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301(h) Waivers

The Federal Clean Water Act requires that all municipal wastewater treatment plants use primary treatment (using gravity to separate solids from liquids) and secondary treatment (using special strains of aerobic bacteria to break down the organic waste left after primary treatment) before discharging their water. In some cases, however, sewer agencies have been able to use a process known as a 301(h) waiver to get permission to discharge their wastewater with less than full secondary treatment. The Orange County Sanitation District (OCSD) in Orange County, California is an example of an agency that, until recently, had received such a waiver. OCSD previously treated about half of their wastewater using secondary treatment and the remainder using only advanced primary treatment. The two wastewater streams were then combined and pumped out a 4-1/2 mile-long outfall pipe into the ocean. The OCSD Board of Directors voted in July 2002 to abandon their waiver and construct secondary treatment facilities. The necessary facilities became fully operational in 2012.

EPA has published a list of dischargers that have a 301(h) waiver. Note that the date of this list is 1994, so there are no doubt additions to or deletions from the list.

The following information on 301(h) waivers is taken from EPA's website. This information is also dated 1994, so there are no doubt several facilities whose status has changed since that time.


In 1972, Congress passed the Federal Water Pollution Control Act Amendments, which required Publicly Owned Treatment Works (POTWs) to achieve secondary treatment capability by 1977. After passage, some municipalities with POTWs that discharged into marine waters argued that this requirement might be unnecessary on the grounds that marine POTWs usually discharge into deeper waters with large tides and substantial currents, which allow for greater dilution and dispersion than their freshwater counterparts. As a result, Congress added section 301(h) to the Clean Water Act in 1977, allowing for a case-by-case review of treatment requirements for marine dischargers that applied by September 13, 1979. Eligible POTW applicants that met the set of environmentally stringent criteria in section 301(h) would receive a modified National Pollutant Discharge Elimination System (NPDES) permit waiving the secondary treatment requirements for the conventional pollutants biochemical oxygen demand (BOD), suspended solids (SS), and pH. EPA issued regulations and a technical support document for the 301(h) program in 1979.

Since then, section 301(h) has been amended as follows:

  • The 1981 Municipal Waste Water Treatment Construction Grants Amendments extended the deadline for applications to December 29, 1982, and removed the requirement that the applicant have a pre-existing discharge. In addition, they allowed the POTWs that had already achieved secondary treatment to apply and prohibited the granting of 301(h) modified permits for discharge of sewage sludge to the ocean.

The regulations were revised in 1982 to address these changes in legislation and to reflect program experience.

  • Section 303 of the Water Quality Act of 1987 added a number of new requirements and prohibitions to the program. All POTWs applying for a 301(h) modified permit must achieve primary or equivalent treatment to remove at least 30 percent of conventional pollutants and must meet water quality criteria. Further, those POTWs serving a population of more than 50,000 with industrial sources of toxic pollutants must implement an urban area pretreatment program. Also, POTWs discharging to stressed estuaries are not eligible for a 301(h) waiver.

Size of the Program

EPA received 208 301(h) waiver applications prior to the December 29, 1982 deadline for applications. The status of the 208 applications is as follows:

  • 87 applicants have withdrawn or are no longer eligible.
  • 76 applications have been denied by EPA.
  • 45 applicants and permittees remain, including 36 waiver recipients and 9 applicants with decisions pending.

Us map.gif

The 9 applications awaiting a decision include some that were tentatively denied and are being revised by the applicants. As you can see from the attached map, the applicants are clustered in only a few states ­ California, Maine, New Hampshire, Massachusetts, Alaska, and Hawaii ­ in addition to the U.S. territories of Puerto Rico, American Samoa, Guam, the Virgin Islands, and Palau.

The majority of 301(h) waiver recipients are small POTWs that discharge less than 5 million gallons per day (MGD). Less than half of the 45 applicants/permittees are located within the continental United States in four states (California, Maine, Massachusetts, and New Hampshire). Beyond the continental United States, there are 9 applicants in Alaska 2 in Hawaii, 6 in Puerto Rico, and 8 in U.S. territorial islands in the Pacific and Atlantic Oceans.

Existing Regulatory and Environmental Requirements

A POTW applying for a 301(h) waiver must meet the criteria established in the Clean Water Act, including:

  • Existence of and compliance with water quality standards.
  • Protection and propagation of a balanced indigenous population of fish, shellfish, and wildlife.
  • Allowance of recreational activities.
  • Establishment of a monitoring program.
  • Satisfactory toxics control programs, including an approved pretreatment program.
  • No additional treatment requirements for other sources as a result of the waiver.
  • No increase in effluent volume or amount of pollutants discharged above limits in 301(h) modified permit.
  • Protection of public water supplies.

A POTW receiving a 301(h) modified permit is required to monitor the impact of its discharge on the water quality and marine biota. EPA uses the POTWs monitoring results to evaluate applications for permit renewal and compliance with NPDES permit terms and conditions.

EPA's Final Regulations

To fulfill the requirements of section 303 of the Water Quality Act, EPA has revised the 301(h) regulations, including the following:

  • A POTW receiving a 301(h) modified permit must achieve primary or equivalent treatment to remove at least 30 percent of BOD and 30 percent of SS. At least 10 301(h) applicants or permittees that are not yet at primary treatment will need to upgrade their facilities.
  • A POTW with a service population of 50,000 or more and industrial sources of toxic pollutants must meet the new requirements of an urban area pretreatment program. At least 13 applicants or permittees may be affected by this requirement. For each toxic pollutant introduced by an industrial discharger, the applicant must demonstrate that it has in effect either (1) an applicable pretreatment requirement or (2) a program that achieves secondary removal equivalency. To fulfill the urban pretreatment requirement, POTWs must also demonstrate that industrial sources are in compliance with all pretreatment requirements and that the requirements are enforced.
  • Applicants are required to demonstrate compliance with water quality criteria established under section 304(a)(1) of the Clean Water Act. Where a corresponding state numerical water quality standard exists for a specific pollutant, applicants would need to meet this standard instead of the section 304(a)(1) criterion.
  • Applicants and permittees with tentative or final approval prior to the enactment of the Water Quality Act (statutorily grandfathered) must meet the above primary and urban area pretreatment requirements by August 9, 1996 or upon permit renewal, whichever is later. All other applicants or permittees must meet these requirements by August 9, 1996.
  • POTWs discharging into a stressed saline estuary or the New York Bight Apex are not eligible for a 301(h) waiver.
  • The scope of the monitoring program is limited to those investigations necessary to study the effects of the discharge.

EPA published proposed revisions to 301(h) regulations in the Federal Register on January 24, 1991, and held a hearing on the proposed regulations on March 7, 1991, in Washington, D.C. In promulgating the final revised regulations, EPA considered all written and verbal comments on the proposed regulations and on the amended technical support document that were submitted to the Agency during the public comment period. The final revisions were signed by the Administrator on July 14, 1994. The final regulations were published in the Federal Register on August 9, 1994. An amended technical support document has been prepared to accompany the final rule.

Additional sources of information on the 301(h) program include:

  • Amended 301(h) Technical Support Document (1994).
  • EPA Federal Regulations at 40 CFR Part 125, Subpart G.
  • Information Collection Request Supporting Statement (1993).
  • Various technical guidance documents.


Much of the text for this article was taken from:

Amendments to Regulations Issued, the Clean Water Act Section 301 (h) Program

This article is part of a series on Clean Water which looks at various threats to the water quality of our oceans, and the negative impacts polluted waters can have on the environment and human health.

For information about laws, policies, programs and conditions impacting water quality in a specific state, please visit Surfrider's State of the Beach report to find the State Report for that state, and click on the "Water Quality" indicator link.