C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER D—WATER PROGRAMS › PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM › Subpart A—Definitions and General Program Requirements

40 C.F.R. § 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 the CWA and that certification has not been obtained or waived;

(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; 88 FR 66666, Sept. 27, 2023]
Notes of Decisions
Cited in 62 cases (10 in the last 5 years), 1981–2026 · leading case: In Re the Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d 502 (Minn. 2007).
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In Re the Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d 502 (Minn. 2007). · cites it 152× “The MPCA found that the proposed plant—when operating at capacity—would increase phosphorus discharge to the North Fork of the Crow River by approximately 2,200 pounds per year over that which is discharged by the Cities' existing facilities, but the MPCA concluded that, under…”
City of Waco v. Texas Nat. Resource Conservation Comm'n, 83 S.W.3d 169 (Tex. App. 2002). · cites it 10× “538 (1999) (prohibiting permit that would violate 40 C.F.R. § 122.4 ). The City sought a declaration that until the TNRCC promulgates legally binding regulations to implement TMDLs for nutrients and pathogens in the two Bosque Segments that contain load allocations and other…”
Assateague Coastkeeper v. Maryland Dep't of the Env't, 28 A.3d 178 (Md. Ct. Spec. App. 2011). · cites it 16× “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…”
In Re the Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 702 N.W.2d 768 (Minn. Ct. App. 2005). · cites it 33× “ISSUE Does a discharge of phosphorus from a new source contribute to the impairment of Section 303(d) waters, in violation of 40 C.F.R. § 122.4 (i) (2004), when that discharge contains an increase in phosphorus that is offset by reductions from other sources? ANALYSIS Appellate…”
Louisiana v. Jt. Pipeline Grp., 373 S.W.3d 292 (Ark. 2010). · cites it 11× “§ 1342 (b)(3) & (5), as well as 40 C.F.R. § 122.4 and “the basic tenets of administrative procedure.”
Nat. Resources Def. Council v. United States Env't Prot. Agency, 808 F.3d 556 (2d Cir. 2015). · cites it 5× “§§ 1311 (b)(1)(C), 1313(a) 1342(a)(1); 40 C.F.R. § 122.4 (d). 1. National Pollutant Discharge Elimination System Permits An entity seeking to discharge a pollutant is required to obtain and comply with a permit that limits the amounts and kinds of pollutants being discharged.”
Arkansas v. Oklahoma, 503 U.S. 91 (1992). · cites it 2× “” 10 40 CFR § 122.4 (d) (1991); see also 38 Fed.”
Puget Soundkeeper All. v. Dep't of Ecology, 424 P.3d 1173 (Wash. 2018). · cites it 3× “The administrative code identifies the numeric water quality standards for toxic substances and limits the concentration of PCBs to 0.”
Puget Soundkeeper All. v. Pollution Control Hearings Bd., 356 P.3d 753 (Wash. Ct. App. 2015). · cites it 3× “40 C.F.R. § 122.4 ; WAC 173-220-130(l)(b); Defs.”
City of Taunton v. U.S. Env't Prot., 895 F.3d 120 (1st Cir. 2018). · cites it 2× “§§ 1311(b)(1)(C), 1341(a)(2) ; 40 C.F.R. §§ 122.4 (d), 122.44(d)(4). Giving effect to this requirement, EPA regulations provide that NPDES permits "must control all pollutants" that the EPA "determines are or may be discharged at a level which will cause, have the reasonable…”
Dept. of Env. v. Assateague Coastal Trust, 299 A.3d 619 (Md. 2023). · cites it 2× “Because this represents a net reduction, it is not prohibited by 40 C.F.R. § 122.4 (i). As the TMDLs are further implemented, additional reductions may be required of the CAFO and nonpoint sources to fully achieve the TMDL.”
Borough of Bedford v. Commonwealth, Dep't of Env't Prot., 972 A.2d 53 (Pa. Commw. Ct. 2009). · cites it 2× “The federal regulation at 40 C.F.R. § 122.4 (d) (2008) provides that no NPDES permit may be issued "[w]hen the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States.”
Show all 62 citing cases →
— 40 C.F.R. § 122.4(d) — 1 case
Louisiana v. Jt. Pipeline Grp., 373 S.W.3d 292 (Ark. 2010). “§ 1342 (b)(3) & (5), as well as 40 C.F.R. § 122.4 and “the basic tenets of administrative procedure.”
— 40 C.F.R. § 122.4(f) — 2 cases
In Re the Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d 502 (Minn. 2007). “The MPCA found that the proposed plant—when operating at capacity—would increase phosphorus discharge to the North Fork of the Crow River by approximately 2,200 pounds per year over that which is discharged by the Cities' existing facilities, but the MPCA concluded that, under…”
Assateague Coastkeeper v. Maryland Dep't of the Env't, 28 A.3d 178 (Md. Ct. Spec. App. 2011). “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…”
— 40 C.F.R. § 122.4(i) — 2 cases
In Re the Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d 502 (Minn. 2007). “The MPCA found that the proposed plant—when operating at capacity—would increase phosphorus discharge to the North Fork of the Crow River by approximately 2,200 pounds per year over that which is discharged by the Cities' existing facilities, but the MPCA concluded that, under…”
Assateague Coastkeeper v. Maryland Dep't of the Env't, 28 A.3d 178 (Md. Ct. Spec. App. 2011). “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…”
— 40 C.F.R. § 122.4(n)(1) — 1 case
Sierra Club of Mississippi, Inc. v. City of Jackson, 136 F. Supp. 2d 620 (S.D. Miss. 2001).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.