40 C.F.R. § 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.

(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]

Notes of Decisions

Cited in 5 cases (1 in the last 5 years), 1987–2024 · leading case: Int'l Paper Co. v. Ouellette.

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Int'l Paper Co. v. Ouellette (1987). · cites it 2× “" 40 CFR § 122.5 (b) (1986). The EPA did not interpret the Act to modify state or local law: "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.”

Pepperell Assocs. v. United States Env't Prot. Agency (1st Cir. 2001). “Even if the EAB is generally correct that this was not a new facility but a modification, it says, the change does not “materially affect[ ] the facility’s potential for discharge of oil into or upon the navigable waters of the United States,” see 40 C.F.R. § 122.5 (a), and…”

Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc. (E.D.N.C. 2014). “See 40 C.F.R. § 122.5 (listing exceptions to the permit shield).”

Ctr. for Env't Law & Policy v. United States Fish & Wildlife Serv. (E.D. Wash. 2017). · cites it 2× “Section 558 (c)) and 40 CFR Part 122.5. The terms and conditions of that permit remain in effect indefinitely until a decision is made to take formal action on permit reissuance based on the new NPDES permit application which you have submitted.”

Wagner v. Scheirer (D. Minn. 2024). “” 40 C.F.R. § 122.5 (b). The regulation clarifies that it applies to state programs.”

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