33 U.S.C. § 1341 — Certification

Page 561 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1341 PURPOSES AND POLICIES OF NATIONAL ESTUARY PROGRAM Pub. L. 100–4, title III, § 317(a), Feb. 4, 1987, 101 Stat. 61, provided that: ‘‘(1) FINDINGS.—Congress finds and declares that— ‘‘(A) the Nation’s estuaries are of great importance for fish and wildlife resources and recreation and eco- nomic opportunity; ‘‘(B) maintaining the health and ecological integ- rity of these estuaries is in the national interest; ‘‘(C) increasing coastal population, development, and other direct and indirect uses of these estuaries threaten their health and ecological integrity; ‘‘(D) long-term planning and management will con- tribute to the continued productivity of these areas, and will maximize their utility to the Nation; and ‘‘(E) better coordination among Federal and State programs affecting estuaries will increase the effec- tiveness and efficiency of the national effort to pro- tect, preserve, and restore these areas. ‘‘(2) PURPOSES.—The purposes of this section [enact- ing this section] are to— ‘‘(A) identify nationally significant estuaries that are threatened by pollution, development, or overuse; ‘‘(B) promote comprehensive planning for, and con- servation and management of, nationally significant estuaries; ‘‘(C) encourage the preparation of management plans for estuaries of national significance; and ‘‘(D) enhance the coordination of estuarine re- search.’’ SUBCHAPTER IV—PERMITS AND LICENSES § 1341. Certification (a) Compliance with applicable requirements; application; procedures; license suspension (1) Any applicant for a Federal license or per- mit to conduct any activity including, but not limited to, the construction or operation of fa- cilities, 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 jurisdic- tion over the navigable waters 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 applica- ble effluent limitation or other limitation under sections 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 certification 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 ap- plications for certification by it and, to the ex- tent it deems appropriate, procedures for public hearings in connection with specific applica- tions. In any case where a State or interstate agency has no authority to give such a certifi- cation, such certification shall be from the Ad- ministrator. If the State, interstate agency, or Administrator, as the case may be, fails or re- fuses to act on a request for certification, within a reasonable period of time (which shall not ex- ceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal ap- plication. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as pro- vided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be. (2) Upon receipt of such application and cer- tification the licensing or permitting agency shall immediately notify the Administrator of such application and certification. Whenever such a discharge may affect, as determined by the Administrator, the quality of the waters of any other State, the Administrator within thir- ty days of the date of notice of application for such Federal license or permit shall so notify such other State, the licensing or permitting 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 requirements in such State, and within such sixty-day period notifies the Admin- istrator 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 per- mitting agency shall hold such a hearing. The Administrator shall at such hearing submit his evaluation and recommendations with respect to any such objection to the licensing or permit- ting agency. Such agency, based upon the rec- ommendations of such State, the Administrator, and upon any additional evidence, if any, pre- sented to the agency at the hearing, shall condi- tion such license or permit in such manner as may be necessary to insure compliance with ap- plicable water quality requirements. If the im- position of conditions cannot insure such com- pliance such agency shall not issue such license or permit. (3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the construction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other Fed- eral license or permit required for the operation of such facility unless, after notice to the certi- fying State, agency, or Administrator, as the case may be, which shall be given by the Federal agency to whom application is made for such op- erating license or permit, the State, or if appro- priate, the interstate agency or the Adminis- trator, notifies such agency within sixty days after receipt of such notice that there is no longer reasonable 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 certification was issued in (A) the construction or operation 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) applica- ble effluent limitations or other requirements. 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 Administrator, with notice of any pro- posed changes in the construction or operation of the facility with respect to which a construc- Page 562 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1342 tion 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 feder- ally licensed or permitted facility or activity which may result in any discharge into the navi- gable waters and with respect to which a certifi- cation has been obtained pursuant to paragraph (1) of this subsection, which facility or activity is not subject to a Federal operating license or permit, the licensee or permittee shall provide an opportunity for such certifying State, or, if appropriate, the interstate agency or the Ad- ministrator to review the manner in which the facility or activity shall be operated or con- ducted for the purposes of assuring that applica- ble effluent limitations or other limitations or other applicable water quality requirements will not be violated. Upon notification by the certi- fying State, or if appropriate, the interstate agency or the Administrator that the operation of any such federally licensed or permitted facil- ity or activity will violate applicable effluent limitations or other limitations or other water quality requirements such Federal agency may, after public hearing, suspend such license or per- mit. If such license or permit is suspended, it shall remain suspended until notification is re- ceived from the certifying State, agency, or Ad- ministrator, as the case may be, that there is reasonable assurance that such facility or activ- ity 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 paragraph (1) of this subsection may be sus- pended or revoked by the Federal agency issuing such license or permit upon the entering of a judgment under 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 commenced prior to April 3, 1970, no certification shall be required under this sub- section for a license or permit issued after April 3, 1970, to operate such facility, except that any such license or permit issued without certifi- cation shall terminate April 3, 1973, unless prior to such termination date the person having such license or permit submits to the Federal agency which issued such license or permit a certifi- cation and otherwise meets the requirements of this section. (b) Compliance with other provisions of law set- ting 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 re- quire 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 appli- cant, provide, for the purpose of this section, any relevant information on applicable effluent limitations, or other limitations, standards, reg- ulations, or requirements, or water quality cri- teria, and shall, when requested by any such de- partment or agency or State or interstate agen- cy, or applicant, comment on any methods to comply with such limitations, standards, regula- tions, requirements, or criteria. (c) Authority of Secretary of the Army to permit use of spoil disposal areas by Federal licens- ees or permittees In order to implement the provisions of this section, the Secretary of the Army, acting through the Chief of Engineers, is authorized, if he deems it to be in the public interest, to per- mit the use of spoil disposal areas under his ju- risdiction by Federal licensees or permittees, and to make an appropriate charge for such use. Moneys received from such licensees or permit- tees shall be deposited in the Treasury as mis- cellaneous receipts. (d) Limitations and monitoring requirements of certification Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limita- tions, 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 appropriate require- ment of State law set forth in such certification, and shall become a condition on any Federal li- cense or permit subject to the provisions of this section. (June 30, 1948, ch. 758, title IV, § 401, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 877; amended Pub. L. 95–217, §§ 61(b), 64, Dec. 27, 1977, 91 Stat. 1598, 1599.) Editorial Notes AMENDMENTS 1977—Subsec. (a). Pub. L. 95–217 inserted reference to section 1313 of this title in pars. (1), (3), (4), and (5), struck out par. (6) which provided that no Federal agency be deemed an applicant for purposes of this sub- section, and redesignated par. (7) as (6). § 1342. National pollutant discharge elimination system (a) Permits for discharge of pollutants (1) Except as provided in sections 1328 and 1344 of this title, the Administrator may, after op- portunity for public hearing issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either (A) all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or (B) prior to the taking of nec- essary implementing actions relating to all such requirements, such conditions as the Adminis- trator determines are necessary to carry out the provisions of this chapter. (2) The Administrator shall prescribe condi- tions for such permits to assure compliance with the requirements of paragraph (1) of this sub- section, including conditions on data and infor- mation collection, reporting, and such other re- quirements as he deems appropriate.