Clean Water Act Explainer: Section 402

Law Office of Frank Hammond • November 12, 2024

Enacted in 1972 by the Congress, the Clean Water Act (CWA) is aimed at regulating water pollution to protect and maintain the integrity of the nation's waters. The primary objective of this Act is to restore and preserve the chemical, physical, and biological properties of water bodies across the country. 


Section 402 of the Clean Water Act establishes the National Pollutant Discharge Elimination System (NPDES) permit program, as outlined by the EPA, which is responsible for controlling the discharge of pollutants into navigable waters and ensuring compliance with wastewater standards. 


At Law Office of Frank Hammond, located in Portland, Oregon, we are dedicated to helping businesses and individuals understand the provisions of the Clean Water Act, particularly in obtaining and managing NPDES permits. 

Overview of Section 402

Section 402 of the Clean Water Act is a key component for regulating water pollution in the United States. The primary consideration outlined in Section 402 is the establishment of the National Pollutant Discharge Elimination System (NPDES) permit program, which aims to control the discharge of pollutants into navigable waters and ensure that any discharge complies with the EPA's environmental standards for water quality and public health. 

Breakdown of the NPDES Permit Program

Under the NPDES permit program, any business or corporate entity desiring to discharge pollutants into U.S. waters must first obtain a permit. This permit outlines specific restrictions and guidelines for permissible discharges, including the types and quantities of pollutants that can be released, as well as monitoring and reporting requirements. 


The program covers a wide range of discharges from municipal, industrial, commercial, and agricultural sources. NPDES permits may also impose additional conditions to help mitigate environmental harm, such as requiring the implementation of specific best management practices (BMPs) or pollutant reduction plans.


The NPDES permit program also focuses on preventing unregulated discharges. Violating the permit terms, including unauthorized discharges or failure to comply with reporting conditions, can result in substantial penalties. This is meant to help ensure that regulatory bodies can hold polluters accountable and protect water resources for future generations.

Types of Discharges Regulated by NDPES Permits

The NPDES permit program is fundamental for managing discharges that have the potential to affect the quality of U.S. waters. These permits are designed to help ensure that any release of pollutants into navigable waters is strictly monitored and regulated. Some of the types of discharges that are regulated under NPDES permits include:


  • Municipal wastewater discharges: This includes wastewater from domestic or community sources, such as sewage treatment plants. Permits help ensure that treated wastewater meets the established standards before being released into water bodies.
  • Industrial discharges: Facilities in manufacturing or processing sectors must manage wastewater produced from their operations. Permits specify the allowable levels of pollutants such as heavy metals, chemicals, and other industrial byproducts.
  • Stormwater discharges: Runoff from construction sites and other activities that collect pollutants as it flows over land is regulated. This includes both municipal separate storm sewer systems (MS4s) and construction sites larger than one acre.
  • Agricultural discharges: Animal feeding operations and concentrated animal feeding operations (CAFOs) that discharge manure or other waste into water bodies are required to have permits to limit nutrient pollution, such as nitrogen and phosphorus runoff.
  • Mining operations: These involve discharges such as sediment-laden water or heavy metal contaminants from mining activities. NDPES permits help control runoff and the impact it has on aquatic environments.
  • Thermal discharges: Often from power plants or industrial facilities, these are regulated to help minimize thermal pollution that can disrupt aquatic ecosystems by altering water temperatures.
  • Aquatic animal production facilities: Operations such as fish farms are heavily regulated to make sure discharges of waste or unutilized feed do not impact water quality.


The comprehensive regulation of these diverse discharge types under the NPDES permits significantly contributes to the preservation and improvement of water quality standards across the United States, safeguarding aquatic ecosystems and public health.

Additional Regulations for NDPES Permits

Although the NPDES permit program covers a broad range of discharges, there are specific regulations that may apply to certain industries or sources. Certain industries often require additional permits due to their significant potential impact on water quality. 


For example, wastewater treatment facilities typically must obtain a National Pollutant Discharge Elimination System (NPDES) permit, which regulates the discharge of pollutants into navigable waters, and large animal feeding operations may be subject to state-specific regulations as well as a Concentrated Animal Feeding Operation (CAFO) permit, which ensures that waste management practices meet environmental standards. 


These permits are critical in safeguarding water quality and preventing contamination that could harm ecosystems and public health.

Potential Penalties for Violating an NDPES Permit

The consequences of non-compliance with NPDES permits can be severe. The EPA has the authority to issue administrative, civil, and criminal penalties for violations of Section 402 regulations, including:


  • Administrative penalties: These are fines issued by the EPA without having to go through a court process. They may range from $10,000 per day for minor infractions up to $75,000 per day for more serious violations.
  • Civil penalties: These are monetary fines imposed by a court as a result of an enforcement action taken by the EPA. Depending on the severity of the violation, these penalties could reach up to $50,000 per day.
  • Criminal penalties: In cases of intentional or reckless violations, individuals and organizations may face criminal charges, including fines and imprisonment.

How to Qualify for an NPDES Permit

To be eligible for an NPDES permit, applicants must obtain a National Pollutant Discharge Elimination System (NPDES) ID number from the EPA. You can apply for this ID using the online application form available on the EPA website or by contacting your local EPA regional office.


Once you have received your NPDES ID number, you are required to submit an official permit application detailing your planned discharge activities and how they comply with water quality standards. This process may involve several steps, including consultations with state and federal agencies and public comment periods before final approval is granted. 


It is important to note that obtaining an NPDES permit can be a lengthy and complicated process, which is why it is essential to work with experienced legal professionals who can guide you through the application and compliance processes.

Consult with an Experienced Attorney

Section 402 of the Clean Water Act plays a vital role in regulating water pollution in the United States. The NPDES permit program establishes standards for controlling discharge into U.S. waters and ensuring compliance with environmental regulations. Businesses and corporate entities should understand the requirements set forth by Section 402 and obtain the proper permits to avoid potential penalties for non-compliance. 


At Law Office of Frank Hammond, we have extensive experience in helping clients understand the complex regulations of the Clean Water Act. Our environmental litigation attorney can help you manage NPDES permits to help ensure compliance with EPA standards and protect your operations from potential penalties. 


Located in Portland, Oregon, we serve clients throughout the state, including Eugene, Salem, Astoria, Newport, Bandon, Medford, Bend, and beyond Contact us to schedule a free consultation.

Navigating the Legal Maze: Securing Permits for a New Landfill in Rural Oregon

August 12, 2025
Many environmental and legal challenges are associated with the establishment of a new landfill facility in rural Oregon. As a lawyer specializing in environmental law and land use, I have guided clients through the intricate process of obtaining the necessary permits for landfill projects. Here's summary of the complex journey to secure these permissions for a new landfill facility in Oregon. 1. Understanding the Environmental Concerns Oregon's environmental protection regulations are stringent and designed to protect the state's beautiful and diverse ecology. New landfills must adhere to strict guidelines to mitigate potential harm to the environment. A. Preliminary Site Assessment The first step is a detailed assessment of the proposed site's environmental aspects. This includes studying the local ecology, groundwater conditions, and evaluating potential risks to nearby communities. B. NEPA If the project requires federal permits or action, the developer must work with agencies to obtain compliance with the National Environmental Policy Act (NEPA). This can be a time consuming and complex process that will be addressed in a separate article. C. Other Federal Permits D e pending on the site, several types of federal permits or actions could be involved. For example, if the site is contiguous with a navigable water, federal wetland permitting might be required. Similarly, if endangered species are in the area, action under the Endangered Species Act might be needed. 2. Zoning and Land Use Regulations Zoning and land use issues can be a complex area to navigate. Although landfills are allowed under state law in rural areas, rural areas often have unique zoning laws that must be carefully interpreted and complied with. A. Local Zoning Compliance You must ensure that the proposed site complies with local zoning ordinances, which will require a conditional use permit. Issues ranging from compliance with environmental concerns to traffic impacts will be at issue. Odor is often also a major consideration for landfills in this process. Engaging local authorities and the community early in the process is essential for success. Moreover, conditional use permits are subject to hearings at the local level, and the results can be appealed to the Land Use Board of Appeals (LUBA) and the appellate courts. B. Land Use Compatibility Statement (LUCS) A LUCS must be obtained, indicating that the proposed use of the property is consistent with the local government's comprehensive plan. This should follow from the conditional use permit. 3. State Regulations and Permits State permits are often the most challenging aspect of the process, encompassing a range of areas including: A. Solid Waste Permit The Department of Environmental Quality (DEQ) will require a solid waste permit, detailing how the landfill will be constructed, operated, and eventually closed. ORS 459 and companion rules describe the requirements for this permit. B. Water Quality Permits Given the potential impact on local water resources, permits related to stormwater discharge and wastewater management must be obtained. The applicant will, for example, have to prepare a plan showing how it will manage landfill leachate. C. Air Quality Permits Oregon's DEQ also regulates air emissions from landfills. An air quality permit detailing the landfill's potential emissions and control measures is required. 4. Community Engagement Community concerns can significantly impact the permitting process. Holding public hearings and engaging with residents to address their concerns is vital to securing the necessary permits. 5. Conclusion: A Collaborative Effort Securing the necessary permits for a landfill in rural Oregon that serves urban areas is a multifaceted process that requires collaboration between legal experts, environmental consultants, and local authorities. While the permitting process may seem daunting, a well-prepared legal strategy can guide you through these complexities, ensuring that the proposed landfill complies with all legal and environmental regulations. By considering the environmental impact and working closely with local authorities and the community, we can build facilities that align with Oregon's commitment to environmental stewardship. If you are considering such a project, seeking professional legal guidance early in the process can prove invaluable in navigating the legal maze that surrounds the establishment of a new landfill facility in rural Oregon.

What to do When DEQ Knocks at Your Door

August 12, 2025
The Risk. If you operate and industrial or commercial site, you are always at risk of offending the Oregon Department of Environmental Quality (DEQ). If you are discharging a pollutant to waters of the state (a defined term), you might have a problem with the Clean Water Act's (CWA) NPDES program. If you are emitting a pollutant, you might have a problem with clean air regulations. If your land has hazardous waste deposits, you might have a problem under CERCLA. Whatever it is, you could come under scrutiny by DEQ. If that happens, several general steps apply. First Steps. DEQ will first try to work with you to resolve the violation, if any, by imposing additional regulation on you. For example, the agency might require you to come into compliance or get a permit, like coverage under the general stormwater permit 1200-Z. Or DEQ might require you not to emit the offending pollutant. You can and should negotiate with DEQ during this period. File a Notice of Appeal. If DEQ doesn't like your response, it will issue a notice of violation (NOV) and enforcement order. DEQ will generally impose a fine in addition to requiring compliance with the order. That gives you two choices. First, you can comply with the NOV and pay the fine. But second, you can choose to contest the NOV. If you take the second approach, you must file a notice of appeal withing 20 days. This period cannot be extended. With the notice of appeal, you can request an informal conference with DEQ to work through the issues. DEQ will schedule the conference and you will have the opportunity for further negotiations. If, however, DEQ will not settle with you the case will be referred to an administrative law judge for a hearing and decision on the order. If you don't like that result, the next step is an appeal to the Oregon Court of Appeals. Get Expert Help.  Negotiating with DEQ at any step, and litigating the NOV, is a tricky business. Essentially you will be engaging in complex litigation. Your best bet is to get an experienced environmental lawyer at the start who can guide you through the process. Remember dealing with DEQ is a complex and risky process. It is best to have expert help at the start. I can provide that help. I have been working for and against DEQ for 20 years, and I am experienced with administrative and environmental law. I currently am in litigation with DEQ for its regulatory overreach. Please give me a call if you would like to discuss a problem with DEQ.

Environmental Law for Portland Startups and Investors

By Law Office of Frank Hammond • February 7, 2025
Portland, Oregon, is often described as an area of natural beauty. Coupled with the state's commitment to developing sustainable and eco-conscious practices, business startups and investors are required to comply with environmental laws and regulations if they want to grow their businesses and succeed. Whether you're launching a new enterprise, investing in local development, or expanding an existing business, it's essential to understand Oregon's environmental laws and how they can impact your business venture to demonstrate a commitment to the values of your state's community. At Law Office of Frank Hammond , we strive to help you understand your rights and obligations for complying with federal and state environmental law.

Clean Water Act Explainer: Section 403

By Law Office of Frank Hammond • January 7, 2025
The Clean Water Act (CWA) is a federal legislation passed in 1972 that is aimed at improving and protecting water quality throughout the United States. While Section 402 deals with the National Pollutant Discharge Elimination System (NPDES), Section 403 introduces additional requirements for discharges, specifically in territorial seas, contiguous zones, and oceans. At Law Office of Frank Hammond in Portland, Oregon, we're committed to helping businesses, developers, and municipalities understand their obligations under the CWA and operate responsibly to avoid legal complications. Here, we strive to break down what Section 403 entails, how it interacts with other provisions of the Clean Water Act, and its implications for business and corporate entities.

Biodiversity and the Law

By Law Office of Frank Hammond • January 7, 2025
The term biodiversity refers to the variety of life on Earth, including all living organisms such as plants, animals, and microorganisms, as well as their genetic diversity. Biodiversity is essential for maintaining healthy ecosystems and providing numerous benefits to humans, such as clean air and water, food and medicine sources, and cultural values. However, with increasing human activities such as deforestation, pollution, overharvesting of resources, and climate change, biodiversity is facing significant threats worldwide. To protect and conserve biodiversity effectively, there are various laws and regulations in place at local, state, and national, levels.

Clean Water Act Explainer: Section 401

By Law Office of Frank Hammond • November 8, 2024
The Clean Water Act (CWA) was established by the Congress and acts as the federal baseline for water quality standards in the United States and state authority regarding environmental protection. According to the Environmental Protection Agency, Section 401 of the Clean Water Act outlines key requirements for states and authorized tribes to protect the water quality of federally regulated waters through federally issued permits. At Law Office of Frank Hammond , our attorney is experienced in helping industry and large organizations understand their responsibilities for maintaining water quality and complying with the regulations laid out in Section 401 of the Clean Water Act.

6PPD-Q and You

April 23, 2024
N-(1,3-dimethylbutyl)-N'-phenyl-p-phenylenediamine or 6PPD is a chemical used in tire manufacturing to prevent them from breaking down. Friction between tires and the road causes 6PPD to be released in dust. When exposed to ozone in the air, 6PPD undergoes a chemical reaction and becomes 6PPD-quinone, or simply 6PPD-q. This new chemical then gets into waterways where it has been proven to be extremely hazardous for marine life. Marine die-offs beside roadways had been noticed before, but the pollutant responsible hadn’t been figured out. 6PPD-q was first discovered as that pollutant in December 2020 by scientists at the University of Washington-Tacoma and Washington State University. Coho salmon seem the most vulnerable to 6PPD-q, but it is toxic to other fish species like rainbow trout and chinook salmon. The discovery of 6PPD-q has caused a flurry of legal activity and regulation discussions. In 2022, the EPA launched a group to research 6PPD-q and how to prevent further fish deaths. Both California and Washington have included 6PPD-q in their chemical safety programs, and Oregon has released a primary report about ways to reduce 6PPD-q runoff. Management of tire wear runoff has been included in the draft of Washington’s stormwater permits, even though 6PPD-q has not been mentioned by name. This year, the EPA released a 6PPD-q test to better assess and manage water systems. Likewise, 6PPD-q has been the subject of multiple legal cases. The Yurok, Port Gamble S’Klallam, and Puyallup tribes petitioned the EPA to prohibit the use of 6PPD in tire manufacturing due to 6PPD-q’s effects on the salmon the tribes traditionally fish. The EPA agreed to the petition and has drawn up a plan to further research 6PPD and 6PPD-q and phase its use out of tire manufacturing. Shortly after the petition was granted, the Institute for Fisheries Resources (IFR) and the Pacific Coast Federation of Fishermen’s Associations (PCFFA) filed a joint suit against multiple tire manufacturers for their use of 6PPD, which endangers animals protected by the Endangered Species Act. Similarly, the Center for Biological Diversity sent an intent to sue letter to the California Department of Transportation, the US Department of Transportation, the Oregon Division of Federal Highway Administration, the National Marine Fisheries Services, and the Secretary of Commerce for alleged inactions related to road management, which led to 6PPD-q ending up in critical salmon habitat The legal issues surrounding 6PPD and 6PPD-q are coming fast. Those in the tire industry need to stay abreast of the issue, while some have an opportunity to invest in things like 6PPD-q cleanup and green infrastructure that will help prevent 6PPD-q from getting to the fish in the first place.

DEQ To Hold Meeting on House Bill 3220

April 9, 2024
DEQ is holding a rulemaking meeting on May 9th, 2024 at 9 am, seeking to clarify House Bill 3220. HB 3220 updates Oregon’s E-Cycles program, the state’s electronics recycling program. Amendments to HB 3220 have expanded the electronics accepted, increased the minimum number of collection sites, and added requirements for improving the state’s collection network. The May 9th meeting will focus on annual reporting and coordination requirements, financial compensation, and environmental management practices. There will be time for public comment, allowing regular folks to add their input to the rulemaking process.  The rulemaking contact is Rachel Harding, at 503-929-7125.

DEQ is open for public comments on proposed rule amendments on 2023 High Hazard Rail Tank Fee

By Jason Hammond • January 4, 2024
The Oregon Department of Environmental Quality has proposed permanent changes to OAR 340-141-0290, establishing a “per tank fee” on train cars carrying oil that enter the state. Under ORS 468B.435 (13)(c), a fee of up to $20 per car is authorized, to be paid by the owner of the crude oil; the DEQ’s proposed rule would establish a fee of $19 per car. DEQ has stated the fees would be used for railroad training exercises. DEQ is open for public comments on the proposed changes by email, post, and at a public hearing. Comments will be considered until January 22, 2024, at 4 pm. Comments can be emailed to hhrfee2023@deq.oregon.gov , and mailed to: Oregon DEQ Attn: Kyrion Gray/High Hazard Rail Planning Program 700 NE Multnomah Street, Suite 600 Portland, OR 97232-4100 The public hearing is on Tuesday, January 16, 2024, on Microsoft Teams at 10 am. Teleconference phone number: +1 503-446-4951, 100054706# Phone Conference ID: 100 054 706# Meeting ID: 220 575 203 918 Participant code: VYtUiL

How Hard Is It to Set Up a Mycoremediation Facility?

By Jason Hammond • October 24, 2023
One of the issues with recycling is the number of things that can’t be recycled traditionally – plastic, Styrofoam, and so on. The amount of waste produced by our modern lives can seem impossible. However, there’s another way to break down these materials – fungi. Mycoremediation is the process of using fungi to decontaminate polluted environments and break down things like plastics and heavy metals. Fungi have highly adaptable metabolisms and enzymes that allow them to digest a wide variety of unusual substances, from medication to petroleum. For instance, fungi can suck up heavy metal pollutants from soil and water. These metals concentrate in their fruiting bodies, which can be easily removed afterward. Depending on the pollutant being broken down, the mushroom can be removed and put in a hazardous waste facility or even be safe enough to eat. Either way, using fungi to remove pollutants is much easier than other methods of environmental remediation, which can involve labor- and time-intensive things such as complete removal of polluted soil. If fungi are used to break down solid waste, the mushrooms – even if they can’t be eaten – reduce the dangers of things such as PFAS, microplastics, or methane from landfills entering the environment. Mycoremediation has the potential to massively change how we dispose of our waste, but the process is still new and unexplored. For the potential mycoremediation entrepreneur, there’s no clear permitting path from Oregon DEQ. Instead, they must navigate the conversion technology facility permit process.