Topic 21

47. Measures should be adopted to promote efficient water management and use, as well as proper management of effluents to reduce impacts on surrounding land, and water resources should be adopted.

The Clean Water Act (CWA; 33 U.S.C. 1251 et seq.) introduces the concept of  “Best Management Practices” when providing guidelines to those implementing the law, particularly regarding municipal separate storm sewer systems and areawide waste treatment management. In the section of the Act pertaining to “Standards and Enforcement” (Subchapter III) under “Information and Guidelines” (1314), “best practicable control technology” and “best control measures and practices achievable” are suggested for the purpose of adopting or revising effluent limitations.

The U.S. Environmental Protection Agency (EPA) oversees the National Pollutant Discharge Elimination System (NPDES), which was created in 1972 by the CWA. The NPDES permit program is authorized to State governments by EPA to perform many permitting, administrative, and enforcement aspects of the program. Authorization for States, Tribes, and Territories is through a process that is defined by CWA Section 402(b) and 40 CFR Part 123. A State may receive authorization for one or more of the NPDES program components. EPA retains authorization for the program components for which a State is not authorized (EPA-NPDES 2022). 

In addition to NPDES permits, pesticide use must follow the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) label. FIFRA provides regulations on pesticide distribution, sale, and use. Before EPA may register a drug under FIFRA, the applicant must show, among other things, the using the pesticide “will not generally cause unreasonable adverse effects on the environment" (EPA-FIFRA 2023).  Aquaculturists must comply with FIFRA in the use of insecticides and herbicides on farm land and water.  The EPA Office of Chemical Safety and Pollution Prevention is responsible for implementing FIFRA as well as other acts (i.e., Federal Food, Drug, and Cosmetic Act, Toxic Substances Control Act, and Pollution Prevention Act).  EPA Office of Pesticide Programs regulates the manufacture and use of all pesticides in the United States and establishes maximum levels for pesticide residues in food.  The Office of Pollution Prevention and Toxics manages programs under the Toxic Substances Control Act and Pollution Prevention Act to evaluate new and existing chemicals and their risks and find ways to prevent or reduce pollution before it gets into the environment.  Farmers are required to be certified in the use of restricted use pesticides under EPA regulations and state, territorial and tribal laws.

From the United States Court of Appeals for the Ninth Circuit (USCA9 2018):

SUMMARY: The panel affirmed the district court’s denial of a motion to dismiss a Clean Water Act suit alleging that discharges from the defendant’s oyster hatchery required a National Pollution Discharge Elimination System permit. The panel held that pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are “point sources” requiring an NPDES permit…

As mandated by the Clean Water Act (33 U.S.C. 1313), each State must provide to the Administrator (of the EPA), a continuing planning process describing current management and technical procedures developed and implemented to control, manage, and abate water pollution. “The Administrator shall from time to time review each State’s approved planning process for the purpose of insuring that such planning process is at all times consistent with this chapter.”

From the American Fisheries Society Fact Sheet "Mythbusting Marine Aquaculture" (AFS 2019):

Pollution can be prevented and mitigated with proper siting and management, and the use of new technologies. Siting farms in well flushed areas with adequate current and depth reduces water quality impacts. Siting can also de-crease benthic impacts. Modern tools to inform site management decisions include electrochemical analysis, image analysis, and modelling. Underwater cameras help monitor and regulate feeding to minimize waste. In addition, most commercial net pen farms have eliminated the use of anti-foulants on nets and are using mechanical robotic net cleaners.

From "A National Strategic Plan for Aquaculture Research" prepared by the National Science and Technology Council Subcommittee on Aquaculture (NSTC  2022):

Goal 1. Develop Economic Growth through Aquaculture

Objective 1.2: Enable science-based regulation and management of domestic aquaculture

A key impediment to the growth of the aquaculture industry is the complex and often unpredictable regulatory framework that can be costly for small farms to document compliance. Aquaculture businesses are regulated under an array of Federal, State, and local laws that govern a range of issues, including but not limited to animal health, water quality, impacts to navigation, and property rights. Many of these issues and Federal actions to improve regulatory efficiency for aquaculture are outlined in a report from the Subcommittee on Aquacultures Regulatory Efficiency Task Force.

Science has a key role to play in developing, analyzing, and interpreting datasets that inform Federal and State regulatory and management decision-making processes. Regulatory processes require objective, efficient, and timely decisions that are based on the best available science and appropriate risk management. Developing science-based approaches to siting and managing aquaculture facilities includes minimizing negative impacts to protected species and habitats, reducing risk of invasive species introductions, minimizing use conflicts, evaluating risks associated with disease and genetic risks of breeding between escaped farmed and wild populations, improving our understanding of existing uses to minimize conflict with other user groups, minimizing risks to water quality, and other tools. Such advancements will continually employ state-of-the-art scientific tools an approaches to advance the quality, consistency, and efficacy of regulatory decision-making for the benefit of industry, society, and the environment. Continual improvement of science-based management tools will be key to realizing the goals of economic performance, legal compliance, and environmental compatibility.

R&D projects can produce methods and technologies that minimize environmental impacts and increase efficiency of growing aquatic proteins. Science-based regulatory tools will lead to continuous improvement in economic, environmental, and social performance in all types of aquaculture industries.

The following actions will balance regulatory decision-making and environmental compliance with the need to expand domestic aquaculture production. The agencies listed below will support or conduct R&D activities or consult with science programs to identify research priorities and form science-based policy.

• Action 1.2.1 DOC NOAA (NOS, SG, NMFS), EPA, and DOE (ARPA-E, BETO) will develop tools for both regulators and producers who will assess potential production sites for their capacity to minimize negative impacts to protected species and habitats, reduce risk of invasive species introductions, minimizing use conflicts, evaluate risks associated with disease and genetic risks of breeding between escaped farmed and wild populations, improve our understanding of existing uses to minimize conflict with other user groups, and minimize risks to water quality.

• Action 1.2.2 DOC NOAA (NOS, SG, NMFS) will support the development of models that account for the potential effects from environmental change on aquaculture production in the United States.

• Action 1.2.3 DOC NOAA (NOS, NMFS), DOI (USGS), and EPA will support research on permitting processes and provide tools that inform State and local regulators developing guidance on potential new locations aquaculture facilities can expand to improve environmental quality in the Great Lakes and marine waters.

• Action 1.2.4 DOI (USFWS, USGS), and DOC NOAA (NMFS) will develop methods and best practices to use for recreational opportunities, and/or increase commercial fisheries harvests.

§ 136a-1  Reregistration of registered pesticides

(c) Phase one

(1) Priority for reregistration

For purposes of the reregistration of the pesticides described in subsection (a), the Administrator shall list the active ingredients of pesticides and shall give priority to, among others, active ingredients (other than active ingredients for which registration standards have been issued before the effective date of this section) that-

(B) may result in residues of potential toxicological concern in potable ground water, edible fish, or shellfish;

Subchapter I Research and Related Programs

§ 1251 Congressional declaration of goals and policy

(a) Restoration and maintenance of chemical, physical and biological integrity of Nation's waters; national goals for achievement of objective

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter-

(4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;

(5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State;

(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution.

Subchapter III Standards and Enforcement

§ 1311 Effluent limitations

(a) Illegality of pollutant discharges except in compliance with law

Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.

(b) Timetable for achievement of objectives

In order to carry out the objective of this chapter there shall be achieved-

(1)(A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 1314(b) of this title, or (ii) in the case of a discharge into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, which shall require compliance with any applicable pretreatment requirements and any requirements under section 1317 of this title; 

(2)(A) for pollutants identified in subparagraphs (C), (D), and (F) of this paragraph, effluent limitations for categories and classes of point sources, other than publicly owned treatment 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 pursuant to section 1314(b)(2) of this title, which such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds, on the basis of information available to him (including information developed pursuant to section 1325 of this title), that such elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant to section 1314(b)(2) of this title, or (ii) 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;

(g) Modifications for certain nonconventional pollutants

(1) General authority

The Administrator, with the concurrence of the State, may modify the requirements of subsection (b)(2)(A) of this section with respect to the discharge from any point source of ammonia, chlorine, color, iron, and total phenols (4AAP) (when determined by the Administrator to be a pollutant covered by subsection (b)(2)(F)) 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-

(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 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 toxicity, chronic toxicity (including carcinogenicity, mutagenicity or teratogenicity), or synergistic propensities.

(h) Modification of secondary treatment requirements

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 discharge of any pollutant from a publicly owned treatment works into marine waters...

For the purposes of this subsection the phrase "the discharge of any pollutant into marine waters" refers 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...

No permit issued under this subsection shall authorize the discharge of sewage sludge into marine waters...

No permit issued under this subsection shall authorize the discharge of any pollutant into saline estuarine waters which at the time of application do not support a balanced indigenous population of shellfish, fish and wildlife, or allow recreation in and on the waters or which exhibit ambient 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...

§ 1312 Water quality related effluent limitations

(a) Establishment

Whenever, in the judgment of the Administrator or as identified under section 1314(l) of this title, discharges of pollutants from a point source or group of point sources, with the application of effluent limitations required under section 1311(b)(2) of this title, would interfere with the attainment or maintenance 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 propagation 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 expected to contribute to the attainment or maintenance of such water quality.

§ 1313 Water quality standards and implementation 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 awaiting 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 Administrator 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 such notification, the Administrator shall promulgate 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 submit 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 inconsistent with the applicable requirements of this Act as in effect immediately prior to October 18, 1972. If the Administrator makes such a determination 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 after such notification, the Administrator shall promulgate 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 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 after 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 immediately prior to October 18, 1972, if-

(A) the State fails to submit water quality standards within the times prescribed in subsection (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 water quality standard published in a proposed regulation not later than one hundred and ninety days after the date he publishes any such proposed standard, unless prior to such promulgation, such State has adopted a water quality standard which the Administrator determines to be in accordance with subsection (a) of this section.

§ 1314 Information and guidelines

(a) Criteria development and publication

(9) Revised criteria for coastal recreation waters.-

(A) In general.-Not later than 5 years after October 10, 2000, after consultation and in cooperation with appropriate Federal, State, tribal, and local officials (including local health officials), the Administrator shall publish new or revised water quality criteria for pathogens and pathogen indicators (including a revised list of testing methods, as appropriate), based on the results of the studies conducted under section 1254(v) of this title, for the purpose of protecting human health in coastal recreation waters.

(B) Reviews.-Not later than the date that is 5 years after the date of publication of water quality criteria under this paragraph, and at least once every 5 years thereafter, the Administrator shall review and, as necessary, revise the water quality criteria.

(b) Effluent limitation guidelines

For the purpose of adopting or revising effluent limitations under this chapter the Administrator shall, after consultation with appropriate Federal and State agencies and other interested persons, publish within one year of October 18, 1972, regulations, providing guidelines for effluent limitations, and, at least annually thereafter, revise, if appropriate, such regulations. Such regulations shall-

(1)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources (other than publicly owned treatment works); and

(B) specify factors to be taken into account in determining the control measures and practices to be applicable to point sources (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 1311 of this title shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate;

(2)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources (other than publicly owned treatment works); and

(B) specify factors to be taken into account in determining the best measures and practices available to comply with subsection (b)(2) of section 1311 of this title to be applicable to any point source (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate;

(3) identify control measures and practices available to eliminate the discharge of pollutants from categories and classes of point sources, taking into account the cost of achieving such elimination of the discharge of pollutants; and

(4)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best conventional pollutant control technology (including measures and practices) for classes and categories of point sources (other than publicly owned treatment works); and

(B) specify factors to be taken into account in determining the best conventional pollutant control technology measures and practices to comply with section 1311(b)(2)(E) of this title to be applicable to any point source (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best conventional pollutant control technology (including measures and practices) shall include consideration of the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived, and the comparison of the cost and level of reduction of such pollutants from the discharge from publicly owned treatment works to the cost and level of reduction of such pollutants from a class or category of industrial sources, and shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate.

(f) Identification and evaluation of nonpoint sources of pollution; processes, procedures, and methods to control pollution

The Administrator, after consultation with appropriate Federal and State agencies and other interested persons, shall issue to appropriate Federal agencies, the States, water pollution control agencies, and agencies designated under section 1288 of this title, within one year after October 18, 1972 (and from time to time thereafter) information including (1) guidelines for identifying and evaluating the nature and extent of nonpoint sources of pollutants, and (2) processes, procedures, and methods to control pollution resulting from-

(A) agricultural and silvicultural activities, including runoff from fields and crop and forest lands;

(B) mining activities, including runoff and siltation from new, currently operating, and abandoned surface and underground mines;

(C) all construction activity, including runoff from the facilities resulting from such construction;

(D) the disposal of pollutants in wells or in subsurface excavations;

(E) salt water intrusion resulting from reductions of fresh water flow from any cause, including extraction of ground water, irrigation, obstruction, and diversion; and

(F) changes in the movement, flow, or circulation of any navigable waters or ground waters, including changes caused by the construction of dams, levees, channels, causeways, or flow diversion facilities.

(k) Agreements with Secretaries of Agriculture, Army, and the Interior to provide maximum utilization of programs to achieve and maintain water quality; transfer of funds; authorization of appropriations

(1) The Administrator shall enter into agreements with the Secretary of Agriculture, the Secretary of the Army, and the Secretary of the Interior, and the heads of such other departments, agencies, and instrumentalities of the United States as the Administrator determines, to provide for the maximum utilization of other Federal laws and programs for the purpose of achieving and maintaining water quality through appropriate implementation of plans approved under section 1288 of this title and nonpoint source pollution management programs approved under section 1329 of this title.

(m) Schedule for review of guidelines

(1) Publication

Within 12 months after February 4, 1987, and biennially thereafter, the Administrator shall publish in the Federal Register a plan which shall-

(A) establish a schedule for the annual review and revision of promulgated effluent guidelines, in accordance with subsection (b) of this section;

(B) identify categories of sources discharging toxic or nonconventional pollutants for which guidelines under subsection (b)(2) of this section and section 1316 of this title have not previously been published; and

(C) establish a schedule for promulgation of effluent guidelines for categories identified in subparagraph (B), under which promulgation of such guidelines shall be no later than 4 years after February 4, 1987, for categories identified in the first published plan or 3 years after the publication of the plan for categories identified in later published plans.

(2) Public review

The Administrator shall provide for public review and comment on the plan prior to final publication.

§ 1316 National standards of performance

(b) Categories of sources; Federal standards of performance 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 categories of sources ...

(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 regulations establishing Federal standards of performance for new sources within such category. The Administrator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promulgate, within one hundred and twenty days after publication 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 following the procedure required by this subsection for promulgation of such standards. Standards of performance, or revisions thereof, shall become effective upon promulgation. In establishing or revising Federal standards of performance for new sources under this section, the Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality, environmental impact and energy requirements.

§ 1328 Aquaculture

(a) Authority to permit discharge of specific pollutants

The Administrator is authorized, after public hearings, to permit the discharge of a specific pollutant or pollutants under controlled conditions associated with an approved aquaculture project under Federal or State supervision pursuant to section 1342 of this title.

(b) Procedures and guidelines

The Administrator shall by regulation establish any procedures and guidelines which the Administrator deems necessary to carry out this section. Such regulations shall require the application to such discharge of each criterion, factor, procedure, and requirement applicable to a permit issued under section 1342 of this title, as the Administrator determines necessary to carry out the objective of this chapter.

(c) State administration

Each State desiring to administer its own permit program within its jurisdiction for discharge of a specific pollutant or pollutants under controlled conditions associated with an approved aquaculture project may do so if upon submission of such program the Administrator determines such program is adequate to carry out the objective of this chapter.

Part 122 General Provisions: EPA Administered Permit Programs - The National Pollutant Discharge Elimination System

Subpart B - Permit Application and Special NPDES Program Requirements

§ 122.24   Concentrated aquatic animal production facilities (applicable to State NPDES programs, see §123.25).

(a) Permit requirement.  Concentrated aquatic animal production facilities, as defined in this section, are point sources subject to the NPDES permit program.

(b) Definition. Concentrated aquatic animal production facility  means a hatchery, fish farm, or other facility which meets the criteria in appendix C of this part, or which the Director designates under paragraph (c) of this section. 

(c) Case-by-case designation of concentrated aquatic animal production facilities. 

(1) The Director may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to waters of the United States. In making this designation the Director shall consider the following factors: 

(i) The location and quality of the receiving waters of the United States; 

(ii) The holding, feeding, and production capacities of the facility; 

(iii) The quantity and nature of the pollutants reaching waters of the United States; and 

(iv) Other relevant factors.

§ 122.25 Aquaculture projects (applicable to State NPDES programs, see § 123.25).

(a) Permit requirement.  Discharges into aquaculture projects, as defined in this section, are subject to the NPDES permit program through section 318 of CWA, and in accordance with 40 CFR part 125, subpart B. 

(b) Definitions. 

(1) Aquaculture project  means a defined managed water area which uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater, estuarine, or marine plants or animals. 

(2) Designated project area  means the portions of the waters of the United States within which the permittee or permit applicant plans to confine the cultivated species, using a method or plan or operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants, and be harvested within a defined geographic area.

Subpart D Transfer, Modification, Revocation and Reissuance, and Termination of Permits

Appendix C to Part 122 - Criteria for Determining a Concentrated Aquatic Animal Production Facility (§ 122.24) 

A hatchery, fish farm, or other facility is a concentrated aquatic animal production facility for purposes of § 122.24 if it contains, grows, or holds aquatic animals in either of the following categories:

(a) Cold water fish species or other cold water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year but does not include: 

(1) Facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year; and 

(2) Facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding. 

(b) Warm water fish species or other warm water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year, but does not include: 

(1) Closed ponds which discharge only during periods of excess runoff; or 

(2) Facilities which produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) of aquatic animals per year. 

“Cold water aquatic animals”   include, but are not limited to, the Salmonidae family of fish; e.g., trout and salmon. 

“Warm water aquatic animals”   include, but are not limited to, the Ameiuride, Centrarchidae and Cyprinidae families of fish; e.g., respectively, catfish, sunfish and minnows.

Part 401 General Provisions

§ 401.10 Scope and purpose.

Regulations promulgated or proposed under parts 402 through 699 of this subchapter prescribe effluent limitations guidelines for existing sources, standards of performance for new sources and pretreatment standards for new and existing sources pursuant to sections 301, 304 (b) and (c), 306 (b) and (c), 307 (b) and (c) and 316(b) of the Federal Water Pollution Control Act, as amended (the “Act”), 33 U.S.C. 1251, 1311, 1314 (b) and (c), 1316 (b) and (c), 1317 (b) and (c) and 1326(b); 86 Stat. 816; Pub. L. 92-500. Point sources of discharges of pollutants are required to comply with these regulations, where applicable, and permits issued by States or the Environmental Protection Agency (EPA) under the National Pollutant Discharge Elimination System (NPDES) established pursuant to section 402 of the Act must be conditioned upon compliance with applicable requirements of sections 301 and 306 (as well as certain other requirements). This part 401 sets forth the legal authority and general definitions which will apply to all regulations issued concerning specific classes and categories of point sources under parts 402 through 699 of this subchapter which follow. In certain instances the regulations applicable to a particular point source category or subcategory will contain more specialized definitions. Except as provided in § 401.17, in the case of any conflict between regulations issued under this part 401 and regulations issued under parts 402 through 499 of this subchapter, the latter more specific regulations shall apply.

Part 451 Concentrated Aquatic Animal Production Point Source Category

§ 451.3 General reporting requirements.

(a) Drugs.  Except as noted below, a permittee subject to this part must notify the permitting authority of the use in a concentrated aquatic animal production facility subject to this part of any investigational new animal drug (INAD) or any extralabel drug use where such a use may lead to a discharge of the drug to waters of the U.S. Reporting is not required for an INAD or extralabel drug use that has been previously approved by FDA for a different species or disease if the INAD or extralabel use is at or below the approved dosage and involves similar conditions of use. 

(b) Failure in, or damage to, the structure of an aquatic animal containment system resulting in an unanticipated material discharge of pollutants to waters of the U.S. In accordance with the following procedures, any permittee subject to this part must notify the permitting authority when there is a reportable failure. 

(c) In the event a spill of drugs, pesticides or feed occurs that results in a discharge to waters of the U.S., the permittee must provide an oral report of the spill to the permitting authority within 24 hours of its occurrence and a written report within 7 days. The report shall include the identity and quantity of the material spilled.

Subpart A Flow-Through and Recirculating Systems Subcategory

§ 451.11 Effluent limitations attainable by the application of the best practicable control technology currently available (BPT).

Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart must meet the following requirements, expressed as practices (or any modification to these requirements as determined by the permitting authority based on its exercise of its best professional judgment) representing the application of BPT: 

(a) Solids control.  The permittee must: 

(1) Employ efficient feed management and feeding strategies that limit feed input to the minimum amount reasonably necessary to achieve production goals and sustain targeted rates of aquatic animal growth in order to minimize potential discharges of uneaten feed and waste products to waters of the U.S. 

(2) In order to minimize the discharge of accumulated solids from settling ponds and basins and production systems, identify and implement procedures for routine cleaning of rearing units and off-line settling basins, and procedures to minimize any discharge of accumulated solids during the inventorying, grading and harvesting aquatic animals in the production system. 

(3) Remove and dispose of aquatic animal mortalities properly on a regular basis to prevent discharge to waters of the U.S., except in cases where the permitting authority authorizes such discharge in order to benefit the aquatic environment. 

(b) Materials storage.  The permittee must: 

(1) Ensure proper storage of drugs, pesticides, and feed in a manner designed to prevent spills that may result in the discharge of drugs, pesticides or feed to waters of the U.S. 

(2) Implement procedures for properly containing, cleaning, and disposing of any spilled material. 

(c) Structural maintenance.  The permittee must: 

(1) Inspect the production system and the wastewater treatment system on a routine basis in order to identify and promptly repair any damage. 

(2) Conduct regular maintenance of the production system and the wastewater treatment system in order to ensure that they are properly functioning.

AFS. 2019. "Factsheet: Mythbusting Marine Aquaculture". American Fisheries Society, Bethesda, Maryland. Aquaculture. June 6, 2019. https://fisheries.org/2019/06/fact-sheet-mythbusting-marine-aquaculture/ 

EPA-FIFRA. 2023. United States Environmental Protection Agency Enforcement website "Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Facilities". https://www.epa.gov/enforcement/federal-insecticide-fungicide-and-rodenticide-act-fifra-and-federal-facilities; Last updated on March 7, 2023.

EPA-NPDES. 2022. United States Environmental Protection Agency National Pollutant Discharge Elimination System (NPDES) website "NPDES State Program Authorization Information". https://www.epa.gov/npdes/npdes-state-program-authorization-information; Last updated on October 3, 2022.

USCA9.  2018.  Olympic Forest Coalition, a Washington corporation, Plaintiff-Appellee, v. Coast Seafoods Company, a Washington corporation, Defendant-Appellant. Opinion. United States Court of Appeals for the Ninth Circuit. No. 16-35957D.C. No. 3:16-cv-05068-RBL. https://cases.justia.com/federal/appellate-courts/ca9/16-35957/16-35957-2018-03-09.pdf?ts=1520618474