U.S. Code of Federal Regulations
Regulations most recently checked for updates: Jun 08, 2023
(a) All State Programs under this part must have legal authority to implement each of the following provisions and must be administered in conformance with each, except that States are not precluded from omitting or modifying any provisions to impose more stringent requirements:
(1) § 122.4—(Prohibitions):
(2) § 122.5(a) and (b)—(Effect of permit);
(3) § 122.7(b) and (c)—(Confidential information);
(4) § 122.21 (a)-(b), (c)(2), (e)-(k), (m)-(p), (q), and (r)—(Application for a permit);
(5) § 122.22—(Signatories);
(6) § 122.23—(Concentrated animal feeding operations);
(7) § 122.24—(Concentrated aquatic animal production facilities);
(8) § 122.25—(Aquaculture projects);
(9) § 122.26—(Storm water discharges);
(10) § 122.27—(Silviculture);
(11) § 122.28—(General permits), Provided that States which do not seek to implement the general permit program under § 122.28 need not do so.
(12) § 122.41 (a)(1) and (b) through (n)—(Applicable permit conditions) (Indian Tribes can satisfy enforcement authority requirements under § 123.34);
(13) § 122.42—(Conditions applicable to specified categories of permits);
(14) § 122.43—(Establishing permit conditions);
(15) § 122.44—(Establishing NPDES permit conditions);
(16) § 122.45—(Calculating permit conditions);
(17) § 122.46—(Duration);
(18) § 122.47(a)—(Schedules of compliance);
(19) § 122.48—(Monitoring requirements);
(20) § 122.50—(Disposal into wells);
(21) § 122.61—(Permit transfer);
(22) § 122.62—(Permit modification);
(23) § 122.64—(Permit termination);
(24) § 124.3(a)—(Application for a permit);
(25) § 124.5 (a), (c), (d), and (f)—(Modification of permits);
(26) § 124.6 (a), (c), (d), and (e)—(Draft permit);
(27) § 124.8—(Fact sheets);
(28) § 124.10 (a)(1)(ii), (a)(1)(iii), (a)(1)(v), (b), (c), (d), and (e)—(Public notice);
(29) § 124.11—(Public comments and requests for hearings);
(30) § 124.12(a)—(Public hearings); and
(31) § 124.17 (a) and (c)—(Response to comments);
(32) § 124.56—(Fact sheets);
(33) § 124.57(a)—(Public notice);
(34) § 124.59—(Comments from government agencies);
(35) § 124.62—(Decision on variances);
(36) Subparts A, B, D, H, I, J, and N of part 125 of this chapter;
(37) 40 CFR parts 129, 133, and subchapter N;
(38) For a Great Lakes State or Tribe (as defined in 40 CFR 132.2), 40 CFR part 132 (NPDES permitting implementation procedures only);
(39) § 122.30 (What are the objectives of the storm water regulations for small MS4s?);
(40) § 122.31 (For Indian Tribes only) (As a Tribe, what is my role under the NPDES storm water program?);
(41) § 122.32 (As an operator of a small MS4, am I regulated under the NPDES storm water program?);
(42) § 122.33 (If I am an operator of a regulated small MS4, how do I apply for an NPDES permit? When do I have to apply?);
(43) § 122.34 (As an operator of a regulated small MS4, what will my NPDES MS4 storm water permit require?);
(44) § 122.35 (As an operator of a regulated small MS4, may I share the responsibility to implement the minimum control measures with other entities?);
(45) § 122.36 (As an operator of a regulated small MS4, what happens if I don't comply with the application or permit requirements in §§ 122.33 through 122.35?); and
(46) 40 CFR part 3 (Cross-Media Electronic Reporting Regulation) and 40 CFR part 127 (NPDES Electronic Reporting Requirements).
(47) For a Great Lakes State, § 122.38.
Except for paragraph (a)(46) of this section, States need not implement provisions identical to the above listed provisions. Implemented provisions must, however, establish requirements at least as stringent as the corresponding listed provisions. While States may impose more stringent requirements, they may not make one requirement more lenient as a tradeoff for making another requirement more stringent; for example, by requiring that public hearings be held prior to issuing any permit while reducing the amount of advance notice of such a hearing.
State programs may, if they have adequate legal authority, implement any of the provisions of parts 122 and 124. See, for example, §§ 122.5(d) (continuation of permits) and 124.4 (consolidation of permit processing) of this chapter.
For example, a State may impose more stringent requirements in an NPDES program by omitting the upset provision of § 122.41 of this chapter or by requiring more prompt notice of an upset.
(b) State NPDES programs shall have an approved continuing planning process under 40 CFR 130.5 and shall assure that the approved planning process is at all times consistent with the CWA.
(c) State NPDES programs shall ensure that any board or body which approves all or portions of permits shall not include as a member any person who receives, or has during the previous 2 years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit.
(1) For the purposes of this paragraph:
(i) Board or body includes any individual, including the Director, who has or shares authority to approve all or portions of permits either in the first instance, as modified or reissued, or on appeal.
(ii) Significant portion of income means 10 percent or more of gross personal income for a calendar year, except that it means 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving that portion under retirement, pension, or similar arrangement.
(iii) Permit holders or applicants for a permit does not include any department or agency of a State government, such as a Department of Parks or a Department of Fish and Wildlife.
(iv) Income includes retirement benefits, consultant fees, and stock dividends.
(2) For the purposes of paragraph (c) of this section, income is not received “directly or indirectly from permit holders or applicants for a permit” when it is derived from mutual fund payments, or from other diversified investments for which the recipient does not know the identity of the primary sources of income.