Appendix E.1 Authorizing Regulation

‘Clean Water Act, Section 402: National 

Pollutant Discharge Elimination System

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of this title, the Administrator may, after 

opportunity for public hearing issue a permit for the discharge of any pollutant, or combination 

of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge 

will meet either

(A) all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this 

title, or

(B) prior to the taking of necessary implementing actions relating to all such requirements, such 

conditions as the Administrator determines are necessary to carry out the provisions of this 

chapter.

(2) The Administrator shall prescribe conditions for such permits to assure compliance with the 

requirements of paragraph (1) of this subsection, including conditions on data and information 

collection, reporting, and such other requirements as he deems appropriate.

(3) The permit program of the Administrator under paragraph (1) of this subsection, and permits 

issued thereunder, shall be subject to the same terms, conditions, and requirements as apply to a 

State permit program and permits issued thereunder under subsection (b) of this section.

(4) All permits for discharges into the navigable waters issued pursuant to section 407 of this title 

shall be deemed to be permits issued under this subchapter, and permits issued under this 

subchapter shall be deemed to be permits issued under section 407 of this title, and shall continue 

in force and effect for their term unless revoked, modified, or suspended in accordance with the 

provisions of this chapter.

(5) No permit for a discharge into the navigable waters shall be issued under section 407 of this 

title after October 18, 1972. Each application for a permit under section 407 of this title, pending 

on October 18, 1972, shall be deemed to be an application for a permit under this section. The 

Administrator shall authorize a State, which he determines has the capability of administering a 

permit program which will carry out the objectives of this chapter to issue permits for discharges 

into the navigable waters within the jurisdiction of such State. The Administrator may exercise 

the authority granted him by the preceding sentence only during the period which begins on 

October 18, 1972, and ends either on the ninetieth day after the date of the first promulgation of 
guidelines required by section 1314(i)(2) of this title, or the date of approval by the 

Administrator of a permit program for such State under subsection (b) of this section, whichever 

date first occurs, and no such authorization to a State shall extend beyond the last day of such 

period. Each such permit shall be subject to such conditions as the Administrator determines are 

necessary to carry out the provisions of this chapter. No such permit shall issue if the 

Administrator objects to such issuance.

(b) State permit programs

At any time after the promulgation of the guidelines required by subsection (i)(2) of section 1314 

of this title, the Governor of each State desiring to administer its own permit program for 

discharges into navigable waters within its jurisdiction may submit to the Administrator a full 

and complete description of the program it proposes to establish and administer under State law 

or under an interstate compact. In addition, such State shall submit a statement from the attorney 

general (or the attorney for those State water pollution control agencies which have independent 

legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of 

such State, or the interstate compact, as the case may be, provide adequate authority to carry out 

the described program. The Administrator shall approve each submitted program unless he 

determines that adequate authority does not exist:

(1) To issue permits which -

(A) apply, and insure compliance with, any applicable requirements of sections 1311, 1312, 

1316, 1317, and 1343 of this title;

(B) are for fixed terms not exceeding five years; and

(C) can be terminated or modified for cause including, but not limited to, the following:

(i) violation of any condition of the permit;

(ii) obtaining a permit by misrepresentation, or failure to disclose fully all relevant facts;

(iii) change in any condition that requires either a temporary or permanent reduction or 

elimination of the permitted discharge;

(D) control the disposal of pollutants into wells;

(2)

(A) To issue permits which apply, and insure compliance with, all applicable requirements of 

section 1318 of this title; or

(B) To inspect, monitor, enter, and require reports to at least the same extent as required in 

section 1318 of this title;
(3) To insure that the public, and any other State the waters of which may be affected, receive 

notice of each application for a permit and to provide an opportunity for public hearing before a 

ruling on each such application;

(4) To insure that the Administrator receives notice of each application (including a copy 

thereof) for a permit;

(5) To insure that any State (other than the permitting State), whose waters may be affected by 

the issuance of a permit may submit written recommendations to the permitting State (and the 

Administrator) with respect to any permit application and, if any part of such written 

recommendations are not accepted by the permitting State, that the permitting State will notify 

such affected State (and the Administrator) in writing of its failure to so accept such 

recommendations together with its reasons for so doing;

(6) To insure that no permit will be issued if, in the judgment of the Secretary of the Army acting 

through the Chief of Engineers, after consultation with the Secretary of the department in which 

the Coast Guard is operating, anchorage and navigation of any of the navigable waters would be 

substantially impaired thereby;

(7) To abate violations of the permit or the permit program, including civil and criminal penalties 

and other ways and means of enforcement;

(8) To insure that any permit for a discharge from a publicly owned treatment works includes 

conditions to require the identification in terms of character and volume of pollutants of any 

significant source introducing pollutants subject to pretreatment standards under section 1317(b) 

of this title into such works and a program to assure compliance with such pretreatment 

standards by each such source, in addition to adequate notice to the permitting agency of

(A) new introductions into such works of pollutants from any source which would be a new 

source as defined in section 1316 of this title if such source were discharging pollutants,

(B) new introductions of pollutants into such works from a source which would be subject to 

section 1311 of this title if it were discharging such pollutants, or

(C) a substantial change in volume or character of pollutants being introduced into such works 

by a source introducing pollutants into such works at the time of issuance of the permit. Such 

notice shall include information on the quality and quantity of effluent to be introduced into such 

treatment works and any anticipated impact of such change in the quantity or quality of effluent 

to be discharged from such publicly owned treatment works; and

(9) To insure that any industrial user of any publicly owned treatment works will comply with 

sections 1284(b), 1317, and 1318 of this title.

(c) Suspension of Federal program upon submission of State program; withdrawal of approval of 

State program; return of State program to Administrator
(1) Not later than ninety days after the date on which a State has submitted a program (or 

revision thereof) pursuant to subsection (b) of this section, the Administrator shall suspend the 

issuance of permits under subsection (a) of this section as to those discharges subject to such 

program unless he determines that the State permit program does not meet the requirements of 

subsection (b) of this section or does not conform to the guidelines issued under section 

1314(i)(2) of this title. If the Administrator so determines, he shall notify the State of any 

revisions or modifications necessary to conform to such requirements or guidelines.

(2) Any State permit program under this section shall at all times be in accordance with this 

section and guidelines promulgated pursuant to section 1314(i)(2) of this title.

(3) Whenever the Administrator determines after public hearing that a State is not administering 

a program approved under this section in accordance with requirements of this section, he shall 

so notify the State and, if appropriate corrective action is not taken within a reasonable time, not 

to exceed ninety days, the Administrator shall withdraw approval of such program. The 

Administrator shall not withdraw approval of any such program unless he shall first have notified 

the State, and made public, in writing, the reasons for such withdrawal.

(4) Limitations on partial permit program returns and withdrawals. - A State may return to the 

Administrator administration, and the Administrator may withdraw under paragraph (3) of this 

subsection approval, of -

(A) a State partial permit program approved under subsection (n)(3) of this section only if the 

entire permit program being administered by the State department or agency at the time is 

returned or withdrawn; and

(B) a State partial permit program approved under subsection (n)(4) of this section only if an 

entire phased component of the permit program being administered by the State at the time is 

returned or withdrawn.

(d) Notification of Administrator

(1) Each State shall transmit to the Administrator a copy of each permit application received by 

such State and provide notice to the Administrator of every action related to the consideration of 

such permit application, including each permit proposed to be issued by such State.

(2) No permit shall issue

(A) if the Administrator within ninety days of the date of his notification under subsection (b)(5) 

of this section objects in writing to the issuance of such permit, or

(B) if the Administrator within ninety days of the date of transmittal of the proposed permit by 

the State objects in writing to the issuance of such permit as being outside the guidelines and 

requirements of this chapter. Whenever the Administrator objects to the issuance of a permit 

under this paragraph such written objection shall contain a statement of the reasons for such 
objection and the effluent limitations and conditions which such permit would include if it were 

issued by the Administrator.

(3) The Administrator may, as to any permit application, waive paragraph

(2) of this subsection.

(4) In any case where, after December 27, 1977, the Administrator, pursuant to paragraph (2) of 

this subsection, objects to the issuance of a permit, on request of the State, a public hearing shall 

be held by the Administrator on such objection. If the State does not resubmit such permit 

revised to meet such objection within 30 days after completion of the hearing, or, if no hearing is 

requested within 90 days after the date of such objection, the Administrator may issue the permit 

pursuant to subsection (a) of this section for such source in accordance with the guidelines and 

requirements of this chapter.

(e) Waiver of notification requirement

In accordance with guidelines promulgated pursuant to subsection (i)(2) of section 1314 of this 

title, the Administrator is authorized to waive the requirements of subsection (d) of this section at 

the time he approves a program pursuant to subsection (b) of this section for any category 

(including any class, type, or size within such category) of point sources within the State 

submitting such program.

(f) Point source categories

The Administrator shall promulgate regulations establishing categories of point sources which he 

determines shall not be subject to the requirements of subsection (d) of this section in any State 

with a program approved pursuant to subsection (b) of this section. The Administrator may 

distinguish among classes, types, and sizes within any category of point sources.

(g) Other regulations for safe transportation, handling, carriage, storage, and stowage of 

pollutants

Any permit issued under this section for the discharge of pollutants into the navigable waters 

from a vessel or other floating craft shall be subject to any applicable regulations promulgated by 

the Secretary of the department in which the Coast Guard is operating, establishing specifications 

for safe transportation, handling, carriage, storage, and stowage of pollutants.

(h) Violation of permit conditions; restriction or prohibition upon introduction of pollutant by 

source not previously utilizing treatment works

In the event any condition of a permit for discharges from a treatment works (as defined in 

section 1292 of this title) which is publicly owned is violated, a State with a program approved 

under subsection (b) of this section or the Administrator, where no State program is approved or 

where the Administrator determines pursuant to section 1319(a) of this title that a State with an 

approved program has not commenced appropriate enforcement action with respect to such 

permit, may proceed in a court of competent jurisdiction to restrict or prohibit the introduction of 

any pollutant into such treatment works by a source not utilizing such treatment works prior to 

the finding that such condition was violated.
(i) Federal enforcement not limited

Nothing in this section shall be construed to limit the authority of the Administrator to take 

action pursuant to section 1319 of this title.

(j) Public information

A copy of each permit application and each permit issued under this section shall be available to 

the public. Such permit application or permit, or portion thereof, shall further be available on 

request for the purpose of reproduction.

(k) Compliance with permits

Compliance with a permit issued pursuant to this section shall be deemed compliance, for 

purposes of sections 1319 and 1365 of this title, with sections 1311, 1312, 1316, 1317, and 1343 

of this title, except any standard imposed under section 1317 of this title for a toxic pollutant 

injurious to human health. Until December 31, 1974, in any case where a permit for discharge 

has been applied for pursuant to this section, but final administrative disposition of such 

application has not been made, such discharge shall not be a violation of

(1) section 1311, 1316, or 1342 of this title, or

(2) section 407 of this title, unless the Administrator or other plaintiff proves that final 

administrative disposition of such application has not been made because of the failure of the 

applicant to furnish information reasonably required or requested in order to process the 

application. For the 180-day period beginning on October 18, 1972, in the case of any point 

source discharging any pollutant or combination of pollutants immediately prior to such date 

which source is not subject to section 407 of this title, the discharge by such source shall not be a 

violation of this chapter if such a source applies for a permit for discharge pursuant to this 

section within such 180-day period.

(l) Limitation on permit requirement

(1) Agricultural return flows

The Administrator shall not require a permit under this section for discharges composed entirely 

of return flows from irrigated agriculture, nor shall the Administrator directly or indirectly, 

require any State to require such a permit.

(2) Stormwater runoff from oil, gas, and mining operations

The Administrator shall not require a permit under this section, nor shall the Administrator 

directly or indirectly require any State to require a permit, for discharges of stormwater runoff 

from mining operations or oil and gas exploration, production, processing, or treatment 

operations or transmission facilities, composed entirely of flows which are from conveyances or 

systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used 

for collecting and conveying precipitation runoff and which are not contaminated by contact 

with, or do not come into contact with, any overburden, raw material, intermediate products, 

finished product, byproduct, or waste products located on the site of such operations.
(m) Additional pretreatment of conventional pollutants not required To the extent a treatment 

works (as defined in section 1292 of this title) which is publicly owned is not meeting the 

requirements of a permit issued under this section for such treatment works as a result of 

inadequate design or operation of such treatment works, the Administrator, in issuing a permit 

under this section, shall not require pretreatment by a person introducing conventional pollutants 

identified pursuant to section 1314(a)(4) of this title into such treatment works other than 

pretreatment required to assure compliance with pretreatment standards under subsection (b)(8) 

of this section and section 1317(b)(1) of this title. Nothing in this subsection shall affect the 

Administrator's authority under sections 1317 and 1319 of this title, affect State and local 

authority under sections 1317(b)(4) and 1370 of this title, relieve such treatment works of its 

obligations to meet requirements established under this chapter, or otherwise preclude such 

works from pursuing whatever feasible options are available to meet its responsibility to comply 

with its permit under this section.

(n) Partial permit program

(1) State submission

The Governor of a State may submit under subsection (b) of this section a permit program for a 

portion of the discharges into the navigable waters in such State.

(2) Minimum coverage

A partial permit program under this subsection shall cover, at a minimum, administration of a 

major category of the discharges into the navigable waters of the State or a major component of 

the permit program required by subsection (b) of this section.

(3) Approval of major category partial permit programs

The Administrator may approve a partial permit program covering administration of a major 

category of discharges under this subsection if -

(A) such program represents a complete permit program and covers all of the discharges under 

the jurisdiction of a department or agency of the State; and

(B) the Administrator determines that the partial program represents a significant and identifiable 

part of the State program required by subsection (b) of this section.

(4) Approval of major component partial permit programs

The Administrator may approve under this subsection a partial and phased permit program 

covering administration of a major component (including discharge categories) of a State permit 

program required by subsection (b) of this section if -

(A) the Administrator determines that the partial program represents a significant and identifiable 

part of the State program required by subsection (b) of this section; and

(B) the State submits, and the Administrator approves, a plan for the State to assume 

administration by phases of the remainder of the State program required by subsection (b) of this 

section by a specified date not more than 5 years after submission of the partial program under 
this subsection and agrees to make all reasonable efforts to assume such administration by such 

date.

(o) Anti-backsliding

(1) General prohibition

In the case of effluent limitations established on the basis of subsection (a)(1)(B) of this section, 

a permit may not be renewed, reissued, or modified on the basis of effluent guidelines 

promulgated under section 1314(b) of this title subsequent to the original issuance of such 

permit, to contain effluent limitations which are less stringent than the comparable effluent 

limitations in the previous permit. In the case of effluent limitations established on the basis of 

section 1311(b)(1)(C) or section 1313(d) or (e) of this title, a permit may not be renewed, 

reissued, or modified to contain effluent limitations which are less stringent than the comparable 

effluent limitations in the previous permit except in compliance with section 1313(d)(4) of this 

title.

(2) Exceptions

A permit with respect to which paragraph (1) applies may be renewed, reissued, or modified to 

contain a less stringent effluent limitation applicable to a pollutant if -

(A) material and substantial alterations or additions to the permitted facility occurred after permit 

issuance which justify the application of a less stringent effluent limitation;

(B)

(i) information is available which was not available at the time of permit issuance (other than 

revised regulations, guidance, or test methods) and which would have justified the application of 

a less stringent effluent limitation at the time of permit issuance; or

(ii) the Administrator determines that technical mistakes or mistaken interpretations of law were 

made in issuing the permit under subsection (a)(1)(B) of this section;

(C) a less stringent effluent limitation is necessary because of events over which the permittee 

has no control and for which there is no reasonably available remedy;

(D) the permittee has received a permit modification under section 1311(c), 1311(g), 1311(h), 

1311(i), 1311(k), 1311(n), or 1326(a) of this title; or

(E) the permittee has installed the treatment facilities required to meet the effluent limitations in 

the previous permit and has properly operated and maintained the facilities but has nevertheless 

been unable to achieve the previous effluent limitations, in which case the limitations in the 

reviewed, reissued, or modified permit may reflect the level of pollutant control actually 

achieved (but shall not be less stringent than required by effluent guidelines in effect at the time 

of permit renewal, reissuance, or modification). Subparagraph (B) shall not apply to any revised 

waste load allocations or any alternative grounds for translating water quality standards into 

effluent limitations, except where the cumulative effect of such revised allocations results in a 
decrease in the amount of pollutants discharged into the concerned waters, and such revised 

allocations are not the result of a discharger eliminating or substantially reducing its discharge of 

pollutants due to complying with the requirements of this chapter or for reasons otherwise 

unrelated to water quality.

(3) Limitations

In no event may a permit with respect to which paragraph (1) applies be renewed, reissued, or 

modified to contain an effluent limitation which is less stringent than required by effluent 

guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may 

such a permit to discharge into waters be renewed, reissued, or modified to contain a less 

stringent effluent limitation if the implementation of such limitation would result in a violation of 

a water quality standard under section 1313 of this title applicable to such waters.

(p) Municipal and industrial stormwater discharges

(1) General rule

Prior to October 1, 1994, the Administrator or the State (in the case of a permit program 

approved under this section) shall not require a permit under this section for discharges 

composed entirely of stormwater.

(2) Exceptions

Paragraph (1) shall not apply with respect to the following stormwater discharges:

(A) A discharge with respect to which a permit has been issued under this section before 

February 4, 1987.

(B) A discharge associated with industrial activity.

(C) A discharge from a municipal separate storm sewer system serving a population of 250,000 

or more.

(D) A discharge from a municipal separate storm sewer system serving a population of 100,000 

or more but less than 250,000.

(E) A discharge for which the Administrator or the State, as the case may be, determines that the 

stormwater discharge contributes to a violation of a water quality standard or is a significant 

contributor of pollutants to waters of the United States.

(3) Permit requirements

(A) Industrial discharges

Permits for discharges associated with industrial activity shall meet all applicable provisions of 

this section and section 1311 of this title.

(B) Municipal discharge

Permits for discharges from municipal storm sewers -
(i) may be issued on a system- or jurisdiction-wide basis;

(ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm 

sewers; and

(iii) shall require controls to reduce the discharge of pollutants to the maximum extent 

practicable, including management practices, control techniques and system, design and 

engineering methods, and such other provisions as the Administrator or the State determines 

appropriate for the control of such pollutants.

(4) Permit application requirements

(A) Industrial and large municipal discharges

Not later than 2 years after February 4, 1987, the Administrator shall establish regulations setting 

forth the permit application requirements for stormwater discharges described in paragraphs 

(2)(B) and (2)(C). Applications for permits for such discharges shall be filed no later than 3 years 

after February 4, 1987. Not later than 4 years after February 4, 1987, the Administrator or the 

State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for 

compliance as expeditiously as practicable, but in no event later than 3 years after the date of 

issuance of such permit.

(B) Other municipal discharges

Not later than 4 years after February 4, 1987, the Administrator shall establish regulations setting 

forth the permit application requirements for stormwater discharges described in paragraph 

(2)(D). Applications for permits for such discharges shall be filed no later than 5 years after 

February 4, 1987. Not later than 6 years after February 4, 1987, the Administrator or the State, as 

the case may be, shall issue or deny each such permit. Any such permit shall provide for 

compliance as expeditiously as practicable, but in no event later than 3 years after the date of 

issuance of such permit.

(5) Studies

The Administrator, in consultation with the States, shall conduct a study for the purposes of -

(A) identifying those stormwater discharges or classes of stormwater discharges for which 

permits are not required pursuant to paragraphs (1) and (2) of this subsection;

(B) determining, to the maximum extent practicable, the nature and extent of pollutants in such 

discharges; and

(C) establishing procedures and methods to control stormwater discharges to the extent necessary 

to mitigate impacts on water quality.

Not later than October 1, 1988, the Administrator shall submit to Congress a report on the results 

of the study described in subparagraphs (A) and (B). Not later than October 1, 1989, the 

Administrator shall submit to Congress a report on the results of the study described in 

subparagraph (C).
(6) Regulations

Not later than October 1, 1993, the Administrator, in consultation with State and local officials, 

shall issue regulations (based on the results of the studies conducted under paragraph (5)) which 

designate stormwater discharges, other than those discharges described in paragraph (2), to be 

regulated to protect water quality and shall establish a comprehensive program to regulate such 

designated sources. The program shall, at a minimum,

(A) establish priorities,

(B) establish requirements for State stormwater management programs, and

(C) establish expeditious deadlines.

The program may include performance standards, guidelines, guidance, and management 

practices and treatment requirements, as appropriate.