40 C.F.R. § 125.11

Criteria

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(a) No NPDES permit shall be issued to an aquaculture project unless:

(1) The Director determines that the aquaculture project:

(i) Is intended by the project operator to produce a crop which has significant direct or indirect commercial value (or is intended to be operated for research into possible production of such a crop); and

(ii) Does not occupy a designated project area which is larger than can be economically operated for the crop under cultivation or than is necessary for research purposes.

(2) The applicant has demonstrated, to the satisfaction of the Director, that the use of the pollutant to be discharged to the aquaculture project will result in an increased harvest of organisms under culture over what would naturally occur in the area;

(3) The applicant has demonstrated, to the satisfaction of the Director, that if the species to be cultivated in the aquaculture project is not indigenous to the immediate geographical area, there will be minimal adverse effects on the flora and fauna indigenous to the area, and the total commercial value of the introduced species is at least equal to that of the displaced or affected indigenous flora and fauna;

(4) The Director determines that the crop will not have a significant potential for human health hazards resulting from its consumption;

(5) The Director determines that migration of pollutants from the designated project area to water outside of the aquaculture project will not cause or contribute to a violation of water quality standards or a violation of the applicable standards and limitations applicable to the supplier of the pollutant that would govern if the aquaculture project were itself a point source. The approval of an aquaculture project shall not result in the enlargement of a pre-existing mixing zone area beyond what had been designated by the State for the original discharge.

(b) No permit shall be issued for any aquaculture project in conflict with a plan or an amendment to a plan approved under section 208(b) of the Act.

(c) No permit shall be issued for any aquaculture project located in the territorial sea, the waters of the contiguous zone, or the oceans, except in conformity with guidelines issued under section 403(c) of the Act.

(d) Designated project areas shall not include a portion of a body of water large enough to expose a substantial portion of the indigenous biota to the conditions within the designated project area. For example, the designated project area shall not include the entire width of a watercourse, since all organisms indigenous to that watercourse might be subjected to discharges of pollutants that would, except for the provisions of section 318 of the Act, violate section 301 of the Act.

(e) Any modifications caused by the construction or creation of a reef, barrier or containment structure shall not unduly alter the tidal regimen of an estuary or interfere with migrations of unconfined aquatic species.

[Comment: Any modifications described in this paragraph which result in the discharge of dredged or fill material into navigable waters may be subject to the permit requirements of section 404 of the Act.]

(f) Any pollutants not required by or beneficial to the aquaculture crop shall not exceed applicable standards and limitations when entering the designated project area.

Notes of Decisions

Cited in 5 cases, 1974–1978 · leading case: United States v. Velsicol Chem. Corp., 438 F. Supp. 945 (W.D. Tenn. 1976).

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United States v. Velsicol Chem. Corp., 438 F. Supp. 945 (W.D. Tenn. 1976). “The Administrator’s duties in this regard are detailed in 40 C.F.R. 125.11(c): (c). In the period of time prior to the taking of necessary implementing actions relating to all applicable requirements under sections [1311, 1312, 1316, 1317, 1318, and 1343] of the Act, the…”

United States v. Rohm & Haas Co. & Rohm & Haas of Texas, Inc., 500 F.2d 167 (5th Cir. 1974). “131(d) (4) (1973) with 40 C.F.R. §§ 125.11 , 21 — .24, .42 (1973).”

State of Alabama Ex Rel. William J. Baxley, Attorney Gen. v. Env't Prot. Agency & Russell E. Train, Adm'r, 557 F.2d 1101 (5th Cir. 1977). “Army Corps of Engineers Refuse Act Permit Program, the EPA rules governing the National Pollution Discharge Elimination System do not require that the permit include limitations embodied in the resolution of a civil action under the Refuse Act.”

United States v. Cutter Labs., Inc., 413 F. Supp. 1295 (E.D. Tenn. 1976). “Notably, the Administrator’s duties in this regard are found under regulation 40 C.F.R. § 125.11 (c), which reads in part: “(c) In the period of time prior to the taking of necessary implementing actions relating to all applicable requirements under sections [1311, 1312, 1316,…”

Repub. Steel Corp. v. Costle, 581 F.2d 1228 (6th Cir. 1978). “1976); 40 C.F.R. § 125.11 (c) (promulgated 5-22-73).”

— 40 C.F.R. § 125.11(c) — 1 case

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