or noncompliance with the interim or final requirements, or submit progress reports if paragraph (a)(3)(ii) 

is applicable. 

(b) Alternative schedules of compliance. An NPDES permit applicant or permittee may cease conducting 

regulated activities (by terminating of direct discharge for NPDES sources) rather than continuing to 

operate and meet permit requirements as follows: 

(1) If the permittee decides to cease conducting regulated activities at a given time within the term of a 

permit which has already been issued: 

(i) The permit may be modified to contain a new or additional schedule leading to timely cessation of 

activities; or 

(ii) The permittee shall cease conducting permitted activities before non-compliance with any interim or 

final compliance schedule requirement already specified in the permit. 

(2) If the decision to cease conducting regulated activities is made before issuance of a permit whose 

term will include the termination date, the permit shall contain a schedule leading to termination which 

will ensure timely compliance with applicable requirements no later than the statutory deadline. 

(3) If the permittee is undecided whether to cease conducting regulated activities, the Director may issue 

or modify a permit to contain two schedules as follows: 

(i) Both schedules shall contain an identical interim deadline requiring a final decision on whether to 

cease conducting regulated activities no later than a date which ensures sufficient time to comply with 

applicable requirements in a timely manner if the decision is to continue conducting regulated activities; 

(ii) One schedule shall lead to timely compliance with applicable requirements, no later than the statutory 

deadline; 

(iii) The second schedule shall lead to cessation of regulated activities by a date which will ensure timely 

compliance with applicable requirements no later than the statutory deadline. 

(iv) Each permit containing two schedules shall include a requirement that after the permittee has made 

a final decision under paragraph (b)(3)(i) of this section it shall follow the schedule leading to compliance 

if the decision is to continue conducting regulated activities, and follow the schedule leading to 

termination if the decision is to cease conducting regulated activities. 

(4) The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by 

a firm public commitment satisfactory to the Director, such as a resolution of the board of directors of a 

corporation. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985; 

54 FR 18784, May 2, 1989; 65 FR 30909, May 15, 2000] 

§ 122.48 Requirements for recording and reporting of monitoring results (applicable to 

State programs, see §123.25). 

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All permits shall specify: 

(a) Requirements concerning the proper use, maintenance, and installation, when appropriate, of 

monitoring equipment or methods (including biological monitoring methods when appropriate); 

(b) Required monitoring including type, intervals, and frequency sufficient to yield data which are 

representative of the monitored activity including, when appropriate, continuous monitoring; 

(c) Applicable reporting requirements based upon the impact of the regulated activity and as specified in 

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§122.44. Reporting shall be no less frequent than specified in the above regulation. 

[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985] 

§ 122.49 Considerations under Federal law. 

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The following is a list of Federal laws that may apply to the issuance of permits under these rules. When 

any of these laws is applicable, its procedures must be followed. When the applicable law requires 

consideration or adoption of particular permit conditions or requires the denial of a permit, those 

requirements also must be followed. 

(a) The Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq. section 7 of the Act prohibits the Regional 

Administrator from assisting by license or otherwise the construction of any water resources project that 

would have a direct, adverse effect on the values for which a national wild and scenic river was 

established. 

(b) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq. section 106 of the Act and 

implementing regulations (36 CFR part 800) require the Regional Administrator, before issuing a license, 

to adopt measures when feasible to mitigate potential adverse effects of the licensed activity and 

properties listed or eligible for listing in the National Register of Historic Places. The Act's requirements 

are to be implemented in cooperation with State Historic Preservation Officers and upon notice to, and 

when appropriate, in consultation with the Advisory Council on Historic Preservation. 

(c) The Endangered Species Act, 16 U.S.C. 1531 et seq. section 7 of the Act and implementing 

regulations (50 CFR part 402) require the Regional Administrator to ensure, in consultation with the 

Secretary of the Interior or Commerce, that any action authorized by EPA is not likely to jeopardize the 

continued existence of any endangered or threatened species or adversely affect its critical habitat. 

(d) The Coastal Zone Management Act, 16 U.S.C. 1451 et seq. section 307(c) of the Act and 

implementing regulations (15 CFR part 930) prohibit EPA from issuing a permit for an activity affecting 

land or water use in the coastal zone until the applicant certifies that the proposed activity complies with 

the State Coastal Zone Management program, and the State or its designated agency concurs with the 

certification (or the Secretary of Commerce overrides the State's nonconcurrence). 

(e) The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., requires that the Regional 

Administrator, before issuing a permit proposing or authorizing the impoundment (with certain 

exemptions), diversion, or other control or modification of any body of water, consult with the appropriate 

State agency exercising jurisdiction over wildlife resources to conserve those resources. 

(f) Executive orders. [Reserved] 

(g) The National Environmental Policy Act, 42 U.S.C. 4321 et seq ., may require preparation of an 

Environmental Impact Statement and consideration of EIS-related permit conditions (other than effluent 

limitations) as provided in §122.29(c). 

(Clean Water Act (33 U.S.C. 1251 et seq. ), Safe Drinking Water Act (42 U.S.C. 300f et seq. ), Clean Air 

Act (42 U.S.C. 7401 et seq. ), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq. )) 

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 49 FR 38050, Sept. 26, 1984] 

§ 122.50 Disposal of pollutants into wells, into publicly owned treatment works or by 

land application (applicable to State NPDES programs, see §123.25). 

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(a) When part of a discharger's process wastewater is not being discharged into waters of the United 

States or contiguous zone because it is disposed into a well, into a POTW, or by land application 

thereby reducing the flow or level of pollutants being discharged into waters of the United States, 

applicable effluent standards and limitations for the discharge in an NPDES permit shall be adjusted to 

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reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the 

permit shall be calculated by one of the following methods: 

(1) If none of the waste from a particular process is discharged into waters of the United States, and 

effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for 

the process shall be eliminated from calculation of permit effluent limitations or standards. 

(2) In all cases other than those described in paragraph (a)(1) of this section, effluent limitations shall be 

adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total 

waste stream by the amount of wastewater flow to be treated and discharged into waters of the United 

States, and dividing the result by the total wastewater flow. Effluent limitations and standards so 

calculated may be further adjusted under part 125, subpart D to make them more or less stringent if 

discharges to wells, publicly owned treatment works, or by land application change the character or 

treatability of the pollutants being discharged to receiving waters. This method may be algebraically 

expressed as: 

where P is the permit effluent limitation, E is the limitation derived by applying effluent 

guidelines to the total wastestream, N is the wastewater flow to be treated and discharged to 

waters of the United States, and T is the total wastewater flow. 

(b) Paragraph (a) of this section does not apply to the extent that promulgated effluent limitations 

guidelines: 

(1) Control concentrations of pollutants discharged but not mass; or 

(2) Specify a different specific technique for adjusting effluent limitations to account for well injection, 

land application, or disposal into POTWs. 

(c) Paragraph (a) of this section does not alter a discharger's obligation to meet any more stringent 

requirements established under §§122.41, 122.42, 122.43, and 122.44. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984] 

Subpart D—Transfer, Modification, Revocation and Reissuance, and Termination of 

Permits 

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§ 122.61 Transfer of permits (applicable to State programs, see §123.25). 

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(a) Transfers by modification. Except as provided in paragraph (b) of this section, a permit may be 

transferred by the permittee to a new owner or operator only if the permit has been modified or revoked 

and reissued (under §122.62(b)(2)), or a minor modification made (under §122.63(d)), to identify the new 

permittee and incorporate such other requirements as may be necessary under CWA. 

(b) Automatic transfers. As an alternative to transfers under paragraph (a) of this section, any NPDES 

permit may be automatically transferred to a new permittee if: 

(1) The current permittee notifies the Director at least 30 days in advance of the proposed transfer date 

in paragraph (b)(2) of this section; 

(2) The notice includes a written agreement between the existing and new permittees containing a 

specific date for transfer of permit responsibility, coverage, and liability between them; and 

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(3) The Director does not notify the existing permittee and the proposed new permittee of his or her 

intent to modify or revoke and reissue the permit. A modification under this subparagraph may also be a 

minor modification under §122.63. If this notice is not received, the transfer is effective on the date 

specified in the agreement mentioned in paragraph (b)(2) of this section. 

§ 122.62 Modification or revocation and reissuance of permits (applicable to State 

programs, see §123.25). 

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When the Director receives any information (for example, inspects the facility, receives information 

submitted by the permittee as required in the permit (see §122.41), receives a request for modification or 

revocation and reissuance under §124.5, or conducts a review of the permit file) he or she may 

determine whether or not one or more of the causes listed in paragraphs (a) and (b) of this section for 

modification or revocation and reissuance or both exist. If cause exists, the Director may modify or 

revoke and reissue the permit accordingly, subject to the limitations of §124.5(c), and may request an 

updated application if necessary. When a permit is modified, only the conditions subject to modification 

are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision 

and the permit is reissued for a new term. See §124.5(c)(2). If cause does not exist under this section or 

§122.63, the Director shall not modify or revoke and reissue the permit. If a permit modification satisfies 

the criteria in §122.63 for “minor modifications” the permit may be modified without a draft permit or 

public review. Otherwise, a draft permit must be prepared and other procedures in part 124 (or 

procedures of an approved State program) followed. 

(a) Causes for modification. The following are causes for modification but not revocation and reissuance 

of permits except when the permittee requests or agrees. 

(1) Alterations. There are material and substantial alterations or additions to the permitted facility or 

activity (including a change or changes in the permittee's sludge use or disposal practice) which 

occurred after permit issuance which justify the application of permit conditions that are different or 

absent in the existing permit. 

Note: Certain reconstruction activities may cause the new source provisions of §122.29 to be 

applicable.

(2) Information. The Director has received new information. Permits may be modified during their terms 

for this cause only if the information was not available at the time of permit issuance (other than revised 

regulations, guidance, or test methods) and would have justified the application of different permit 

conditions at the time of issuance. For NPDES general permits (§122.28) this cause includes any 

information indicating that cumulative effects on the environment are unacceptable. For new source or 

new discharger NPDES permits §§122.21, 122.29), this cause shall include any significant information 

derived from effluent testing required under §122.21(k)(5)(vi) or §122.21(h)(4)(iii) after issuance of the 

permit. 

(3) New regulations. The standards or regulations on which the permit was based have been changed 

by promulgation of amended standards or regulations or by judicial decision after the permit was issued. 

Permits may be modified during their terms for this cause only as follows: 

(i) For promulgation of amended standards or regulations, when: 

(A) The permit condition requested to be modified was based on a promulgated effluent limitation 

guideline, EPA approved or promulgated water quality standards, or the Secondary Treatment 

Regulations under part 133; and 

(B) EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline 

on which the permit condition was based, or has approved a State action with regard to a water quality 

standard on which the permit condition was based; and 

(C) A permittee requests modification in accordance with §124.5 within ninety (90) days after 

 Federal Register notice of the action on which the request is based. 

(ii) For judicial decisions, a court of competent jurisdiction has remanded and stayed EPA promulgated 

regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations 

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or guidelines on which the permit condition was based and a request is filed by the permittee in 

accordance with §124.5 within ninety (90) days of judicial remand. 

(iii) For changes based upon modified State certifications of NPDES permits, see §124.55(b). 

(4) Compliance schedules. The Director determines good cause exists for modification of a compliance 

schedule, such as an act of God, strike, flood, or materials shortage or other events over which the 

permittee has little or no control and for which there is no reasonably available remedy. However, in no 

case may an NPDES compliance schedule be modified to extend beyond an applicable CWA statutory 

deadline. See also §122.63(c) (minor modifications) and paragraph (a)(14) of this section (NPDES 

innovative technology). 

(5) When the permittee has filed a request for a variance under CWA section 301(c), 301(g), 301(h), 301

(i), 301(k), or 316(a) or for “fundamentally different factors” within the time specified in §122.21 or 

§125.27(a). 

(6) 307(a) toxics. When required to incorporate an applicable 307(a) toxic effluent standard or prohibition 

(see §122.44(b)). 

(7) Reopener. When required by the “reopener” conditions in a permit, which are established in the 

permit under §122.44(b) (for CWA toxic effluent limitations and Standards for sewage sludge use or 

disposal, see also §122.44(c)) or 40 CFR 403.18(e) (Pretreatment program). 

(8)(i) Net limits. Upon request of a permittee who qualifies for effluent limitations on a net basis under 

§122.45(g). 

(ii) When a discharger is no longer eligible for net limitations, as provided in §122.45(g)(1)(ii). 

(9) Pretreatment. As necessary under 40 CFR 403.8(e) (compliance schedule for development of 

pretreatment program). 

(10) Failure to notify. Upon failure of an approved State to notify, as required by section 402(b)(3), 

another State whose waters may be affected by a discharge from the approved State. 

(11) Non-limited pollutants. When the level of discharge of any pollutant which is not limited in the permit 

exceeds the level which can be achieved by the technology-based treatment requirements appropriate 

to the permittee under §125.3(c). 

(12) Notification levels. To establish a “notification level” as provided in §122.44(f). 

(13) Compliance schedules. To modify a schedule of compliance to reflect the time lost during 

construction of an innovative or alternative facility, in the case of a POTW which has received a grant 

under section 202(a)(3) of CWA for 100% of the costs to modify or replace facilities constructed with a 

grant for innovative and alternative wastewater technology under section 202(a)(2). In no case shall the 

compliance schedule be modified to extend beyond an applicable CWA statutory deadline for 

compliance. 

(14) For a small MS4, to include an effluent limitation requiring implementation of a minimum control 

measure or measures as specified in §122.34(b) when: 

(i) The permit does not include such measure(s) based upon the determination that another entity was 

responsible for implementation of the requirement(s); and 

(ii) The other entity fails to implement measure(s) that satisfy the requirement(s). 

(15) To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made 

in determining permit conditions. 

(16) When the discharger has installed the treatment technology considered by the permit writer in 

setting effluent limitations imposed under section 402(a)(1) of the CWA and has properly operated and 

maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this 

case, the limitations in the modified permit may reflect the level of pollutant control actually achieved (but 

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shall not be less stringent than required by a subsequently promulgated effluent limitations guideline). 

(17) Nutrient Management Plans. The incorporation of the terms of a CAFO's nutrient management plan 

into the terms and conditions of a general permit when a CAFO obtains coverage under a general permit 

in accordance with §§122.23(h) and 122.28 is not a cause for modification pursuant to the requirements 

of this section. 

(18) Land application plans . When required by a permit condition to incorporate a land application plan 

for beneficial reuse of sewage sludge, to revise an existing land application plan, or to add a land 

application plan. 

(b) Causes for modification or revocation and reissuance. The following are causes to modify or, 

alternatively, revoke and reissue a permit: 

(1) Cause exists for termination under §122.64, and the Director determines that modification or 

revocation and reissuance is appropriate. 

(2) The Director has received notification (as required in the permit, see §122.41(l)(3)) of a proposed 

transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an 

automatic transfer (§122.61(b)) but will not be revoked and reissued after the effective date of the 

transfer except upon the request of the new permittee. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 25981, June 25, 1984; 49 FR 37009, Sept. 29, 1984; 

49 FR 38050, Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 51 FR 20431, June 4, 1986; 51 FR 26993, 

July 28, 1986; 54 FR 256, 258, Jan. 4, 1989; 54 FR 18784, May 2, 1989; 60 FR 33931, June 29, 1995; 

64 FR 68847, Dec. 8, 1999; 65 FR 30909, May 15, 2000; 70 FR 60191, Oct. 14, 2005; 73 FR 70485, 

Nov. 20, 2008] 

§ 122.63 Minor modifications of permits. 

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Upon the consent of the permittee, the Director may modify a permit to make the corrections or 

allowances for changes in the permitted activity listed in this section, without following the procedures of 

part 124. Any permit modification not processed as a minor modification under this section must be 

made for cause and with part 124 draft permit and public notice as required in §122.62. Minor 

modifications may only: 

(a) Correct typographical errors; 

(b) Require more frequent monitoring or reporting by the permittee; 

(c) Change an interim compliance date in a schedule of compliance, provided the new date is not more 

than 120 days after the date specified in the existing permit and does not interfere with attainment of the 

final compliance date requirement; or 

(d) Allow for a change in ownership or operational control of a facility where the Director determines that 

no other change in the permit is necessary, provided that a written agreement containing a specific date 

for transfer of permit responsibility, coverage, and liability between the current and new permittees has 

been submitted to the Director. 

(e)(1) Change the construction schedule for a discharger which is a new source. No such change shall 

affect a discharger's obligation to have all pollution control equipment installed and in operation prior to 

discharge under §122.29. 

(2) Delete a point source outfall when the discharge from that outfall is terminated and does not result in 

discharge of pollutants from other outfalls except in accordance with permit limits. 

(f) [Reserved] 

(g) Incorporate conditions of a POTW pretreatment program that has been approved in accordance with 

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the procedures in 40 CFR 403.11 (or a modification thereto that has been approved in accordance with 

the procedures in 40 CFR 403.18) as enforceable conditions of the POTW's permits. 

(h) Incorporate changes to the terms of a CAFO's nutrient management plan that have been revised in 

accordance with the requirements of §122.42(e)(6). 

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984; 51 FR 20431, June 4, 1986; 

53 FR 40616, Oct. 17, 1988; 60 FR 33931, June 29, 1995; 73 FR 70485, Nov. 20, 2008] 

§ 122.64 Termination of permits (applicable to State programs, see §123.25). 

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(a) The following are causes for terminating a permit during its term, or for denying a permit renewal 

application: 

(1) Noncompliance by the permittee with any condition of the permit; 

(2) The permittee's failure in the application or during the permit issuance process to disclose fully all 

relevant facts, or the permittee's misrepresentation of any relevant facts at any time; 

(3) A determination that the permitted activity endangers human health or the environment and can only 

be regulated to acceptable levels by permit modification or termination; or 

(4) A change in any condition that requires either a temporary or permanent reduction or elimination of 

any discharge or sludge use or disposal practice controlled by the permit (for example, plant closure or 

termination of discharge by connection to a POTW). 

(b) The Director shall follow the applicable procedures in part 124 or part 22 of this chapter, as 

appropriate (or State procedures equivalent to part 124) in terminating any NPDES permit under this 

section, except that if the entire discharge is permanently terminated by elimination of the flow or by 

connection to a POTW (but not by land application or disposal into a well), the Director may terminate 

the permit by notice to the permittee. Termination by notice shall be effective 30 days after notice is sent, 

unless the permittee objects within that time. If the permittee objects during that period, the Director shall 

follow part 124 of this chapter or applicable State procedures for termination. Expedited permit 

termination procedures are not available to permittees that are subject to pending State and/or Federal 

enforcement actions including citizen suits brought under State or Federal law. If requesting expedited 

permit termination procedures, a permittee must certify that it is not subject to any pending State or 

Federal enforcement actions including citizen suits brought under State or Federal law. State-authorized 

NPDES programs are not required to use part 22 of this chapter procedures for NPDES permit 

terminations. 

[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985, as amended at 54 FR 18784, May 2, 1989; 65 

FR 30909, May 15, 2000] 

Appendix A to Part 122—NPDES Primary Industry Categories 

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Any permit issued after June 30, 1981 to dischargers in the following categories shall include effluent 

limitations and a compliance schedule to meet the requirements of section 301(b)(2)(A), (C), (D), (E) and 

(F) of CWA, whether or not applicable effluent limitations guidelines have been promulgated. See 

§§122.44 and 122.46. 

Industry Category

Adhesives and sealants 

Aluminum forming 

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Auto and other laundries 

Battery manufacturing 

Coal mining 

Coil coating 

Copper forming 

Electrical and electronic components 

Electroplating 

Explosives manufacturing 

Foundries 

Gum and wood chemicals 

Inorganic chemicals manufacturing 

Iron and steel manufacturing 

Leather tanning and finishing 

Mechanical products manufacturing 

Nonferrous metals manufacturing 

Ore mining 

Organic chemicals manufacturing 

Paint and ink formulation 

Pesticides 

Petroleum refining 

Pharmaceutical preparations 

Photographic equipment and supplies 

Plastics processing 

Plastic and synthetic materials manufacturing 

Porcelain enameling 

Printing and publishing 

Pulp and paper mills 

Rubber processing 

Soap and detergent manufacturing 

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Steam electric power plants 

Textile mills 

Timber products processing 

Appendix B to Part 122 [Reserved] 

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Appendix C to Part 122—Criteria for Determining a Concentrated Aquatic Animal 

Production Facility (§122.24) 

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A hatchery, fish farm, or other facility is a concentrated aquatic animal production facility for purposes of 

§122.24 if it contains, grows, or holds aquatic animals in either of the following categories: 

(a) Cold water fish species or other cold water aquatic animals in ponds, raceways, or other similar 

structures which discharge at least 30 days per year but does not include: 

(1) Facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of 

aquatic animals per year; and 

(2) Facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the 

calendar month of maximum feeding. 

(b) Warm water fish species or other warm water aquatic animals in ponds, raceways, or other similar 

structures which discharge at least 30 days per year, but does not include: 

(1) Closed ponds which discharge only during periods of excess runoff; or 

(2) Facilities which produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) 

of aquatic animals per year. 

“Cold water aquatic animals” include, but are not limited to, the Salmonidae family of fish; e.g., trout and 

salmon. 

“Warm water aquatic animals” include, but are not limited to, the Ameiuride, Centrarchidae and 

Cyprinidae families of fish; e.g., respectively, catfish, sunfish and minnows. 

Appendix D to Part 122—NPDES Permit Application Testing Requirements (§122.21) 

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Table I—Testing Requirements for Organic Toxic Pollutants by Industrial Category for Existing 

Dischargers 

Industrial category

GC/MS Fraction1

Volatile Acid Base/neutral Pesticide

Adhesives and Sealants 2 2 2 

Aluminum Forming 2 2 2 

Auto and Other Laundries 2 2 2 2 

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1The toxic pollutants in each fraction are listed in Table II.

2Testing required.

Table II—Organic Toxic Pollutants in Each of Four Fractions in Analysis by Gas Chromatography/Mass 

Spectroscopy (GS/MS) 

Battery Manufacturing 2 2 

Coal Mining 2 2 2 2 

Coil Coating 2 2 2 

Copper Forming 2 2 2 

Electric and Electronic Components 2 2 2 2 

Electroplating 2 2 2 

Explosives Manufacturing 2 2 

Foundries 2 2 2 

Gum and Wood Chemicals 2 2 2 2 

Inorganic Chemicals Manufacturing 2 2 2 

Iron and Steel Manufacturing 2 2 2 

Leather Tanning and Finishing 2 2 2 2 

Mechanical Products Manufacturing 2 2 2 

Nonferrous Metals Manufacturing 2 2 2 2 

Ore Mining 2 2 2 2 

Organic Chemicals Manufacturing 2 2 2 2 

Paint and Ink Formulation 2 2 2 2 

Pesticides 2 2 2 2 

Petroleum Refining 2 2 2 2 

Pharmaceutical Preparations 2 2 2 

Photographic Equipment and Supplies 2 2 2 2 

Plastic and Synthetic Materials 

Manufacturing

2 2 2 2 

Plastic Processing 2 

Porcelain Enameling 2 2 2 

Printing and Publishing 2 2 2 2 

Pulp and Paper Mills 2 2 2 2 

Rubber Processing 2 2 2 

Soap and Detergent Manufacturing 2 2 2 

Steam Electric Power Plants 2 2 2 

Textile Mills 2 2 2 2 

Timber Products Processing 2 2 2 2 

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Volatiles

1V acrolein 

2V acrylonitrile 

3V benzene 

5V bromoform 

6V carbon tetrachloride 

7V chlorobenzene 

8V chlorodibromomethane 

9V chloroethane 

10V 2-chloroethylvinyl ether 

11V chloroform 

12V dichlorobromomethane 

14V 1,1-dichloroethane 

15V 1,2-dichloroethane 

16V 1,1-dichloroethylene 

17V 1,2-dichloropropane 

18V 1,3-dichloropropylene 

19V ethylbenzene 

20V methyl bromide 

21V methyl chloride 

22V methylene chloride 

23V 1,1,2,2-tetrachloroethane 

24V tetrachloroethylene 

25V toluene 

26V 1,2-trans-dichloroethylene 

27V 1,1,1-trichloroethane 

28V 1,1,2-trichloroethane 

29V trichloroethylene 

31V vinyl chloride 

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Acid Compounds

1A 2-chlorophenol 

2A 2,4-dichlorophenol 

3A 2,4-dimethylphenol 

4A 4,6-dinitro-o-cresol 

5A 2,4-dinitrophenol 

6A 2-nitrophenol 

7A 4-nitrophenol 

8A p-chloro-m-cresol 

9A pentachlorophenol 

10A phenol 

11A 2,4,6-trichlorophenol 

Base/Neutral

1B acenaphthene 

2B acenaphthylene 

3B anthracene 

4B benzidine 

5B benzo(a)anthracene 

6B benzo(a)pyrene 

7B 3,4-benzofluoranthene 

8B benzo(ghi)perylene 

9B benzo(k)fluoranthene 

10B bis(2-chloroethoxy)methane 

11B bis(2-chloroethyl)ether 

12B bis(2-chloroisopropyl)ether 

13B bis (2-ethylhexyl)phthalate 

14B 4-bromophenyl phenyl ether 

15B butylbenzyl phthalate 

16B 2-chloronaphthalene 

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17B 4-chlorophenyl phenyl ether 

18B chrysene 

19B dibenzo(a,h)anthracene 

20B 1,2-dichlorobenzene 

21B 1,3-dichlorobenzene 

22B 1,4-dichlorobenzene 

23B 3,3′-dichlorobenzidine 

24B diethyl phthalate 

25B dimethyl phthalate 

26B di-n-butyl phthalate 

27B 2,4-dinitrotoluene 

28B 2,6-dinitrotoluene 

29B di-n-octyl phthalate 

30B 1,2-diphenylhydrazine (as azobenzene) 

31B fluroranthene 

32B fluorene 

33B hexachlorobenzene 

34B hexachlorobutadiene 

35B hexachlorocyclopentadiene 

36B hexachloroethane 

37B indeno(1,2,3-cd)pyrene 

38B isophorone 

39B napthalene 

40B nitrobenzene 

41B N-nitrosodimethylamine 

42B N-nitrosodi-n-propylamine 

43B N-nitrosodiphenylamine 

44B phenanthrene 

45B pyrene 

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46B 1,2,4-trichlorobenzene 

Pesticides

1P aldrin 

2P alpha-BHC 

3P beta-BHC 

4P gamma-BHC 

5P delta-BHC 

6P chlordane 

7P 4,4′-DDT 

8P 4,4′-DDE 

9P 4,4′-DDD 

10P dieldrin 

11P alpha-endosulfan 

12P beta-endosulfan 

13P endosulfan sulfate 

14P endrin 

15P endrin aldehyde 

16P heptachlor 

17P heptachlor epoxide 

18P PCB-1242 

19P PCB-1254 

20P PCB-1221 

21P PCB-1232 

22P PCB-1248 

23P PCB-1260 

24P PCB-1016 

25P toxaphene 

Table III—Other Toxic Pollutants (Metals and Cyanide) and Total Phenols 

Antimony, Total 

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Arsenic, Total 

Beryllium, Total 

Cadmium, Total 

Chromium, Total 

Copper, Total 

Lead, Total 

Mercury, Total 

Nickel, Total 

Selenium, Total 

Silver, Total 

Thallium, Total 

Zinc, Total 

Cyanide, Total 

Phenols, Total 

Table IV—Conventional and Nonconventional Pollutants Required To Be Tested by Existing Dischargers 

if Expected to be Present 

Bromide 

Chlorine, Total Residual 

Color 

Fecal Coliform 

Fluoride 

Nitrate-Nitrite 

Nitrogen, Total Organic 

Oil and Grease 

Phosphorus, Total 

Radioactivity 

Sulfate 

Sulfide 

Sulfite 

Surfactants 

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Aluminum, Total 

Barium, Total 

Boron, Total 

Cobalt, Total 

Iron, Total 

Magnesium, Total 

Molybdenum, Total 

Manganese, Total 

Tin, Total 

Titanium, Total 

Table V—Toxic Pollutants and Hazardous Substances Required To Be Identified by Existing 

Dischargers if Expected To Be Present 

Toxic Pollutants

Asbestos 

Hazardous Substances

Acetaldehyde 

Allyl alcohol 

Allyl chloride 

Amyl acetate 

Aniline 

Benzonitrile 

Benzyl chloride 

Butyl acetate 

Butylamine 

Captan 

Carbaryl 

Carbofuran 

Carbon disulfide 

Chlorpyrifos 

Coumaphos 

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Cresol 

Crotonaldehyde 

Cyclohexane 

2,4-D (2,4-Dichlorophenoxy acetic acid) 

Diazinon 

Dicamba 

Dichlobenil 

Dichlone 

2,2-Dichloropropionic acid 

Dichlorvos 

Diethyl amine 

Dimethyl amine 

Dintrobenzene 

Diquat 

Disulfoton 

Diuron 

Epichlorohydrin 

Ethion 

Ethylene diamine 

Ethylene dibromide 

Formaldehyde 

Furfural 

Guthion 

Isoprene 

Isopropanolamine Dodecylbenzenesulfonate 

Kelthane 

Kepone 

Malathion 

Mercaptodimethur 

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Methoxychlor 

Methyl mercaptan 

Methyl methacrylate 

Methyl parathion 

Mevinphos 

Mexacarbate 

Monoethyl amine 

Monomethyl amine 

Naled 

Napthenic acid 

Nitrotoluene 

Parathion 

Phenolsulfanate 

Phosgene 

Propargite 

Propylene oxide 

Pyrethrins 

Quinoline 

Resorcinol 

Strontium 

Strychnine 

Styrene 

2,4,5-T (2,4,5-Trichlorophenoxy acetic acid) 

TDE (Tetrachlorodiphenylethane) 

2,4,5-TP [2-(2,4,5-Trichlorophenoxy) propanoic acid] 

Trichlorofan 

Triethanolamine dodecylbenzenesulfonate 

Triethylamine 

Trimethylamine 

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Uranium 

Vanadium 

Vinyl acetate 

Xylene 

Xylenol 

Zirconium 

[Note 1: The Environmental Protection Agency has suspended the requirements of §122.21(g)(7)(ii)(A) 

and Table I of Appendix D as they apply to certain industrial categories. The suspensions are as follows: 

a. At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency suspended until further notice 

§122.21(g)(7)(ii)(A) as it applies to coal mines. 

b. At 46 FR 22585, Apr. 20, 1981, the Environmental Protection Agency suspended until further notice 

§122.21(g)(7)(ii)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as 

they apply to: 

1. Testing and reporting for all four organic fractions in the Greige Mills Subcategory of the Textile Mills 

industry (Subpart C—Low water use processing of 40 CFR part 410), and testing and reporting for the 

pesticide fraction in all other subcategories of this industrial category. 

2. Testing and reporting for the volatile, base/neutral and pesticide fractions in the Base and Precious 

Metals Subcategory of the Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and testing 

and reporting for all four fractions in all other subcategories of this industrial category. 

3. Testing and reporting for all four GC/MS fractions in the Porcelain Enameling industry. 

c. At 46 FR 35090, July 1, 1981, the Environmental Protection Agency suspended until further notice 

§122.21(g)(7)(ii)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as 

they apply to: 

1. Testing and reporting for the pesticide fraction in the Tall Oil Rosin Subcategory (subpart D) and 

Rosin-Based Derivatives Subcategory (subpart F) of the Gum and Wood Chemicals industry (40 CFR 

part 454), and testing and reporting for the pesticide and base/netural fractions in all other subcategories 

of this industrial category. 

2. Testing and reporting for the pesticide fraction in the Leather Tanning and Finishing, Paint and Ink 

Formulation, and Photographic Supplies industrial categories. 

3. Testing and reporting for the acid, base/neutral and pesticide fractions in the Petroleum Refining 

industrial category. 

4. Testing and reporting for the pesticide fraction in the Papergrade Sulfite subcategories (subparts J 

and U) of the Pulp and Paper industry (40 CFR part 430); testing and reporting for the base/neutral and 

pesticide fractions in the following subcategories: Deink (subpart Q), Dissolving Kraft (subpart F), and 

Paperboard from Waste Paper (subpart E); testing and reporting for the volatile, base/neutral and 

pesticide fractions in the following subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical 

(subparts B and C), and Nonintegrated-Fine Papers (subpart R); and testing and reporting for the acid, 

base/neutral, and pesticide fractions in the following subcategories: Fine Bleached Kraft (subpart I), 

Dissolving Sulfite Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market Bleached Kraft 

(subpart G), Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers (subpart S). 

5. Testing and reporting for the base/neutral fraction in the Once-Through Cooling Water, Fly Ash and 

Bottom Ash Transport Water process wastestreams of the Steam Electric Power Plant industrial 

category. 

This revision continues these suspensions.]* 

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*Editorial Note: The words “This revision” refer to the document published at 48 FR 14153, 

Apr. 1, 1983. 

For the duration of the suspensions, therefore, Table I effectively reads: 

Table I—Testing Requirements for Organic Toxic Pollutants by Industry Category 

Industry category

GC/MS fraction2

Volatile Acid Neutral Pesticide

Adhesives and sealants (

1) (1) (1) 

Aluminum forming (

1) (1) (1) 

Auto and other laundries (

1) (1) (1) (1) 

Battery manufacturing (

1) (1) 

Coal mining 

Coil coating (

1) (1) (1) 

Copper forming (

1) (1) (1) 

Electric and electronic compounds (

1) (1) (1) (1) 

Electroplating (

1) (1) (1) 

Explosives manufacturing (

1) (1) 

Foundries (

1) (1) (1) 

Gum and wood (all subparts except D and 

F) (

1) (1) 

Subpart D—tall oil rosin (

1) (1) (1) 

Subpart F—rosin-based derivatives (

1) (1) (1) 

Inorganic chemicals manufacturing (

1) (1) (1) 

Iron and steel manufacturing (

1) (1) (1) 

Leather tanning and finishing (

1) (1) (1) 

Mechanical products manufacturing (

1) (1) (1) 

Nonferrous metals manufacturing (

1) (1) (1) (1) 

Ore mining (applies to the base and 

precious metals/Subpart B)

 (

1) 

Organic chemicals manufacturing (

1) (1) (1) (1) 

Paint and ink formulation (

1) (1) (1) 

Pesticides (

1) (1) (1) (1) 

Petroleum refining (

1) 

Pharmaceutical preparations (

1) (1) (1) 

Photographic equipment and supplies (

1) (1) (1) 

Plastic and synthetic materials 

manufacturing (

1) (1) (1) (1) 

Plastic processing (

1) 

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1Testing required.

2The pollutants in each fraction are listed in Item V-C.

3Pulp and Paperboard Mills:

Porcelain enameling

Printing and publishing (

1) (1) (1) (1) 

Pulp and paperboard mills—see footnote3

Rubber processing (

1) (1) (1) 

Soap and detergent manufacturing (

1) (1) (1) 

Steam electric power plants (

1) (1) 

Textile mills (Subpart C—Greige Mills are 

exempt from this table) (

1) (1) (1) 

Timber products processing (

1) (1) (1) (1) 

 Subpart3

GS/MS fractions

VOA Acid Base/neutral Pesticides

 A 2 (1) 2 (1) 

 B 2 (1) 2 2 

 C 2 (1) 2 2 

 D 2 (1) 2 2 

 E (

1) (1) 2 (1) 

 F (

1) (1) 2 2 

 G (

1) (1) 2 2 

 H (

1) (1) 2 2 

 I (

1) (1) 2 2 

 J (

1) (1) (1) 2 

 K (

1) (1) 2 2 

 L (

1) (1) 2 2 

 M (

1) (1) 2 2 

 N (

1) (1) 2 2 

 O (

1) (1) 2 2 

 P (

1) (1) 2 2 

 Q (

1) (1) 2 (1) 

 R 2 (1) 2 2 

 S (

1) (1) 2 (1) 

 T (

1) (1) 2 (1) 

 U (

1) (1) (1) 2 

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1Must test.

2Do not test unless “reason to believe” it is discharged.

3Subparts are defined in 40 CFR Part 430.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985] 

Appendix E to Part 122—Rainfall Zones of the United States 

 top

View or download PDF 

Not Shown: Alaska (Zone 7); Hawaii (Zone 7); Northern Mariana Islands (Zone 7); Guam (Zone 7); 

American Samoa (Zone 7); Trust Territory of the Pacific Islands (Zone 7); Puerto Rico (Zone 3) Virgin 

Islands (Zone 3). 

Source: Methodology for Analysis of Detention Basins for Control of Urban Runoff Quality, prepared for 

U.S. Environmental Protection Agency, Office of Water, Nonpoint Source Division, Washington, DC, 

1986. 

[55 FR 48073, Nov. 16, 1990] 

Appendix F to Part 122—Incorporated Places With Populations Greater Than 250,000 

According to the 1990 Decennial Census by the Bureau of the Census 

 top

State Incorporated Place

Alabama Birmingham.

Arizona Phoenix.

 Tucson.

California Long Beach.

 Los Angeles.

 Oakland.

 Sacramento.

 San Diego.

 San Francisco.

 San Jose.

Colorado Denver.

District of Columbia.

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Florida Jacksonville.

 Miami.

 Tampa.

Georgia. Atlanta.

Illinois Chicago.

Indiana Indianapolis.

Kansas Wichita.

Kentucky Louisville.

Louisiana New Orleans.

Maryland Baltimore.

Massachusetts Boston.

Michigan Detroit.

Minnesota Minneapolis.

 St. Paul.

Missouri Kansas City.

 St. Louis.

Nebraska Omaha.

New Jersey Newark.

New Mexico Albuquerque.

New York Buffalo. 

Bronx Borough. 

Brooklyn Borough. 

Manhattan Borough. 

Queens Borough. 

Staten Island Borough.

North Carolina Charlotte.

Ohio Cincinnati. 

Cleveland. 

Columbus. 

Toledo.

Oklahoma Oklahoma City. 

Tulsa.

Oregon Portland.

Pennsylvania Philadelphia. 

Pittsburgh.

Tennessee Memphis. 

Nashville/Davidson.

Texas Austin.

 Dallas.

 El Paso.

 Fort Worth.

 Houston.

 San Antonio.

Virginia Norfolk.

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[64 FR 68847, Dec. 8, 1999, as amended at 67 FR 47152, July 17, 2002] 

Appendix G to Part 122—Incorporated Places With Populations Greater Than 100,000 

But Less Than 250,000 According to the 1990 Decennial Census by the Bureau of the 

Census 

 top

 Virginia Beach.

Washington Seattle.

Wisconsin Milwaukee.

State Incorporated place

Alabama Huntsville.

 Mobile.

 Montgomery.

Alaska Anchorage.

Arizona Mesa.

 Tempe.

Arkansas Little Rock.

California Anaheim.

 Bakersfield.

 Berkeley.

 Chula Vista.

 Concord.

 El Monte.

 Escondido.

 Fremont.

 Fresno.

 Fullerton.

 Garden Grove.

 Glendale.

 Hayward.

 Huntington Beach.

 Inglewood.

 Irvine.

 Modesto.

 Moreno Valley.

 Oceanside.

 Ontario.

 Orange.

Colorado Aurora.

 Colorado Springs.

 Lakewood.

 Pueblo.

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Connecticut Bridgeport.

 Hartford.

 New Haven.

 Stamford.

 Waterbury.

Florida Fort Lauderdale.

 Hialeah.

 Hollywood.

 Orlando.

 St. Petersburg.

 Tallahassee.

Georgia Columbus.

 Macon.

 Savannah.

Idaho Boise City.

Illinois Peoria.

 Rockford.

Indiana Evansville.

 Fort Wayne.

 Gary.

 South Bend.

Iowa Cedar Rapids.

 Davenport.

 Des Moines.

Kansas Kansas City.

 Topeka.

Kentucky Lexington-Fayette.

Louisiana Baton Rouge.

 Shreveport.

Massachusetts Springfield.

 Worcester.

Michigan Ann Arbor.

 Flint.

 Grand Rapids.

 Lansing.

 Livonia.

 Sterling Heights.

 Warren.

Mississippi Jackson.

Missouri Independence.

 Springfield.

Nebraska Lincoln.

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Nevada Las Vegas.

 Reno.

New Jersey Elizabeth.

 Jersey City.

 Paterson.

New York Albany.

 Rochester.

 Syracuse.

 Yonkers.

North Carolina Durham.

 Greensboro.

 Raleigh.

 Winston-Salem.

Ohio Akron.

 Dayton.

 Youngstown.

Oregon Eugene.

Pennsylvania Allentown.

 Erie.

Rhode Island Providence.

South Carolina Columbia.

Tennessee Chattanooga.

 Knoxville.

Texas Abilene.

 Amarillo.

 Arlington.

 Beaumont.

 Corpus Christi.

 Garland.

 Irving.

 Laredo.

 Lubbock.

 Mesquite.

 Pasadena.

 Plano.

 Waco.

Utah Salt Lake City.

Virginia Alexandria.

 Chesapeake.

 Hampton.

 Newport News.

 Portsmouth.

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[64 FR 68848, Dec. 8, 1999] 

Appendix H to Part 122—Counties With Unincorporated Urbanized Areas With a 

Population of 250,000 or More According to the 1990 Decennial Census by the Bureau 

of the Census 

 top

1County was previously listed in this appendix; however, population dropped to below 250,000 in the 

1990 Census. 

[64 FR 68848, Dec. 8, 1999] 

Appendix I to Part 122—Counties With Unincorporated Urbanized Areas Greater Than 

100,000, But Less Than 250,000 According to the 1990 Decennial Census by the Bureau 

of the Census 

 top

 Richmond.

 Roanoke.

Washington Spokane.

 Tacoma.

Wisconsin Madison.

State County Unincorporated urbanized population

California Los Angeles 886,780

 Sacramento 594,889

 San Diego 250,414

Delaware New Castle 296,996

Florida Dade 1,014,504

Georgia DeKalb 448,686

Hawaii Honolulu1 114,506

Maryland Anne Arundel 344,654

 Baltimore 627,593

 Montgomery 599,028

 Prince George's 494,369

Texas Harris 729,206

Utah Salt Lake 270,989

Virginia Fairfax 760,730

Washington King 520,468

State County Unincorporated urbanized population

Alabama Jefferson 78,608

Arizona Pima 162,202

California Alameda 115,082

 Contra Costa 131,082

 Kern 128,503

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1County was previously listed in this appendix; however, population dropped to below 100,000 in the 

1990 Census. 

[64 FR 68849, Dec. 8, 1999] 

 Orange 223,081

 Riverside 166,509

 San Bernardino 162,202

Colorado Arapahoe 103,248

Florida Broward 142,329

 Escambia 167,463

 Hillsborough 398,593

 Lee 102,337

 Manatee 123,828

 Orange 378,611

 Palm Beach 360,553

 Pasco 148,907

 Pinellas 255,772

 Polk 121,528

 Sarasota 172,600

 Seminole 127,873

Georgia Clayton 133,237

 Cobb 322,595

 Fulton 127,776

 Gwinnett 237,305

 Richmond 126,476

Kentucky Jefferson 239,430

Louisiana East Baton Rouge 102,539

 Parish 331,307

 Jefferson Parish

Maryland Howard 157,972

North Carolina Cumberland 146,827

Nevada Clark 327,618

Oregon Multnomah1 52,923

 Washington 116,687

South Carolina Greenville 147,464

 Richland 130,589

Virginia Arlington 170,936

 Chesterfield 174,488

 Henrico 201,367

 Prince William 157,131

Washington Pierce 258,530

 Snohomish 157,218

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Appendix J to Part 122—NPDES Permit Testing Requirements for Publicly Owned 

Treatment Works (§122.21(j)) 

 top

Table 1A—Effluent Parameters for All POTWS 

Biochemical oxygen demand (BOD–5 or CBOD–5) 

Fecal coliform 

Design Flow Rate 

pH 

Temperature 

Total suspended solids 

Table 1—Effluent Parameters for All POTWS With a Flow Equal to or Greater Than 0.1 MGD 

Ammonia (as N) 

Chlorine (total residual, TRC) 

Dissolved oxygen 

Nitrate/Nitrite 

Kjeldahl nitrogen 

Oil and grease 

Phosphorus 

Total dissolved solids 

Table 2—Effluent Parameters for Selected POTWS 

Hardness 

Metals (total recoverable), cyanide and total phenols 

Antimony 

Arsenic 

Beryllium 

Cadmium 

Chromium 

Copper 

Lead 

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Mercury 

Nickel 

Selenium 

Silver 

Thallium 

Zinc 

Cyanide 

Total phenolic compounds 

Volatile organic compounds 

Acrolein 

Acrylonitrile 

Benzene 

Bromoform 

Carbon tetrachloride 

Chlorobenzene 

Chlorodibromomethane 

Chloroethane 

2-chloroethylvinyl ether 

Chloroform 

Dichlorobromomethane 

1,1-dichloroethane 

1,2-dichloroethane 

Trans-1,2-dichloroethylene 

1,1-dichloroethylene 

1,2-dichloropropane 

1,3-dichloropropylene 

Ethylbenzene 

Methyl bromide 

Methyl chloride 

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Methylene chloride 

1,1,2,2-tetrachloroethane 

Tetrachloroethylene 

Toluene 

1,1,1-trichloroethane 

1,1,2-trichloroethane 

Trichloroethylene 

Vinyl chloride 

Acid-extractable compounds 

P-chloro-m-creso 

2-chlorophenol 

2,4-dichlorophenol 

2,4-dimethylphenol 

4,6-dinitro-o-cresol 

2,4-dinitrophenol 

2-nitrophenol 

4-nitrophenol 

Pentachlorophenol 

Phenol 

2,4,6-trichlorophenol 

Base-neutral compounds 

Acenaphthene 

Acenaphthylene 

Anthracene 

Benzidine 

Benzo(a)anthracene 

Benzo(a)pyrene 

3,4 benzofluoranthene 

Benzo(ghi)perylene 

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Benzo(k)fluoranthene 

Bis (2-chloroethoxy) methane 

Bis (2-chloroethyl) ether 

Bis (2-chloroisopropyl) ether 

Bis (2-ethylhexyl) phthalate 

4-bromophenyl phenyl ether 

Butyl benzyl phthalate 

2-chloronaphthalene 

4-chlorophenyl phenyl ether 

Chrysene 

Di-n-butyl phthalate 

Di-n-octyl phthalate 

Dibenzo(a,h)anthracene 

1,2-dichlorobenzene 

1,3-dichlorobenzene 

1,4-dichlorobenzene 

3,3-dichlorobenzidine 

Diethyl phthalate 

Dimethyl phthalate 

2,4-dinitrotoluene 

2,6-dinitrotoluene 

1,2-diphenylhydrazine 

Fluoranthene 

Fluorene 

Hexachlorobenzene 

Hexachlorobutadiene 

Hexachlorocyclo-pentadiene 

Hexachloroethane 

Indeno(1,2,3-cd)pyrene 

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Isophorone 

Naphthalene 

Nitrobenzene 

N-nitrosodi-n-propylamine 

N-nitrosodimethylamine 

N-nitrosodiphenylamine 

Phenanthrene 

Pyrene 

1,2,4,-trichlorobenzene 

[65 FR 42469, Aug. 4, 2000] 

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