# Petition for Writ of Certiorari — PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0401%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 511 U.S. 700 ## Text IN THE Supreme Court of the Huitep States OCTOBER TERM, 1992 PUD No. 1 oF JEFFERSON COUNTY AND THE CITY OF TACOMA, Petitioners, V. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, DEPARTMENT OF FISHERIES AND DEPARTMENT OF WILDLIFE Petition for a Writ of Certiorari to the Supreme Court of the State of Washington PETITION FOR A WRIT OF CERTIORARI ALBERT R. MALANCA HOWARD E. SHAPIRO KENNETH G. KIEFFER Counsel of Record GORDON, THOMAS, MICHAEL A, SWIGER HONEYWELL, MALANCA, GaRY D. BACHMAN PETERSON & DAHEIM VAN NEss, FELDMAN & CURTIS 2200 First Interstate Plaza A Professional Corporation 1201 Pacific Avenue 1050 Thomas Jefferson St., N.W. Tacoma, WA 98402 Seventh Floor (206) 572-5050 Washington, D.C. 20007 WILLIAM J. BARKER (202) 298-1800 MARK L. BUBENIK Attorneys for Petitioners 3628 South 35th Street PUD No. 1 of Jefferson P.O. Box 11007 County and the City of Tacoma, WA 98411 Tacoma (206) 593-8218 June 1, 1993 WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001 QUESTIONS PRESENTED 1. Whether the State of Washington, Department of Ecology, exceeded its authority under § 401 of the Clean Water Act (“CWA”), by conditioning a water quality certificate for a proposed hydroelectric project subject to the Federal Power Act (“FPA”) on instream flows for fish habitat that are concededly in excess of requirements necessary for the protection of water quality? 2. Whether Congress intended § 401 of the CWA to repeal the FPA’s reservation to the Federal Energy Regulatory Commission of comprehensive responsibility for determining in the FPA licensing process all relevant fish and wildlife, and other environmental conditions ex- cept those contained in state-issued water quality certifi- cates pertaining to the abatement and control of the dis- charge of pollutants? (i) TABLE OF CONTENTS QUESTIONS PRESENTED ...00..........-ccccccccccocseceeeeeseeeens STII sccrnisterccccenennssenessnsnessevnscsoescessasvensevseuses crc enecnrtnennneensennsccnsetansenensessecssavessesee a EEE SEE IESE ED A. Statutory and Regulatory Background ................ 1. The Federal Power Act 2000000000000... 2. The Clean Water Act ...................0...0.0000.000..0.... a. The § 401 Certification Requirement........ b. The EPA’s Role in Establishing Water Quality Standards for § 401 Certifica- ST c. Washington’s Requirements Reineeten Water Quality Standards and Stream ESE B. The Elkhorn Hydroelectric Project ........ Se a 1. Administrative Action —.....................0-0........... 2. Judicial Proceedings .......0..........cccccccceceeeceee a. Superior Court .........................::c0000.00.... ae b. Washington Supreme Court ................. REASONS FOR GRANTING THE PETITION .......... I. THIS COURT SHOULD RESOLVE THE IM- PORTANT FEDERAL QUESTION CON- CERNING THE SCOPE OF A STATE'S CERTIFICATION AUTHORITY UNDER § 401 OF THE CLEAN WATER ACT ............ . (iii) crv wo @ 10 10 11 11 12 13 13 iv TABLE OF CONTENTS—Continued Il. STREAMFLOW QUANTITIES FOR FISH HABITAT ARE NOT AUTHORIZED UNDER § 401 WATER QUALITY STANDARDS .......... III. SECTION 401(d)’s PROVISION FOR CONDI- TIONING WATER QUALITY CERTIFI- CATES ON “ANY OTHER APPROPRIATE REQUIREMENT OF STATE LAW” AU- THORIZES ONLY STREAMFLOW CONDI- TIONS APPROPRIATE TO THE WATER QUALITY LIMITATIONS AND STANDARDS ENUMERATED IN § 401 200s IV. WASHINGTON’S EXPANSIVE READING OF §401 WOULD SUBVERT THE FPA’S COMPREHENSIVE LICENSING SCHEME... CONCLUSION ......0......... saseastaneietens iamnagmntniaies snes Page 18 27 30 v TABLE OF AUTHORITIES CASES Page Arcadia v. Ohio Power Co., 498 U.S. 73, 111 S. Ct. I 24 Arnold Irrig. Dist. v. Department of Envtl. Qual- ity, 79 Or. App. 136, 717 P.2d 1274, review de- nied, 301 Or. 765 (1986) . 26 Bangor Hydro-Electrie Co. v. ~ Board ‘of ‘Envt'l. Protection, 595 A.2d 438 (Me. 1991) —............... 22 California v. FERC, 877 F.2d 743 (9th Cir.) affirmed, 495 U.S. 490, 110 S.Ct. 2024 (1990). passim City of Tacoma v. Taxpayers of Tacoma, 357 U.S. A fa ee 29 Cleveland v. United States, 329 U.S. 14 ( 1946) . 24 deRham v. Diamond, 295 N.E.2d 763 (N.Y. 1973). 17 EPA v. California, 426 U.S. 200 (1976) ..... ..... 19, 25 Federal Maritime Comm'n v. Seatrain Lines, Inc., RSENS Mem eres aera mee eae 24 First lowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152 (1946) . me FPC v. Oregon, 349 US. 435 (1955) biateet ccaiidiialaiies 4,29 Georgia Pacific Corp. and Simpson Paper (Ver- mont) Co. Inc., Vt. Sup. Ct. No. 91-530, Sep- I eas 16 Hughey v. United States, 495 USS. 411, 110 S.Ct. IE Ee Re er eee 24 International Paper Co. v. Ouellette, 479 U.S. 481 SCS eee ae ee ee “27 Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991). 14 Morton v. Mancari, 417 U.S. 525 (1974)... ae! 28 New England Power Co. v. New Hampshire, 455 U.S. 331 (1982) . Niagara Mohawk Power Corp. 1 v. . New York State Dept. of Env. Cons., 187 A.D. 2d 7, 592 N.Y.S.2d FB FS EE 17, 22 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm., 461 U.S. 190 (1983) _.... 29 Pennsylvania Dept. of Envtl. Resources v. City of Harrisburg, 578 A.2d 563 (Pa. 1990) 17 3 vi TABLE OF AUTHORITIES—Continued Page In re Power Auth. v. Williams, 457 N.E. 2d 726 I I 17 Proffitt v. Rohm & Haas, 850 F.2d 1007 (3rd Cir. 1988) _........ oe ata Aad Se i Ie nn SE 14 Roosevelt Campobello Int'l. Park Comm’ nv. EPA, 684 F.2d 1041 (1st Cir. 1982) 000. 14 Simpson Paper (Vermont) Co. v. Department of Envtl. Control, No. 92-1012 00000 3 Summit Hydropower v. Commissioner of Envtl. Protection, CV91-050-26-43, 1992 Conn. Super. LEXIS 2177, 1992 WL 175241 (Conn. Super. FE ll ee 17 United States v. Marathon Dev. Corp., 867 F.2d ff SE 14 Watt v. Alaska, 451 U.S. 259 (1981) 000000... 28 ADMINISTRATIVE DECISIONS Carez Hydro, 52 FERC © 61,216 (1990) 6,17 Central Main Power Co., 52 FERC ‘ 61,033 EL Si i eA SN ADE SERENE ae 6, 14, 16 Rock Creek Ltd. Partnership, 38 FERC ‘ 61,240 rehearing denied, 41 FERC ‘ 61,198 (1987)... 11 Town of Summersville, 60 FERC © 61,291 (1992) reh’g denied, 63 FERC { 61,087 (1993) .......... 6,17 STATUTES Clean Water Act of 1977, P.L. 95-217, § 64, 91 I a 25 Water Quality Improvement Act of 1970, P.L. 91- 224, §21(b), 84 Stat. 108 20 24 Water Pollution Control Act Amendments of 1972, P.L. 92-500, 86 Stat. 816 0. 25 Natural Gas Act, 15 U.S.C. §§ 717 et seq. (1988). 14 Federal Power Act, 16 U.S.C. §§ 791-828 (1988) § 4(e), 16 U.S.C. § 797(e) 8,4 §10(a) (1),16 U.S.C. § 808(a) (1)... aos 4 § 10(j), 16 U.S.C. § 803(j) 0. ...5, 15, 29 § 10(j) (2), 16 U.S.C. § 808(j) (2) 29 vii TABLE OF AUTHORITIES—Continued EE § 15(a) (2)-(3), 16 U.S.C. § 808(a) (2)-(3) .. § 28(b), 16 U.S.C. § B17 0.2... nc ecceceeeceeeeeeee es EE Clean Water Act (“CWA”), 33 U.S.C. § 1251-2623 (1988) > 8 0 fC) aa § 101 (a), 38 U.S.C. § 1251 (a) ............................ § 101(g), 33 U.S.C. 1251(g) ................. eas § 102(b) (6), 33 U.S.C. § 1252(b) (6) .............. CC § 301(b) (1) (C), 33 U.S.C. § 1311(b) (1) (C). A xy ON § 303 (c) (2), 33 U.S.C. § 1313(c) (2) ................ § 303(c) (2) (A), 33 U.S.C. § 1313(c) (2) (A)... I, TI ns cnccsiensnsenenenocnnnnenneel 5 dk ce ft 5 aaa § 401 (a), 33 U.S.C. § 1341 (a) ........ BBA LE § 401(a) (1),33 U.S.C. § 1341(a) (1) ...... § 401(d), 33 U.S.C. § 1841 (d) 00... I I vinrincnssncsnsenccsececercancssecneon § 502(6), 33 U.S.C. § 1862(6) 0. sl § §02(12), 33 U.S.C. § 13862(12) .... on § §02(16), 33 U.S.C. § 1862(16) _..................... § §502(19), 33 U.S.C. § 1362(19).~....................... Lk en REE ee Wash. Rev. Code (“RCW”) RCW 4.94.20 ........ RCW 35.9% .050 _.... RCW 35.92.280-310 = | RCW’ 90.22.010 .......... ebenininniiensintnten recmnesiiinaniiaed : 2.) | EE nenne RCW 90.54. "20(3) (a) . Washingtu.. Administrative Code ( “WAC”) WAC § 173-201 ‘a ) aa WA © PTB GI]... ..200-ccceccccececesccccccrscceseccosesee passim 7,18 viii ix TABLE OF AUTHORITIES—-Continued TABLE OF AUTHORITIES—Continued Page Page WAC § 178-202-046 once eeeeceeceeeeeeeeeeeeeeeeees 8 Conf No. 830, 95th Cong., Ist Sess. at WAC § 173-201-045(1) (a) and (b) (iii)... 8 wy > yraahematensedoentnnts wiheetaecalee 26 WAC § 173-201-045 (1) (0) o..----occceeosereree 8 Washington Pollution Control Hearings Board, WAC § 173-201-080 (82) oe 8 Transcript, December 17, 1987 p. 72-78 .......... 15 REGULATIONS S. Conf. Rep. No. 1236, 92nd Cong., 2d Sess. at ls | TY aes secicesidladies 5 138 (1972) aneananereamapreerepeanae--=-eragiaaaar “td CiaaT GEE 25 18 CFR § 4.38(a) .................. Breen aan 9 Special Supplement 1992 Edition, Hydrowire, I fe | 5 BOG, BARE BIT .nncc.cecceveccesscecescscecscescccccssocnsosess 4, 16 18 CFR §§ 380.1-380.14 ee Si Coie ee | 5 52 Fed. Reg. 23,340, 23,342 ..................... yh Naataenleaia’ 9 18 CFR § 380.3(c) (1) ...... Wt’ DeLee oe te 5 40 CFR § 181.2 0000. ne AiR - PL ee —— > 40 CFR § 181.3(b) 000. RPE E ER ess OPE ee 8,19 a a itemise 19 ETRE an nena Ph ARTETA 7 7 40 CFR § 181.6(a) .............. eeSRc 6. £8 Ba ae iE oc os 7,19 SA ea ecient 19 FE EER a A a ® ECE Ce eS ao 19 TE a Er 19 RET REE RN SEE ee eee 19 MISCELLANEOUS Electronic Consumers Protection Act, Pub. L. No. 99-495, 100 Stat. 1243 (1986) 20000. 29 Electric Power Research Institute, Lessons Learned in Hydro Relicensing (1984-1989): Trends, Costs, and Recommendations 2-1 (May RRR nna Et CRY SERS Sea ee | ee Oe le. 87a (B) for publicly owned treatement works in existence on July 1, 1977, or approved pursuant to section 1283 of this title prior to June 30, 1974 (for which construction must be com- pleted within four years of approval), effluent limitations based upon secondary treatment as defined by the Administrator pursuant to sec- tion 1314(d)(1) of this title; or, (C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, estab- lished pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regula- tion, or required to implement any applicable water quality standard established pursuant to this chapter. (2)(A) for pollutants identified in subpara- graphs (C), (D), and (F) of this paragraph, effluent limitations for categories and classes of point sources, other than publicly owned treat- ment works, which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pur- suant to section 1314(b)(2) of this title, which such effluent limitations shall require the elimi- nation of discharges of all pollutants if the Administrator finds, on the basis of information available to him (including information devel- oped pursuant to section 1325 of this title), that such elimination is technologically and eco- nomically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pur- suant to section 1314(b)(2) of this title, or (11) in the case of the introduction of a pollutant into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, shall require compliance with any applicable pretreatment requirements and any other requirement under section 1317 of this title; (B) Repealed. Pub. L. 97-117, § 21(b), Dec. 29, 1981, 95 Stat. 1632. (C) with respect to all toxic pollutants re- ferred to in table 1 of the Committee Print Numbered 95-30 of the Committee on Public Works and Transportation of the House of Rep- resentatives compliance with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 1314 (b) of this title, and in no case later than March 31, 1989; (D) for all toxic pollutants listed under para- graph (1) of subsection (a) of section 1317 of this title which are not referred to in subpara- graph (C) of this paragraph compliance with effluent limitations in accordance with subpara- graph (A) of this paragraph as expeditiously as practicable, but in no case later than three years after the date such limitations are promulgated under section 1314(b) of this title, and in no case later than March 31, 1989; (E) as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 1314 89a (b) of this title, and in no case later than March 31, 1989, compliance with effluent limi- tations for categories and classes of point sources, other than publicly owned treatment works, which in the case of pollutants identified pursuant to section 1314(a)(4) of this title shall require application of the best conven- tional pollutant control technology as deter- mined in accordance with regulations issued by the Administrator pursuant to section 1314(b) (4) of this title; and (F) for all pollutants (other than those sub- ject to subparagraphs (C), (D), or (E) of this paragraph) compliance with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as practicable but in no case later than 3 years after the date such limitations are established, and in no case later than March 31, 1989. (3)(A) for effluent limitations under para- graph (1)(A)(i) of this subsection promul- gated after January 1, 1982, and requiring a level of control substantially greater or based on fundamentally different control technology than under permits for an industrial category issued before such date, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 1314(b) of this title, and in no case later than March 31, 1989; and (B) for any effluent limitation in accordance with paragraph (1)(A)(i), 2(A)(i), or (2) (E) of this subsection established only on the basis of section 1342(a)(1) of this title in a permit issued after February 4, 1987, compli- ance as expeditiously as practicable but in no 90a case later than three years after the date such limitations are established, and in no case later than March 31, 1989. (c) Modification of timetable The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. (d) Review and revision of effluent limitations Any effluent limitation required by paragraph (2) of subsection (b) of this section shall be reviewed at least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph. (e) All point discharge source application of effluent limitations Effluent limitations established pursuant to this section or section 1312 of this title shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this chapter. (f) Megality of discharge of radiological, chemical or biological warfare agents, high-level radio- active waste, or medical waste Notwithstanding any other provisions of this chap- ter it shall be unlawful to discharge any radiological, chemical, or biological warfare agent, any high-level ee a OY ee ae 9la radioactive waste, or any medical waste, into the navigable waters. (g) Modifications for certain nonconventional pol- lutants (1) General authority The Administrator, with the concurrence of the State, may modify the requirements of sub- section (b)(2)(A) of this section with respect to the discharge from any point source of am- monia, chlorine, color, iron, and total phenols (4AAP) (when determined by the Administra- tor to be a pollutant covered by subsection (b) (2)(F) of this section) and any other pollutant which the Administrator lists under paragraph (4) of this subsection. (2) Requirements for granting modifications A modification under this subsection shall be granted only upon a showing by the owner or operator of a point source satisfactory to the Administrator that— (A) such modified requirements will re- sult at a minimum in compliance with the requirements of subsection (b)(1)(A) or (C) of this section, whichever is applicable; (B) such modified requirements will not result in any additional requirements on any other point or nonpoint source; and (C) such modification will not interfere with the attainment or maintenance of that water quality which shall assure protection of public water supplies, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities, in and on the water 92a and such modification will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumulation, persistency in the environment, acute tox- icity, chronic toxicity (including carcino- genicity, mutagenicity, or teratogencity), or synergistic propensities. (3) Limitation on authority to apply for subsec- tion (c) modification If an owner or operator of a point source applies for a modification under this subsection with respect to the discharge of any pollutant, such owner or operator shall be eligible to apply for modification under subsection (c) of this section with respect to such pollutant only dur- ing the same time period as he is eligible to apply for a modification under this subsection. (4) Procedures for listing additional pollutants (A) General authority Upon petition of any person, the Ad- ministrator may add any pollutant to the list of pollutants for which modification un- der this section is authorized (except for pollutants identified pursuant to section 1314(a)(4) of this title, toxic pollutants subject to section 1317(a) of this title, and the thermal component of discharges) in accordance with the provisions of this paragraph. 93a (B) Requirements for listing (i) Sufficient information The person petitioning for listing of an additional pollutant under this sub- section shall submit to the Adminis- trator sufficient information to make the determinations required by this subparagraph. (ii) Toxic criteria determination The Administrator shall determine whether or not the pollutant meets the criteria for listing as a toxic pollutant under section 1317(a) of this title. (iii) Listing as toxic pollutant If the Administrator determines that the pollutant meets the criteria for listing as a toxic pollutant under section 1317(a) of this title, the Ad- ministrator shall list the pollutant as a toxic pollutant under section 1317 (a) of this title. (iv) Nonconventional criteria determina- tion If the Administrator determines that the pollutant does not meet the criteria for listing as a toxic pollutant under such section and determines that adequate test methods and suffi- cient data are available to make the determinations required by paragraph (2) of this subsection with respect to the pollutant, the Administrator shall add the pollutant to the list of pollut- 94a ants specified in paragraph (1) of this subsection for which modifica- tions are authorized under this sub- section. (C) Requirements for filing of petitions A petition for listing of a pollutant un- der this paragraph— (i) must be filed not later than 270 days after the date of promulgation of an applicable effluent guideline under section 1314 of this title; (ii) may be filed before promul- gation of such guideline; and (iii) may be filed with an applica- tion for a modification under para- graph (1) with respect to the dis- charge of such pollutant. (D) Deadline for approval of petition A decision to add a pollutant to the list of pollutants for which modifications under this subsection are authorized must be made within 270 days after the date of promulgation of an applicable effluent guideline under section 1314 of this title. (E) Burden of proof The burden of proof for making the de- terminations under subparagraph (B) shall be on the petitioner. (5) Removal of pollutants The Administrator may remove any pollutant from the list of pollutants for which modifica- tions are authorized under this subsection if | i 95a the Administrator determines that adequate test methods and sufficient data are no longer avail- able for determining whether or not modifica- tions may be granted with respect to such pol- lutant under paragraph (2) of this subsection. (h) Modification of secondary treatment require- ments The Administrator, with the concurrence of the State, may issue a permit under section 1342 of this title which modifies the requirements of subsection (b)(1)(B) of this section with respect to the dis- charge of any pollutant from a publicly owned treat- ment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that— (1) there is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been iden- tified under section 1314(a)(6) of this title; (2) the discharge of pollutants in accord- ance with such modified requirements will not interfere, alone or in combination with pollu- tants from other sources, with the attainment or maintenance of that water quality which as- sures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife, and allows recreational activities, in and on the water; (3) the applicant has established a system for monitoring the impact of such discharge on a representative sample of aquatic biota, to the extent practicable, and the scope of such moni- toring is limited to include only those scientific 96a investigations which are necessary to study the effects of the proposed discharge; (4) such modified requirements will not re- sult in any additional requirements on any other point or nonpoint source; (5) all applicable pretreatment requirements for sources introducing waste into such treat- ment works will be enforced; (6) in the case of any treatment works serv- ing a population of 50,000 or more, with re- spect to any toxic pollutant introduced into such works by an industrial discharger for which pollutant there is no applicable pretreatment re- quirement in effect, sources introducing waste into such works are in compliance with all ap- plicable pretreatment requirements, the appli- cant will enforce such requirements, and the applicant has in effect a pretreatment program which, in combination with the treatment of discharges from such works, removes the same amount of such pollutant as would be removed if such works were to apply secondary treat- ment to discharges and if such works had no pretreatment program with respect to such pol- lutant; (7) to the extent practicable, the applicant has established a schedule of activities designed to eliminate the entrance of toxic pollutants from nonindustrial sources into such treatment works; (8) there will be no new or substantially in- creased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit; 97a (9) the applicant at the time such modifica- tion becomes effective will be discharging ef- fluent which has received at least primary or equivalent treatment and which meets the cri- teria established under section 1314(a)(1) of this title after initial mixing in the waters sur- rounding or adjacent to the point at which such effluent is discharged. For the purposes of this subsection the phrase “the discharge of any pollutant into marine waters” re- fers to a discharge into deep waters of the territorial sea or the waters of the contiguous zone, or into saline estuarine waters where there is strong tidal movement and other hydrological and geological characteristics which the Administrator determines necessary to allow compliance with paragraph (2) of this subsection, and section 1251(a)(2) of this title. For the purpose of paragraph (9), “primary or equivalent treatment” means treatment by screen- ing, sedimentation, and skimming adequate to re- move at least 30 percent of the biological oxygen demanding material and of the suspended solids in the treatment works influent, and disinfection, where appropriate. A municipality which applies second- ary treatment shall be eligible to receive a permit pursuant to this subsection which modifies the re- quirements of subsection (b)(1)(B) of this section with respect to the discharge of any pollutant from any treatment works owned by such municipality into marine waters. No permit issued under this subsection shall authorize the discharge of sewage sludge into marine waters. In order for a permit to be issued under this subsection for the discharge of a pollutant into marine waters, such marine waters must exhibit characteristics assuring that water pro- viding dilution does not contain significant amounts of previously discharged effluent from such treat- ment works. No permit issued under this subsec- 98a tion shall authorize the discharge of any pollutant into saline estuarine waters which at the time of ap- plication do not support a balanced indigenous pop- ulation of shellfish, fish and wildlife, or allow rec- reation in and on the waters or which exhibit am- bient water quality below applicable water quality standards adopted for the protection of public water supplies, shellfish, fish and wildlife or recreational activities or such other standards necessary to assure support and protection of such uses. The prohibi- tion contained in the preceding sentence shall apply without regard to the presence or absence of a casual relationship between such charactristics and the ap- plicant’s current or proposed discharge. Notwith- standing any other provisions of this subsection, no permit may be issued under this subsection for dis- charge of a pollutant into the New York Bight Apex consisting of the ocean waters of the Atlantic Ocean westward of 73 degrees 30 minutes west longitude and northward of 40 degrees 10 minutes north lati- tude. (i) Municipal time extensions (1) Where construction is required in order for a planned or existing publicly owned treatment works to achieve limitations under subsection (b) (1)(B) or (b)(1)(C) of this section, but (A) construction cannot be completed within the time required in such subsection, or (B) the United States has failed to make financial assistance under this chapter available in time to achieve such limi- tations by the time specified in such subsection, the owner or operator of such treatment works may re- quest the Administrator (or if appropriate the State) to issue a permit pursuant to section 1342 of this title or to modify a permit issued pursuant to that section to extend such time for compliance. Any such request shall be filed with the Administrator a ae 99a (or if appropriate the State) within 180 days after February 4, 1987. The Administrator (or if ap- propriate the State) may grant such request and issue or modify such a permit, which shall contain a schedule of compliance for the publicly owned treatment works based on the earliest date by which such financial assistance will be available from the United States and construction can be completed, but in no event later than July 1, 1988, and shall contain such other terms and conditions, including those necessary to carry out subsections (b) through (g) of section 1281 of this title, Section 1317 of this title, and such interim effluent-limitations ap- plicable to that treatment works as the Administrator determines are necessary to carry out the provisions of this chapter. (2)(A) Where a point source (other than a pub- licly owned treatment works) will not achieve the requirements of subsections (b)(1)(A) and (b) (1)(C) of this section and— (i) if a permit issued prior to July 1, 1977, to such point source is based upon a discharge into a publicly owned treatment works; or (ii) if such point source (other than a pub- licly owned treatment works) had before July 1, 1977, a contract (enforceable against such point source) to discharge into a_ publicly owned treatment works; or (iii) if either an application made before July 1, 1977, for a construction grant under this chapter for a publicly owned treatment works, or engineering or architectural plans or working drawings made before July 1, 1977, for a publicly owned treatment works, show that such point source was to discharge into such publicly owned treatment works, and such publicly owned treatment works is pres- ently unable to accept such discharge without con- 100a struction, and in the case of a discharge to an ex- isting publicly owned treatment works, such treat- ment works has an extension pursuant to paragraph (1) of this subsection, the owner or operator of such point source may request the Administrator (or if appropriate the State) to issue or modify such a permit pursuant to such section 1342 of this title to extend such time for compliance. Any such request shall be filed with the Administrator (or if appropriate the State) within 180 days after De- cember 27, 1977, or the filing of a request by the appropriate publicly owned treatment works under paragraph (1) of this subsection, whichever is later. If the Administrator (or if appropriate the State) finds that the owner or operator of such point source has acted in good faith, he may grant such request and issue or modify such a permit, which shall contain a schedule of compliance for the point source to achieve the requirements of subsections (b)(1)(A) and (C) of this section and shall con- tain such other terms and conditions, including pre- treatment and interim effluent limitations and water conservation requirements applicable to that point source, as the Administrator determines are neces- sary to carry out the provisions of this chapter. (B) No time modification granted by the Admin- istrator (or if appropriate the State) pursuant to paragraph (2)(A) of this subsection shall extend beyond the earliest date practicable for compliance or beyond the date of any extension granted to the appropriate publicly owned treatment works pursu- ant to paragraph (1) of this subsection, but in no event shall it extend beyond July 1, 1988; and no such time modification shall be granted unless (i) the publicly owned treatment works will be in opera- tion and available to the point source before July 1, 1988, and will meet the requirements of subsections (b)(1)(B) and (C) of this section after receiving 10la the discharge from that point source; and (ii) the point source and the publicly owned treatment works have entered into an enforceable contract re- quiring the point source to discharge into the pub- licly owned treatment works, the owner or operator of such point source to pay the costs required under section 1284 of this title, and the publicly owned treatment works to accept the discharge from the point source; and (iii) the permit for such point source requires that point source to meet all require- ments under section 1317(a) and (b) of this title during the period of such time modification. (j) Modification procedures (1) Any application filed under this section for a modification of the provisions of— (A) subsection (b)(1)(B) of this section under subsection (h) of this section shall be filed not later that [sic] the 365th day which begins after December 29, 1981, except that a publicly owned treatment works which prior to December 31, 1982, had a contractual arrange- ment to use a portion of the capacity of an ocean outfall operated by another publicly owned treatment works which has applied for or received modification under subsection (h) of this section, may apply for a modification of subsection (h) of this section in its own right not later than 30 days after February 4, 1987; (B) subsection (b)(2)(A) of this section as it applies to pollutants identified in subsec- tion (b)(2)(F) of this section shall be filed not later than 270 days after the date of prom- ulgation of an applicable effluent guideline un- der section 1314 of this title or not later than 102a 270 days after December 27, 1977, whichever is later. (2) Subject to paragraph (3) of this section, any application for a modification filed under sub- section (g) of this section shall not operate to stay any requirement under this chapter, unless in the judgment of the Administrator such a stay or the modification sought will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumula- tion, persistency in the environment, acute toxicity, chronic toxicity (including carcinogenicity, mutagen- icity, or teratogenicity), or synergistic propensities, and that there is a substantial likelihood that the applicant will succeed on the merits of such applica- tion. In the case of an application filed under sub- section (g) of this section, the Administrator may condition any stay granted under this paragraph on requiring the filing of a bond or other appropriate security to assure timely compliance with the re- quirements from which a modification is sought. (3) COMPLIANCE REQUIREMENTS UNDER SUBSEC- TION (g).— (A) EFFECT OF FILING.—An application for a modification under subsection (g) of this sec- tion and a petition for listing of a pollutant as a pollutant for which modifications are author- ized under such subsection shall not stay the requirement that the person seeking such modi- fication or listing comply with effluent limita- tions under this chapter for all pollutants not the subject of such application or petition. (B) EFFECT OF DISAPPROVAL.—Disapproval of an application for a modification under sub- section (g) of this section shall not stay the 103a requirement that the person seeking such modi- fication comply with all applicable effluent lim- itations under this chapter. (4) DEADLINE FOR SUBSECTION (g) DECISION.— An application for a modification with respect to a pollutant filed under subsection (g) of this section must be approved or disapproved not later than 365 days after the date of such filing; except that in any case in which a petition for listing such pollutant as a pollutant for which modifications are authorized under such subsection is approved, such application must be approved or disapproved not later than 365 days after the date of approval of such petition. (k) Innovative technology In the case of any facility subject to a permit under section 1342 of this title which proposes to comply with the requirements of subsection (b)(2) (A) or (b)(2)(E) of this section by replacing exist- ing production capacity with an innovative produc- tion process which will result in an effluent reduction significantly greater than that required by the limita- tion otherwise applicable to such facility and moves toward the national goal of eliminating the discharge of all pollutants, or with the installation of an in- novative control technique that has a substantial likelihood for enabling the facility to comply with the applicable effluent limitation by achieving a sig- nificantly greater effluent reduction than that re- quired by the applicable effluent limitation and moves toward the national goal of eliminating the discharge of all pollutants, or by achieving the re- quired reduction with an innovative system that has the potential for significantly lower costs than the systems which have been determined by the Adminis- trator to be economically achievable, the Adminis- trator (or the State with an approved program under 104a section 1342 of this title, in consultation with the Administrator) may establish a date for compliance under subsection (b)(2)(A) or (b)(2)(E) of this section no later than two years after the date for compliance with such effluent limitation which would otherwise be applicable under such subsection, if it is also determined that such innovative system has the potential for industrywide application. (1) Toxic pollutants Other than as provided in subsection (n) of this section, the Administrator may not modify any re- quirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 1317(a)(1) of this title. (m) Modification of effluent limitation requirements for point sources (1) The Administrator, with the concurrence of the State, may issue a permit under section 1342 of this title which modifies the requirements of sub- sections (b)(1)(A) and (b)(2)(E) of this section, and of section 1343 of this title, with respect to effluent limitations to the extent such limitations re- late to biochemical oxygen demand and pH from discharges by an industrial discharger in such State into deep waters of the territorial seas, if the appli- cant demonstrates and the Administrator finds that— (A) the facility for which modification is sought is covered at the time of the enactment of this subsection by National Pollutant Dis- charge Elimination System permit number CA0005894 or CA0005282; (B) the energy and environmental costs of meeting such requirements of subsection (b) (1)(A) and (b)(2)(E) of this section and sec- 105a tion 1343 of this title exceed by an unreason- able amount the benefits to be obtained, includ- ing the objectives of this chapter; (C) the applicant has established a system for monitoring the impact of such discharges on a representative sample of aquatic biota; (D) such modified requirements will not re- sult in any additional requirements on any other point or nonpoint source; (E) there will be no new or substantially in- creased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit; (F) the discharge is into waters where there is strong tidal movement and other hydrological and geological characteristics which are neces- sary to allow compliance with this subsection and section 1251(a)(2) of this title; (G) the applicant accepts as a condition to the permit a contractual obligation to use funds in the amount required (but not less than $250,000 per year for ten years) for research and development of water pollution control tech- nology, including but not limited to closed cycle technology; (H) the facts and circumstances present a unique situation which, if relief is granted, will not establish a precedent or the relaxation of the requirements of this chapter applicable to similarly situated discharges; and (1) no owner or operator of a facility com- parable to that of the applicant situated in the United States has demonstrated that it would 106a be put at a competitive disadvantage to the applicant (or the parent company or any sub- sidiary thereof) as a result of the issuance of a permit under this subsection. (2) The effluent limitations established under a permit issued under paragraph (1) shall be sufficient to implement the applicable State water quality standards, to assure the protection of public water supplies and protection and propagation of a bal- anced, indigenous population of shellfish, fish, fauna, - wildlife, and other aquatic organisms, and to allow recreational activities in and on the water. In set- ting such limitations, the Administrator shall take into account any seasonal variations and the need for an adequate margin of safety, considering the lack of essential Knowledge concerning the relation- ship between effluent limitations and water quality and the lack of essential knowledge of the effects of discharges on beneficial uses of the receiving waters. (3) A permit under this subsection may be issued for a period not to exceed five years, and such a permit may be renewed for one additional period not to exceed five years upon a demonstration by the applicant and a finding by the Administrator at the time of application for any such renewal that the provisions of this subsection are met. (4) The Administrator may terminate a permit issued under this subsection if the Administrator determines that there has been a decline in ambient water quality of the receiving waters during the period of the permit even if a direct cause and effect relationship cannot be shown: Provided, That if the effluent from a source with a permit issued under this subsection is contributing to a decline in ambient water quality of the receiving waters, the Adminis- trator shall terminate such permit. 107a (n) Fundamentally different factors (1) General rule The Administrator, with the concurrence of the State, may establish an alternative require- ment under subsection (b)(2) of this section or section 1317(b) of this title for a facility that modifies the requirements of national effluent limitation guidelines or categorical pretreatment standards that would otherwise be applicable to such facility, if the owner or operator of such facility demonstrates to the satisfaction of the Administrator that— (A) the facility is fundamentally differ- ent with respect to the factors (other than cost) specified in section 1314(b) or 1314 (g) of this title and considered by the Ad- ministrator in establishing such national effluent limitation guidelines or categorical pretreatment standards; (B) the application— (i) is based solely on information and supporting data submitted to the Administrator during the rulemaking for establishment of the applicable na- tional effluent limitation guidelines or categorical pretreatment standard spe- cifically raising the factors that are fundamentally different for such facil- ity; or _(ii) is based on information and supporting data referred to in clause (i) and information and supporting data the applicant did not have a rea- sonable opportunity to submit during such rulemaking; 108a (C) the alternative requirement is no less stringent than justified by the funda- mental difference; and (D) the alternative requirement will not result in a non-water quality environmental impact which is markedly more adverse than the impact considered by the Ad- ministrator in establishing such national effluent limitation guideline or categorical pretreatment standard. (2) Time limit for applications An application for an alternative requirement which modifies the requirements of an effluent limitation or pretreatment standard under this subsection must be submitted to the Adminis- trator within 180 days after the date on which such limitation or standard is established or revised, as the case may be. (3) Time limit for decision The Administrator shall approve or deny by final agency action an application submitted under this subsection within 180 days after the date such application is filed with the Adminis- trator. (4) Submission of information The Administrator may allow an applicant under this subsection to submit information and supporting data until the earlier of the date the application is approved or denied or the last day that the Administrator has to approve or deny such application. 109a (5) Treatment of pending applications For the purposes of this subsection, an appli- cation for an alternative requirement based on fundamentally different factors which is pend- ing on February 4, 1987, shall be treated as having been submitted to the Administrator on the 180th day following February 4, 1987. The applicant may amend the application to take into account the provisions of this subsection. (6) Effect of submission of application An application for an alternative requirement under this subsection shall not stay the appli- cant’s obligation to comply with the effluent limitation guideline or categorical pretreatment standard which is the subject of the application. (7) Effect of denial If an application for an alternative require- ment which modifies the requirements of an effluent limitation or pretreatment standard un- der this subsection is denied by the Adminis- trator, the applicant must comply with such limi.ation or standard as established or revised, as the case may be. (8) Reports Every 6 months after February 4, 1987, the Administrator shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Public Works and Trans- portation of the House of Representatives a report on the status of applications for alterna- tive requirements which modify the require- ments of effluent limitations under section 1311 or 1314 of this title or any national categorical 110a pretreatment standard under section 1317(b) of this title filed before, on, or after February 4, 1987. (0) Application fees The Administrator shall prescribe and collect from each applicant fees reflecting the reasonable adminis- trative costs incurred in reviewing and processing applications for modifications submitted to the Ad- ministrator pursuant to subsections (c), (g), (i), (k), (m), and (n) of this section, section 1314(d)(4) of this title, and section 1326(a) of this title. All amounts collected by the Administrator under this subsection shall be deposited into a special fund of the Treasury entitled “Water Permits and Related Services” which shall thereafter be available for ap- propriation to carry out activities of the Environ- mental Protection Agency for which such fees were collected. (p) Modified permit for coal remining operations (1) In general Subject to paragraphs (2) through (4) of this subsection, the Administrator, or the State in any case which the State has an approved permit program under section 1342(b) of this title, may issue a permit under section 1342 of this title which modifies the requirements of subsection (b)(2)(A) of this section with re- spect to the pH level of any pre-existing dis- charge, and with respect to pre-existing dis- charges of iron and manganese from the remined area of any coal remining operation or with respect to the pH level or level of iron or manganese in any pre-existing discharge affected by the remining operation. Such modi- lila fied requirements shall apply the best available technology economically achievable on a case- by-case basis, using best professional judgment, to set specific numerical effluent limitations in each permit. (2) Limitations The Administrator or the State may only issue a permit pursuant to paragraph (1) if the applicant demonstrates to the satisfaction of the Administrator or the State, as the case may be, that the coal remining operation will result in the potential for improved water quality from the remining operation but in no event shall such a permit allow the pH level of any dis- charge, and in no event shall such a permit allow the discharges of iron and manganese, to exceed the levels being discharged from the remined area before the coal remining operation begins. No discharge from, or affected by, the remining operation shall exceed State water quality standards established under section 1313 of this title. (3) Definitions For purposes of this subsection— (A) Coal remining operation The term “coal remining operation” means a coal mining operation which be- gins after February 4, 1987 at a site on which coal mining was conducted before August 3, 1977. (B) Remined area The term “remined area” means only that area of any coal remining operation 12a on which coal mining was conducted be- fore August 3, 1977. (C) Pre-existing discharge The term “pre-existing discharge” means any discharge at the time of permit appli- cation under this subsection. (4) Applicability of strip mining laws Nothing in this subsection shall affect the application of the Surface Mining Control and Reclamation Act of 1977 [30 U.S.C. 1201 et seq.] to any coal remining operation, including the application of such Act to suspended solids. li3a expected to contribute to the attainment or mainte- nance of such water quality. (b) Modifications of effluent limitations (1) Notice and hearing Prior to establishment of any effluent limitation pursuant to subsection (a) of this section, the Administrator shall publish such proposed limi- tation and within 90 days of such publication hold a public hearing. (2) Permits (A) No reasonable relationship 2. Section 302 of the Clean Water Act, also known as the Federal Water Pollution Control Act, as codified at 33 U.S.C. § 1312, provides: The Administrator, with the concurrence of the State, may issue a permit which modifies the effluent limitations required § 1312. Water quality related effluent limitations (a) Establishment Whenever, in the judgment of the Administrator or as identified under section 1314(/) of this title, discharges of pollutants from a point source or group of point sources, with the application of effluent limi- tations required under section 1311(b)(2) of this title, would interfere with the attainment or main- tenance of that water quality in a specific portion of the navigable waters which shall assure protection of public health, public water supplies, agricultural and industrial uses, and the protection and propaga- tion of a balanced population of shellfish, fish and wildlife, and allow recreational activities in and on the water, effluent limitations (including alternative effluent control strategies) for such point source or sources shall be established which can reasonably be by subsection (a) of this section for pollut- ants other than toxic pollutants if the ap- plicant demonstrates at such hearing that (whether or not technology or other alter- native control strategies are available) there is no reasonable relationship between the economic and social costs and the benefits to be obtained (including attain- ment of the objective of this chapter) from achieving such limitation. (B) Reasonable progress The Administrator, with the concurrence of the State, may issue a permit which modifies the effluent limitations required by subsection (a) of this section for toxic pollutants for a single period not to ex- ceed 5 years if the applicant demonstrates to the satisfaction of the Administrator li4a that such modified requirements (i) will represent the maximum degree of control within the economic capability of the owner and operator of the source, and (ii) will result in reasonable further progress be- yond the requirements of section 1311(b) (2) of this title toward the requirements of subsection (a) of this section. (c) Delay in application of other limitations The establishment of effluent limitations under this section shall not operate to delay the applica- tion of any effluent limitation established under sec- tion 1311 of this title. 3. Section 303 of the Clean Water Act, also known as the Federal Water Pollution Control Act, as codified at 33 U.S.C. § 1313, provides: § 1313. Water quality standards and implementa- tion plans (a) Existing water quality standards (1) In order to carry out the purpose of this chapter, any water quality standard applicable to interstate waters which was adopted by any State and submitted to, and approved by, or is a waiting [sic] approval by, the Administrator pursuant to this Act as in effect immediately prior to October 18, 1972, shall remain in effect unless the Administrator determined that such standard is not consistent with the applicable requirements of this Act as in effect immediately prior to October 18, 1972. If the Ad- ministrator makes such a determination he shall, within three months after October 18, 1972, notify the State and specify the changes needed to meet such requirements. If such changes are not adopted by the State within ninety days after the date of 11Sa such notification, the Administrator shall promul- gate such changes in accordance with subsection (b) of this section. (2) Any State which, before October 18, 1972, has adopted, pursuant to its own law, water quality standards applicable to intrastate waters shall sub- mit such standards tO the Administrator within thirty days after October 18, 1972. Each such standard shall remain in effect, in the same manner and to the same extent as any other water quality standard established under this chapter unless the Administrator determines that such standard is in- consistent with the applicable requirements of this Act as in effect immediately prior to October 18, 1972. If the Administrator makes such a determi- nation he shall not later than the one hundred and twentieth day after the date of submission of such standards, notify the State and specify the changes needed to meet such requirements. If such changes are not adopted by the State within ninety days af- ter such notification, the Administrator shall prom- ulgate such changes in accordance with subsection (b) of this section. (3)(A) Any State which prior to October 18, 1972, has not adopted pursuant to its own laws water quality standards applicable to intrastate waters shall, not later than one hundred and eighty days after October 18, 1972, adopt and submit such standards to the Administrator. (B) If the Administrator determines that any such standards are consistent with the applicable requirements of this Act as in effect immediately prior to October 18, 1972, he shall approve such standards. (C) If the Administrator determines that any such standards are not consistent with the applicable requirements of this Act as in effect immediately 116a prior to October 18, 1972, he shall, not later than the ninetieth day after the date of submission of such standards, notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days af- ter the date of notification, the Administrator shall promulgate such standards pursuant to subsection (b) of this section. (b) Proposed regulations (1) The Administrator shall promptly prepare and publish proposed regulations setting forth water quality standards for a State in accordance with the applicable requirements of this Act as in effect im- mediately prior to October 18, 1972, if— (A) the State fails to submit water quality standards within the times prescribed in sub- section (a) of this section. (B) a water quality standard submitted by such State under subsection (a) of this section is determined by the Administrator not to be consistent with the applicable requirements of subsection (a) of this section. (2) The Administrator shall promulgate any wa- ter quality standard published in a proposed reg- ulation not later than one hundred and ninety days after the date he publishes any such proposed stand- ard, unless prior to such promulgation, such State has adopted a water quality standard which the Ad- ministrator determines to be in accordance with sub- section (a) of this section. (c) Review; revised standards; publication (1) The Governor of a State or the State water pollution control agency of such State shall from time to time (but at least once each three year period beginning with October 18, 1972) hold public hearings for the purpose of reviewing applicable 117a water quality standards and, as appropriate, modi- fying and adopting standards. Results of such review shall be made available to the Administrator. (2)(A) Whenever the State revises or adopts a new standard, such revised or new standard shall be submitted to the Administrator. Such revised or new water quality standards shall consist of the desig- nated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into considera- tion their use and value for public water supplies, propagation of fish and wildlife, recreational pur- poses, and also taking into consideration their use and value for navigation. (B) Whenever a State reviews water quality stand- ards pursuant to paragraph (1) of this subsection, or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria for all toxic pollutants listed pursuant to section 1317(a)(1) of this title for which criteria have been published un- der section 1314(a) of this title, the discharge or presence of which in the affected waters could rea- sonably be expected to interfere with those desig- nated uses adopted by the state, as necessary to sup- port such designated uses. Such criteria shall be specific numerical criteria for such toxic pollutants. Where such numerical criteria are not available, whenever a State reviews water quality standards pursuant to paragraph (1), or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria based on biological monitoring or assessment methods consistent with information pub- lished pursuant to section 1314(a)(8) of this title. Nothing in this section shall be construed to limit or delay the use of effluent limitations or other per- 118a mit conditions based on or involving biological mon- itoring or assessment methods or previously adopted numerical criteria. (3) If the Administrator, within sixty days after the date of submission of the revised or new stand- ard, determines that such standard meets the require- ments of this chapter, such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not con- sistent with the applicable requirements of this chap- ter, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Ad- ministrator shall promulgate such standard pursuant to paragraph (4) of this subsection. (4) The Administrator shall promptly prepare and publish proposed regulations setting forth a re- vised or new water quality standard for the navigable waters involved— (A) if a revised or new water quality stand- ard submitted by such State under paragraph (3) of this subsection for such waters is deter- mined by the Administrator not to be consistent with the applicable requirements of this chapter, or (B) in any case where the Administrator de- termines that a revised or new standard is nec- essary to meet the requirements of this chapter. The Administrator shall promulgate any revised or new standard under this paragraph not later than ninety days after he publishes such proposed stand- ards, unless prior to such promulgation, such State has adopted a revised or new water quality standard which the Administrator determines to be in accord- ance with this chapter. 119a (d) Identification of areas with insufficient controls; maximum daily load; certain effluent limitations revision (1)(A) Each State shall identify those waters within its boundaries for which the effluent limita- tions required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. (B) Each State shall identify those waters or parts thereof within its boundaries for which con- trols on thermal discharges under section 1311 of this title are not stringent enough to assure protec- tion and propagation of a balanced indigenous popu- lation of shellfish, fish, and wildlife. (C) Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 1314(a) (2) of this title as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge con- cerning the relationship between effluent limitations and water quality. (D) Each State shall estimate for the waters identified in paragraph (1)(B) of this subsection the total maximum daily thermal load required to assure protection and propagation of a balanced, in- digenous population of shellfish, fish, and wildlife. Such estimates shall take into account the normal 120a water temperatures, flow rates, seasonal variations, existing sources of heat input, and the dissipative capacity of the identified waters or parts thereof. Such estimates shall include a calculation of the maximum heat input that can be made into each such part and shall include a margin of safety which takes into account any lack of knowledge concerning the development of thermal water quality criteria for such protection and propagation in the identified waters or parts thereof. (2) Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pol- lutants under section 1314(a)(2)(D) of this title, for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The Ad- ministrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State Shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and ioad, he shall not later than thirty days after the date of such dis- approval identify such waters in such State and establish such loads for such waters as he deter- mines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall in- corporate them into its current plan under subsec- tion (e) of this section. (3) For the specific purpose of developing infor- mation, each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B) of this subsection 12la and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation and for thermal dis- charges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish, and wildlife. (4) LIMITATIONS ON REVISION OF CERTAIN EF- FLUENT LIMITATIONS.—— (A) STANDARD NOT ATTAINED.—For waters identified under paragraph (1)(A) where the applicable water quality standard has not yet been attained, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such revised effluent limitations based on such total maximum daily load or waste load alloca- tion will assure the attainment of such water quality standard, or (ii) the designated use which is not being attained is removed in ac- cordance with regulations established under this section. (B) STANDARD ATTAINED.—For waters iden- tified under paragraph (1)(A) where the qual- ity of such waters equals or exceeds levels neces- sary to protect the designated use for such waters or otherwise required by applicable wa- ter quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this sec- tion, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegrada- tion policy established under this section. —- 122a (e) Continuing planning process (1) Each State shall have a continuing planning process approved under paragraph (2) of this sub- section which is consistent with this chapter. (2) Each State shall submit not later than 120 days after October 18, 1972, to the Administrator for his approval a proposed continuing planning process which is consistent with this chapter. Not later than thirty days after the date of submission of such a process the Administrator shall either ap- prove or disapprove such process. The Administra- tor shall from time to time review each State’s ap- proved planning process for the purpose of insuring that such planning process is at all times consistent with this chapter. The Administrator shal! not ap- prove any State permit program under subchapter IV of this chapter for any State which does not have ____an approved continuing planning process under this section. (3) The Administrator shall approve any continu- ing planning process submitted to him under this section which will result in plans for all navigable waters within such State, which include, but are not limited to, the following: (A) effluent limitations and schedules of compliance at least as stringent as those re- quired by section 1311(b)(1), section 1311(b) (2), section 1316, and section 1317 of this title, and at least as stringent as any require- ments contained in any applicable water quality standard in effect under authority of this sec- tion; (B) the incorporation of all elements of any applicable area-wide waste management plans under section 1288 of this title, and applicable basin plans under section 1289 of this title; 123a (C) total maximum daily lead for pollutants in accordance with subsection (d) of this sec- uon; (D) procedures for revision; (E) adequate authority for intergovernmen- tal cooperation; (F) adequate implementation, including sched- ules of compliance, for revised or new water quality standards, under subsection (c) of this section; (G) controls over the disposition of all re- sidual waste from any water treatment process- ing; (H) an inventory and ranking, in order of priority, of needs for construction of waste treatment works required to meet the applicable requirements of sections 1311 and 1312 of this title. (f) Earlier compliance Nothing in this section shall be construed to af- fect any effluent limitation, or schedule of compli- ance required by any State to be implemented prior to the dates set forth in sections 1311(b)(1) and 1311(b)(2) of this title nor to preclude any State from requiring compliance with any effluent limi- tation or schedule of compliance at dates earlier than such dates. (g) Heat standards Water quality standards relating to heat shall be consistent with the requirements of section 1326 of this title. 124a (h) Thermal water quality standards For the purposes of this chapter the term “water quality standards” includes thermal water quality Standards. 4. Section 306 of the Clean Water Act, also known as the Federal Water Pollution Control Act, as codified at 33 U.S.C. § 1316, provides: § 1316. National standards of performance (a) Definitions For purposes of this section: (1) The term “standard of performance” means a standard for the control of the discharge of pollut- ants which reflect the greatest degree of effluent re- duction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operat- ing methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants. (2) The term “new source” means any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this sec- tion. (3) The term “source” means any building, struc- ture, facility, or installation from which there is or may be the discharge of pollutants. (4) The term “owner or Operator” means any person who owns, leases, operates, controls, or su- pervises a source. a 125a (5) The term “construction” means any place- ment, assembly, or installation of facilities or equip- ment (including contractual obligations to purchase such facilities or equipment) at the premises where such equipment will be used, including preparation work at such premises. (b) Categories of sources; Federal standards of per- formance for new sources (1)(A) The Administrator shall, within ninety days after October 18, 1972, publish (and from time to time thereafter shall revise) a list of cate- gories of sources, which shall, at the minimum, in- clude: pulp and paper mills; . paperboard, builders paper and board mills; meat product and rendering processing; dairy product processing; grain mills; canned and preserved fruits and vegetables processing; : canned and preserved seafood processing; sugar processing; textile mills; cement manufacturing; feedlots; electroplating; organic chemicals manufacturing; inorganic chemicals manufacturing; . plastic and synthetic materials manufacturing; soap and detergent manufacturing; fertilizer manufacturing; petroleum refining; iron and steel manufacturing; nonferrous metals manufacturing; phosphate manufacturing; steam electric powerplants; 126a ferroalloy manufacturing; leather tanning and finishing; glass and asbestos manufacturing; rubber processing; and timber products processing. (B) As soon as practicable, but in no case more than one year, after a category of sources is included in a list under subparagraph (A) of this paragraph, the Administrator shall propose and publish regula- tions establishing Federal standards of performance for new sources within such category. The Adminis- trator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promul- gate, within one hundred and twenty days after pub- lication of such proposed regulations, such standards with such adjustments as he deems appropriate. The Administrator shall, from time to time, as technology and alternatives change, revise such standards fol- lowing the procedure required by this subsection for promulgation of such standards. Standards of per- formance, or revisions thereof, shall become effective upon promulgation. In establishing or revising Fed- eral standards of performance for new sources under this section, the Administrator shall take into con- sideration the cost of achieving such effldent reduc- tion, and any non-water quality, environmental im- pact and energy requirements. (2) The Administrator may distinguish among Classes, types, and sizes within categories of new sources for the purpose of establishing such stand- ards and shall consider the type of process employed (including whether batch or continuous). (3) The provisions of this section shall apply to any new source owned or operated by the United States. 127a (c) State enforcement of standards of performance Each State may develop and submit to the Ad- ministrator a procedure under State law for applying and enforcing standards of performance for new sources located in such State. If the Administrator finds that the procedure and the law of any State require the application and enforcement of standards of performance to at least the same extent as re- quired by this section, such State is authorized to apply and enforce such standards of performance (except with respect to new sources owned or oper- ated by the United States). (d) Protection from more stringent standards Notwithstanding any other provision of this chap- ter, any point source the construction of which is commenced after October 18, 1972, and which is so constructed as to meet all applicable standards of performance shall not be subject to any more strin- gent standard of performance during a ten-year pe- riod beginning on the date of completion of such construction or during the period of depreciation or amortization of such facility for the purposes of section 167 or 169 (or both) of title 26 whichever period ends first. (e) Megality of operation of new sources in viola- tion of applicable standards of performance After the effective date of standards of perform- ance promulgated under this section, it shall be un- lawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source. 5. Section 307 of the Clean Water Act, also known as the Federal Water Pollution Control Act, as codified at 33 U.S.C. § 1317, provides: 128a § 1317. Toxic and pretreatment effluent standards (a) Toxic pollutant list; revision; hearing; promulga- tion of standards; effective date; consultstion (1) On and after December 27, 1977, the list of toxic pollutants or combination of pollutants subject to this chapter shall consist of those toxic pollutants listed in table 1 of Committee Print Numbered 95-30 of the Committee on Public Works and Transporta- tion of the House of Representatives, and the Ad- ministrator shall publish, not later than the thirtieth day after December 27, 1977, that list. From time to time thereafter, the Administrator may revise such list and the Administrator is authorized to add to or remove from such list any pollutant. The Ad- ministrator in publishing any revised list, including the addition or removal of any pollutant from such list, shall take into account toxicity of the pollutant, its persistence, degradability, the usual or potential presence of the affected organisms in any waters, the importance of the affected organisms, and the nature and extent of the effect of the toxic pollutant on such organisms. A determination of the Administrator under this paragraph shall be final except that if, on judicial review, such determination was based on arbitrary and capricious action of the Administrator, the Administrator shall make a redetermination. (2) Each toxic pollutant listed in accordance with paragraph (1) of this subsection shall be subject to effluent limitations resulting from the application of the best available technology economically achievable for the applicable category or class of point sources established in accordance with sections 1311(b)(2) (A) and 1314(b)(2) of this title. The Administra- tor, in his discretion, may publish in the Federal Register a proposed effluent standard (which may include a prohibition) establishing requirements for 129a a toxic pollutant which, if an effluent limitation is applicable to a class or category of point sources, shall be applicable to such category or class only if such standard imposes_more stringent requirements. Such published effluent standard (or prohibition) shall take into account the toxicity of the pollutant, its persistence, degradability, the usual or potential presence of the affected organisms in any waters, the importance of the affected organisms and the nature and extent of the effect of the toxic pollutant on such organisms, and the extent to which effective control is being or may be achieved under other regulatory authority. The Administrator shall allow a period of not less than sixty days following publication of any such proposed effluent standard (or prohibition ) for written comment by interested persons on such proposed standard. In addition, if within thirty days of publication of any such proposed effluent standard (or prohibition) any interested person so requests, the Administrator shall hold a public hearing in connection therewith. Such a public hearing shall provide an opportunity for oral and written presen- tations, such cross-examination as the Administrator determines is appropriate on disputed issues of ma- terial fact, and the transcription of a verbatim record which shall be available to the public. After con- sideration of such comments and any information and material presented at any public hearing held on such proposed standard or prohibition, the Adminis- trator shall promulgate such standard (or prohibi- tion) with such modification as the Administrator finds are justified. Such promulgation by the Ad- ministrator shall be made within two hundred and seventy days after publication of proposed standard (or prohibition). Such standard (or prohibition) shall be final except that if, on judicial review, such standard was not based on substantial evidence, the Administrator shall promulgate a revised standard. 130a Effluent limitations shall be established in accord- ance with sections 1311(b)(2)(A) and 1314(b)(2) of this title for every toxic pollutant referred to in table 1 of Committee Print Numbered 95-30 of the Committee on Public Works and Transportation of the House of Representatives as soon as practicable after December 27, 1977, but no later than July 1, 1980. Such effluent limitations or effluent standards (or prohibitions) shall be established for every other toxic pollutant listed under paragraph (1) of this subsection as soon as practicable after it is so listed. (3) Each such effluent standard (or prohibition) shall be reviewed and, if appropriate, revised at least every three years. (4) Any effluent standard promulgated under this section shall be at that level which the Administrator determines provides an ampie margin of safety. (5) When proposing or promulgating any effluent standard (or prohibition) under this section, the Administrator shall designate the category or cate- gories of sources to which the effluent standard (or prohibition) shall apply. Any disposal of dredged material may be included in such a category of sources after consultation with the Secretary of the Army. (6) Any effluent standard (or prohibition) estab- lished pursuant to this section shall take effect on such date or dates as specified in the order promul- gating such standard, but in no case, more than one year from the date of such promulgation. If the Ad- ministrator determines that compliance within one year from the date of promulgation is technologically infeasible for a category of sources, the Adminis- trator may establish the effective date of the effluent standard (or prohibition) for such category at the earliest date upon which compliance can be feasibly l3la attained by sources within such category, but in no event more than three years after the date of such promulgation. (7) Prior to publishing any regulations pursuant to this section the Administrator shall, to the maxi- mum extent practicable within the time provided, consult with appropriate advisory committees, States, independent experts, and Federal departments and agencies. (b) Pretreatment standards hearing; promulgation; compliance period; revision; application to State and local laws (1) The Administrator shall, within one hundred and eighty days after October 18, 1972, and from time to time thereafter, publish proposed regulations establishing pretreatment standards for introduction of pollutants into treatment works (as defined in section 1292 of this title) which are publicly owned for those pollutants which are determined not to be susceptible to treatment by such treatment works or which would interfere with the operation of such treatment works. Not later than ninety days after such publication, and after opportunity for public hearing, the Administrator shall promulgate such pretreatment standards. Pretreatment standards un- der this subsection shall specify a time for compli- ance not to exceed three years from the date of promulgation and shall be established to prevent the discharge of any pollutant through treatment works (as defined in section 1292 of this title) which are publicly owned, which pollutant interferes with, passes through, or otherwise is incompatible with such works. If, in the case of any toxic pollutant under subsection (a) of this section introduced by a source into a publicly owned treatment works, the treatment by such works removes all or any part 132a of such toxic pollutant and the discharge from such works does not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by such source other than through a publicly owned treatment works, and does not prevent sludge use or disposal by such works in accordance with section 1345 of this title, then the pretreatment requirements for the sources actually discharging such toxic pollutant into such publicly owned treatment works may be revised by the owner or operator of such works to reflect the removal of such toxic pollutant by such works. (2) The Administrator shall, from time to time, as control technology, processes, Operating methods, or other alternatives change, revise such standards following the procedure established by this subsec- tion for promulgation of such standards. (3) When proposing or promulgating any pre- treatment standard under this section, the Adminis- trator shall designate the category or categories of sources to which such standard shall apply. (4) Nothing in this subsection shall affect any pretreatment requirement established by any State or local law not in conflict with any pretreatment standard established under this subsection. (c) New sources of pollutants into publicly owned treatement works In order to insure that any source introducing pollutants into a publicly owned treatment works, which source would be a new source subject to sec- tion 1316 of this title if it were to discharge pollut- ants, will not cause a violation of the effluent limita- tions established for any such treatment works, the Administrator shall promulgate pretreatment stand- ards for the category of such sources simultaneously 133a with the promulgation of standards of performance under section 1316 of this title for the equivalent category of new sources. Such pretreatment stand- ards shall prevent the discharge of any pollutant into such treatment works, which pollutant may in- terfere with, pass through, or otherwise be incom- patible with such works. (d) Operation in violation of standards unlawful After the effective date of any effluent standard or prohibition or pretreatment standard promulgated under this section, it shall be unlawful for any owner or operator of any source to operate any source in violation of any such effluent standard or prohibition or pretreatment standard. (e) Compliance date extension for innovative pre- treatment systems In the case of any facility that proposes to comply with the pretreatment standards of subsection (b) of this section by applying an innovative system that meets the requirements of section 1311(k) of this title, the owner or operator of the publicly owned treatment works receiving the treated effluent from such facility may extend the date for compliance with the applicable pretreatment standard established under this section for a period not to exceed 2 years— (1) if the Administrator determines that the innovative system has the potential for industry- wide application, and (2) if the Administrator (or the State in consultation with the Administrator, in any case in which the State has a pretreatment pro- gram approved by the Administrator )— (A) determines that the proposed ex- tension will not cause the publicly owned 135a 134a for public hearings in connection with specific appli- cations. In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as (B) concurs with the proposed exten- the case may be, fails or refuses to act on a request sion. for certification, within a reasonable period of time i t exceed one year) after receipt of 6. Section 401 of the Clean Water Act, also known (which shall not exc y st, the certification requirements. of this as the Federal Water Pollution Control Act, as codified errata a be waived with ann to such Fed- at 33 U.S.C. § 1341, provides: treatment works to be in violation of its permit under section 1342 of this title or of section 1345 of this title or to contrib- ute to such a violation, and § 1341. Certification (a) Compliance with applicable requirements; appli- cation; procedures; license suspension (1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable water at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. In the case of any such activity for which there is not an applicable effluent limita- tion or other limitation under section 1311(b) and 1312 of this title, and there is not an applicable standard under sections 1316 and 1317 of this title, the State shall so certify, except that any such cer- tification shall not be deemed to satisfy section 1371(c) of this title. Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures eral application. No license or permit shall be granted until the certification required by this sec- tion has been obtained or has been waived as pro- vided in the preceding sentence. No license or per- mit shall be grantes if certification has been denied by the State, interstate agency, or the Administra- tor, as the case may be. (2) Upon receipt of such application and certifi- cation the licensing or permitting agency shall im- mediately notify the Administrator of such applica- tion and certification. Whenever such a discharge may affect, as determined by the Administrator, the quality of the waters of any other State, the Admin- istrator within thirty days of the date of notice of application for such Federal license or permit shall so notify such other State, the licensing or permit- ting agency, and the applicant. If, within sixty days after receipt of such notification, such other State determines that such discharge will affect the quality of its waters so as to violate any water quality re- quirements in such State, and within such sixty-day period notifies the Administrator and the licensing or permitting agency in writing of its objection to the issuance of such license or permit and requests a public hearing on such objection, the licensing or permitting agency shall hold such a hearing. The Administrator shall at such hearing submit his eval- uation and recommendations with respect to any es 136a such objection to the licensing or permitting agency. Such agency, based upon the recommendations of such State, the Administrator, and upon any addi- tional evidence, if any, presented to the agency at the hearing, shall condition such license or permit in such manner as may be necessary to insure com- pliance with applicable water quality requirements. If the imposition of conditions cannot insure such compliance such agency shall not issue such license or permit. (3) The certification obtained pursuant to para- graph (1) of this subsection with respect to the con- struction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other Federal license or permit required for the operation of such facility unless, after notice to the certifying State, agency, or Ad- ministrator, as the case may be, which shall be given by the Federal agency to whom application is made for such operating license or permit, the State, or if appropriate, the interstate agency or the Administra- tor, notifies such agency within sixty days after re- ceipt of such notice that there is no longer reason- able assurance that there will be compliance with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title because of changes since the construction license or permit cer- tification was issued in (A) the construction or op- eration of the facility, (B) the characteristics of the waters into which such discharge is made, (C) the water quality criteria applicable to such waters or (D) applicable effluent limitations or other require- ments. This paragraph shall be inapplicable in any case where the applicant for such operating license or permit has failed to provide the certifying State, or, if appropriate, the interstate agency or the Ad- ministrator, with notice of any proposed changes in the construction or operation of the facility with re- 137a spect to which a construction license or permit has - been granted, which changes may result in violation of section 1311, 1312, 1313, 1316, or 1317 of this title. (4) Prior to the initial operation of any federally ® licensed or permitted facility or activity which may result in any discharge into the navigable waters and with respect to which a certification has been obtained pursuant to paragraph (1) of this subsec- tion, which facility or activity is not subject to a Federal operating license or permit, the licensee or permittee shall provide an opportunity for such cer- tifying State, or, if appropriate, the interstate agency or the Administrator to review the manner in which the facility or activity shall be operated or conducted for the purposes of assuring that appli- cable effluent limitations or other limitations or other applicable water quality requirements will not be violated. Upon notification by the certifying State, or if appropriate, the interstate agency or the Ad- ministrator that the operation of any such federally licensed or permitted facility or activity will violate applicable effluent limitations or other limitations or other water quality requirements such Federal agency may, after public hearing, suspend such li- cense or permit. If such license or permit is sus- pended, it shall remain suspended until notification is received from the certifying State, agency, or Ad- ministrator, as the case may be, that there is rea- sonable assurance that such facility or activity will not violate the applicable provisions of section 1311, 1312, 1313, 1316, or 1317 of this title. (5) Any Federal license or permit with respect to which a certification has been obtained under para- graph (1) of this subsection may be suspended or revoked by the Federal agency issuing such license or permit upon the entering of a judgment under 138a this chapter that such facility or activity has been operated in violation of the applicable provisions of section 1311, 1312, 1313, 1316, or 1317 of this title. (6) Except with respect to a permit issued under section 1342 of this title, in any case where actual construction of a facility has been lawfully com- menced prior to April 3, 1970, no certification shall be required under this subsection for a license or permit issued after April 3, 1970, to operate such facility, except that any such license or permit is- sued without certification shall terminate April 3, 1973, unless prior to such termination date the per- son having such license or permit submits to the Federal agency which issued such license or permit a certification and otherwise meets the requirements of this section. (b) Compliance with other provisions of law setting applicable water quality requirements Nothing in this section shall be construed to limit the authority of any department or agency pursuant to any other provision of law to require compliance with any applicable water quality requirements. The Administrator shall, upon the request of any Federal department or agency, or State or interstate agency, or applicant, provide, for the purpose of this section, any relevant information on applicable effluent lim- itations, or other limitations, standards, regulations, or requirements, or water quality criteria, and shall, when requested by any such department or agency or State or interstate agency, or applicant, comment on any methods to comply with such limitations, stand- ards, regulations, requirements, or criteria. 139a (c) Authority of Secretary of the Army to permit use of spoil disposal areas by Federal licensees or permittees In order to implement the provisions of this sec- tion, the Secretary of the Army, acting through the Chief of Engineers, is authorized, if he deems it to be in the public interest, to permit the use of spoil disposal areas under his jurisdiction by Federal li- censees or permittees, and to make an appropriate charge for such use. Moneys received from such li- censees or permittees shall be deposited in the Treas- ury as miscellaneous receipts. (d) Limitations and monitoring requirements of cer- tification Any certification provided under this section shall set forth any effluent limitations and other limita- tions, and monitoring requirements necessary to as- sure that any applicant for a Federal license or per- mit will comply with any applicable effluent limita- tions and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropri- ate requirement of State law set forth in such cer- tification, and shall become a condition on any Fed- eral license or permit subject to the provisions of this section. 7. Section 510 of the Clean Water Act, also known as the Federal Water Pollution Control Act, as codified at 33 U.S.C. § 1370, provides: § 1370. State authority Except as expressly provided in this chapter, noth- ing in this chapter shall (1) preclude or deny the B. 1. 140a \ right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any stand- ard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abate- ment of pollution; except that if an effluent limitation, or other limitation, effluent standard prohibition, pre- treatment standard, or standard of performance is in effect under this chapter, such State or political subdivision or interstate agency may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment stand- ard, or standard of performance which is less strin- gent than the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment stand- ard, or standard of performance under this chapter; or (2) be construed as impairing or in any manner affecting any right of jurisdiction of the States with respect to the waters (including boundary waters) of such States. RELEVANT PROVISIONS OF THE FEDERAL POWER ACT Section 4(e) of the Federal Power Act, as codified at 16 U.S.C. § 797(e), provides: § 797. General Powers of Commission The Commission is authorized and empowered— (e) Issue of licenses for construction, etc., of dams, conduits, reservoirs, etc. To issue licenses to citizens of the United States, or to any association of such citizens, or to any cor- poration organized under the laws of the United States or any State thereof, or to any State or mu- nicipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs. power houses, transmission lines, or other project l4la works necessary or convenient for the development and improvement of navigation and for the develop- ment, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign na- tions and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam, except as herein provided: Provided, That licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reser- vation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such res- ervation falls shall deem necessary for the adequate protection and utilization of such reservations: Pro- vided further, That no license affecting the navigable capacity of any navigable waters of the United States shall be issued until the plans of the dam or other structures affecting the navigation have been approved by the Chief of Engineers and the Secre- tary of the Army. Whenever the contemplated im- provement is, in the judgment of the Commission, desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or for- eign commerce, a finding to that effect shall be made by the Commission and shall become a part of the records of the Commission: Provided further, That in case the Commission shall find that any Govern- ment dam may be advantageously used by the United States for public purposes in addition to navigation. no license therefor shall be issued until two years after it shall have reported to Congress the facts 142a and conditions relating thereto, except that this pro- vision shall not apply to any Government dam con- structed prior to June 10, 1920: And provided fur- ther, That upon the filing of any application for a license which has not been preceded by a preliminary permit under subsection (f) of this section, notice shall be given and published as required by the proviso of said subsection. In deciding whether to issue any license under this subchapter for any project, the Commission, in addition to the power and development purposes for which licenses are is- sued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality. 2. Section 10(a)(1) of the Federal Power Act, as codified at 16 U.S.C. § 803(a)(1), provides: § 803. Conditions of license generally All licenses issued under this subchapter shall be on the following conditions: (a) Modification of plans; factors considered to se- cure adaptability of project; recommendations for proposed terms and conditions (1) That the project adopted, including the maps, plans, and specifications, shall be such as in the judg- ment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of in- terstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of 143a fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes referred to in sec- tion 797(e) of this title* if necessary in order to secure such plan the Commission shall have author- ity to require the modification of any project and of the plans and specifications of the project works before approval. 3. Section 10(j) of the Federal Power Act, as codified at 16 U.S.C. § 803(j), provides: (j) Fish and wildlife protection, mitigation and en- hancement; consideration of recommendations; findings (1) That in order to adequately and equitably protect, mitigate damages to, and enhance, fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the project, each license issued under this subchapter shall include conditions for such pro- tection, mitigation, and enhancement. Subect to paragraph (2), such conditions shall be based on recommendations received pursuant to the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies. (2) Whenever the Commission believes that any recommendation referred to in paragraph (1) may be inconsistent with the purposes and requirements of this subchapter or other applicable law, the Com- misison and the agencies referred to in paragraph (1) shall attempt to resolve any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities of such agencies. If, 2 So in original. Probably should be followed by “; and”. 144a after such attempt, the Commission does not adopt in whole or in part a recommendation of any such agency, the Commission shall publish each of the following findings (together with a statement of the basis for each of the findings) : (A) A finding that adoption of such recom- mendation is inconsistent with the purposes and requirements of this subchapter or with other applicable provisions of law. (B) A finding that the conditions selected by the Commission comply with the requirements of paragraph (1). Subsection (i) of this section shall not apply to the conditions required under this subsection. 4. Section 15(a)(2)-(3) of the Federal Power Act, as codified at 16 U.S.C. § 808(a)(2)-(3), provides: § 808. New licenses and renewals (a) Reliconsing procedures; terme and conditions; fo suance to applicant with proposal best adapted to serve public interest; factors considered (2) Any new license issued under this section shall be issued to the applicant having the final proposal which the Commission determines is best adapted to serve the public interest, except that in making this determination the Commission shall en- sure that insignificant differences with regard to subparagraphs (A) through (G) of this paragraph between competing applications are not determina- tive and shall not result in the transfer of a project. In making a determination under this section (whether or not more than one application is sub- mitted for the project), the Commission shall, in addition to the requirements of section 803 of this title, consider (and explain such consideration in writing) each of the following: Se 145a (A) The plans and abilities of the applicant to comply with (i) the articles, terms, and con- ditions of any license issued to it and (ii) other applicable provisions of this subchapter. (B) The plans of the applicant to manage, operate, and maintain the project safely. (C) The plans and abilities of the applicant to operate and maintain the project in a manner most likely to provide efficient and reliable elec- tric service. (D) The need of the applicant over the short and long term for the electricity generated by the project or projects to serve its customers, including, among other relevant considerations, the reasonable costs and reasonable availability of alternative sources of power, taking into con- sideration conservation and other relevant fac- tors and taking into consideration the effect on the provider (including its customers) of the alternative source of power, the effect on the applicant’s operating and load characteristics, the effect on communities served or to be served by the project, and in the case of an applicant using power for the applicant’s own industrial facility and related operations, the effect on the operation and efficiency of such facility or re- lated operations, its workers, and the related community. In the case of an applicant that is an Indian tribe applying for a license for a project located on the tribal reservation, a state- ment of the need of such tribe for electricity generated by the project to foster the purposes of the reservation may be included. (E) The existing and planned transmission services of the applicant, taking into consider- ation system reliability, costs, and other ap- plicable economic and technical factors. 146a (F) Whether the plans of the applicant will be achieved, to the greatest extent possible, in a cost effective manner. (G) Such other factors as the Commission may deem relevant, except that the terms and conditions in the license for the protection, miti- gation, or enhancement cf fish and wildlife re- sources affected by the development, operation, and management of the preject shall be deter- mined in accordance with section 803 of this title, and the plans of an applicant concerning fish and wildlife shall not be subject to a com- parative evaluation under this subsection. (3) In the case of an application by the exist- ing licensee, the Commission shall also take into consideration each of the following: (A) The existing licensee’s record of com- pliance with the terms and conditions of the existing license. (B) The actions taken by the existing li- censee related to the project which affect the public. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0401%3A02. Public record. Not legal advice.