40 C.F.R. § 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 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) [Reserved]

(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; 78 FR 38594, June 27, 2013]

Notes of Decisions

Cited in 63 cases (9 in the last 5 years), 1980–2025 · leading case: Nw. Env't Advocates v. United States Env't Prot. Agency, 537 F.3d 1006 (9th Cir. 2008).

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Nw. Env't Advocates v. United States Env't Prot. Agency, 537 F.3d 1006 (9th Cir. 2008). · cites it 20× “That regulation, 40 C.F.R. § 122.3 (a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from…”

Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009). · cites it 9× “” 40 CFR §122.3 . The agencies have interpreted this regulation to essentially restate §402’s text, ibid.”

Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Env't Prot. Agency, 846 F.3d 492 (2d Cir. 2017). · cites it 5× “A transfer may be accomplished, for example, through artificial tunnels and channels, or natural streams and water bodies; 'and through active pumping or passive direction. There are thousands of water transfers currently in place in the United States, including at least sixteen…”

Lake Carriers' Ass'n v. Env't Prot. Agency, 652 F.3d 1 (D.C. Cir. 2011). · cites it 3× “” 40 C.F.R. § 122.3 (a). The regulation was in force for more than thirty years.”

Nat'l Cotton Council of Am. v. United States Env't Prot. Agency, 553 F.3d 927 (6th Cir. 2009). · cites it 4× “§§ 1311(a), 1342; 40 C.F.R. § 122.3 . Thus, if a party obtains a permit, the discharge of pollutants in accordance with that permit is not unlawful.”

Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Env't Prot. Agency, 8 F. Supp. 3d 500 (S.D.N.Y. 2014). · cites it 13× “” 40 C.F.R. § 122.3 (i). Before the Court are multiple motions and cross-motions for summary judgment challenging or defending this regulation as promulgated under the Clean Water Act (“CWA”), 33 U.”

Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Env't Prot. Agency, 630 F. Supp. 2d 295 (S.D.N.Y. 2009). · cites it 3× ““Environmental Plaintiffs”) and Plaintiffs States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, as well as the Government of the Province of Manitoba, Canada (collectively, “State Plaintiffs”), seek judicial review of the…”

City of Milwaukee v. Illinois, 451 U.S. 304 (1981). · cites it 2× “See 40 CFR § 122.3 , p. 70 (1980). In the absence of technology-based treatment requirements for combined sewer overflows, the Administrator mandates an individualized analysis by each system that seeks federal assistance.”

States of New York, Connecticut, Delaware, Illinois v. United States Env't Prot. Agency, 699 F.3d 1280 (11th Cir. 2012). · cites it 4× “See 40 C.F.R. § 122.3 . In 2002, the Friends of the Everglades and the Fishermen Against the Destruction of the Environment sought an injunction to force the South Florida Water Management District to obtain a permit to transfer water from the polluted canals of the Everglades…”

Saint John's Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054 (9th Cir. 2009). · cites it 2× “This guidance was incorporated into a formal regulation providing that mosquito abatement programs that comply with the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") do not result in the discharge of pollutants under the CWA and therefore do not require a NPDES…”

Peconic Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d 180 (2d Cir. 2010). · cites it 2× “13, 2003), and then in a Final Rule, 40 C.F.R. § 122.3 (h). The district court found that the County’s application of Scourge and Anvil fully conformed with the FIFRA labeling.”

Nat. Resources Def. Council v. United States Env't Prot. Agency, 808 F.3d 556 (2d Cir. 2015). · cites it 2× “32,854, 32,902 (June 7, 1979) (codified at 40 C.F.R. § 122.3 (a)). This exemption included ballast water discharges.”

Show all 63 citing cases →

— 40 C.F.R. § 122.3(a) — 4 cases

Lake Carriers' Ass'n v. Env't Prot. Agency, 652 F.3d 1 (D.C. Cir. 2011). “” 40 C.F.R. § 122.3 (a). The regulation was in force for more than thirty years.”

Nw. Env't Advocates v. United States Env't Prot. Agency, 537 F.3d 1006 (9th Cir. 2008). “That regulation, 40 C.F.R. § 122.3 (a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from…”

Nw. Env't Advocates Ctr. for Marine Conservation San Francisco Baykeeper v. U.S. Env't Prot. Agency, 340 F.3d 853 (9th Cir. 2003).

Nw. Env v. Epa (9th Cir. 2008).

— 40 C.F.R. § 122.3(i) — 1 case

Na Kia'i Kai v. Nakatani (D. Haw. 2019).

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