Amicus Curiae Brief — Carlota Copper Co. v. Friends of Pinto Creek (No. 07-1524)

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ee No. 07-1524 JUL - 7 208

, THE CLERK ©

ia SUPREME COURT, U.S.

Supreme Court of the United States |

CARLOTA COPPER COMPANY,

Petitioner,

v.

FRIENDS OF PINTO CREEK, et al., —

Respondents.

On A PETITION FOR WRIT OF CERTIORARI TO THE

UNITED StaTEs Court OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE FOR

THE FEDERAL WATER QUALITY COALITION

IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI

DANIEL P ALBERS

Counsel of Record

FREpDRIC P ANDES

Davin T. BALLARD

BARNES & THORNBURG

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

Counsel for the Federal Water

Quality Coalition

216781 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

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TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES .........

STATEMENT OF INTEREST OF AMICUS

Scie eis sees sia na then e4e 68

REASONS FOR GRANTING THE PETITION ..

SUMMARY OF ARGUMENT ...............

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Statutory framework of the CWA and

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The Ninth Circuit’s interpretation of

section 122.4(i)(2) as potentially applying

to nonpoint sources will effectively

prohibit the issuance of permits for new

dischargers into waters subject to

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The Ninth Circuit’s interpretation of

section 122.4(i) as not allowing for offsets

will negatively affect permitting

authorities’ ability to protect and restore

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TABLE OF CITED AUTHORITIES

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CASES

Arkansc.s v. Oklahoma, 503 U.S. 91 (1992) .... 7,15

Auer v. Robbins, 519 U.S. 452 (1997) ...... 15, 16, 21

Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837

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Defenders of Wildlife v. EPA, 415 F.3d 1121

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Friends of Pinto Creek, et al. v. EPA, 504 F.3d

SEED an 64s tus céwasaeuaewe 3, 12, 20

In re: Carlota Copper Co., 2004 EPA App. LEXIS

I ea 6 iss a teebbeunnen 16, 21, 24

In re: Cities of Annandale, et al., 731 N.W.2d

Ee dink cng ane Ghade ee oaw 7

International Paper Co. v. Ouellette, 479 U.S.

Ete G Sh. anaes heheh ome cree 8

League of Wilderness Defenders v. Forsgren,

309 F.3d 1181 (9th Cir. 2002) ............. 7, 8,17

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Cited Authorities

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NRDC v. EPA, 915 F:2d 1814 (9th Cir. 1990) ... 14

Oregon Natural Resources Council v. U.S.

Forest Service, 834 F.2d 842 (9th Cir. 1987) .. 14-15

Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133 (10th Cir. 2005) ............ passim

Sierra Club v. Meiburg, 296 F.3d 1021 (11th Cir.

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1

BRIEF OF AMICUS CURIAE FOR THE FEDERAL

WATER QUALITY COALITION IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

STATEMENT OF INTEREST OF

AMICUS CURIAE '

The Federal Water Quality Coalition (the “Coalition”)

is a group of industrial companies, municipal entities,

agricultural parties, and trade associations that are

directly affected, or which have members that are

directly affected, by regulatory decisions made under

the federal Clean Water Act (the “CWA”) (33 U.S.C.

§§ 1251-1387). Coalition member entities or their

members own and operate facilities located on or near

waters of the United States. They are located both

within the Ninth Circuit’s jurisdiction, and elsewhere

throughout the country. These entities operate purcuant

to, or are applicants for, individual or general National

Pollutant Discharge Elimination System (“NPDES”)

wastewater or stormwater permits issued by EPA or, if

EPA has transferred NPDES permitting authority

pursuant to CWA § 402(b) (33 U.S.C. § 1342(b)), by state

1. Pursuant to Rule 37.6 of the Rules #? the Court, the

Coalition states that no counsel for a party authored this brief

in whole or in part, and no such counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than the Coalition,

or its counsel, made a monetary contribution to its preparation

or submission. The parties have consented to the filing of this

brief and have been given at least 10 days notice of such filing.

Their consents are being lodged herewith.

2

water quality agencies.” Before issuing NPDES permits,

EPA and state water quality agencies are required to

comply with numerous CWA provisions and regulations,

including 40 C.F-R. § 122.4(i) (“section 122.4(i)”), which

requires permitting agencies to determine whether a

new source or new discharger will cause or contribute

to a violation of water quality standards. Thre Ninth

Circuit’s interpretation of section 122.4(i), if upheld and

widely followed, will significantly disrupt the NPDES

permitting process for Coalition members throughout

the nation, as it will not only apply to mining operations

that are involved in this case, but also to energy

production, industrial processes, factories, businesses,

construction, utilities, municipal wastewater treatment,

and all the other activities that require NPDES permits.

The Coalition is filing this amicus curiae brief because

it and its members, who are involved in the above

effected activities, are concerned about the deleterious

impact that the Ninth Circuit decision may have on the

CWA permitting process and the Coalition’s members.

2. 45 states are currently authorized to administer NPDES

permit programs. See Nationa! Pollution Discharge Elimination

System (NPDES), State Program Status (visited June 23, 2008)

<http://cfpub.epa.gov/npdes/statestats.cfm?program_ id=45&

view =general>.

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REASONS FOR GRANTING THE PETITION

SUMMARY OF ARGUMENT

The Ninth Circuit invalidated an NPDES permit for

a new discharger to an impaired water subject to a total

maximum daily load (“TMDU’), even though the permit

contained an offset condition designed to improve water

quality and ensure compliance with water quality

standards. In reaching its decision, the Ninth Circuit

interpreted section 122.4(i) in a manner that would

effectively prevent EPA and state water quality agencies

from issuing NPDES permits to new dischargers located

on or near waters listed as impaired under CWA § 303(d)

(33 U.S.C. § 1313(d)).°

Specifically, the Ninth Circuit held that under

section 122.4(i), a new discharger must demonstrate that

where a TMDL has been established for a CWA § 303(d)

listed water, a permit may only be issued if the new

discharger is able to demonstrate compliance with two

conditions: subsection 122.4(i)(1), which requires a

showing that there “are sufficient remaining pollutant

load allocations to allow for the discharge”; and

subsection 122.4(i)(2), which requires a showing that the

“existing dischargers into that segment are subject to

compliance schedules designed to bring the segment

into compliance with applicable water quality

standards.” 40 C.F-R. § 122.4(i)(1) & (2). The Ninth

Circuit went on to find that the term “existing

dischargers . .. subject to compliance schedules” under

3. The Ninth Circuit decision is reported as Friends of

Pinto Creek, et al. v. EPA, 504 F.3d 1007 (9"" Cir. 2007).

>= ro S47

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section 122.4(i)(2) applied not only to point sources (both

permitted and non-permitted) into the relevant water

body, but could also apply to nonpoint sources where

compliance schedules for point sources were insufficient

to bring the water body in compliance with applicable

water quality standards.‘ Thus, under the Ninth Circuit

decision, to obtain an NPDES permit, a new discharger

into an impaired water subject to a TMDL would

potentially need to persuade nonpoint sources to agree

to establish compliance schedules in order to ensure

that the water segment was brought into compliance

with applicable water quality standards.

The Ninth Circuit’s inclusion of nonpoint sources

within “existing dischargers . . . subject to compliance

schedules” in section 122.4(i)(2) is not supported by the

language and policy of the CWA, and will have a negative

impact on the administration of the NPDES program.

If section 122.4(i)(2) is interpreted to require applicants

for permits to reach agreements on compliance

schedules for nonpoint sources if schedules for point

sources are insufficient to bring the water body into

compliance with water quality standards, it will be

virtually impossible for new dischargers to obtain

permits. Nonpoint sources are generally not regulated

and come from diffuse sources that are difficult to

measure and control, making it extremely problematic

for an applicant for a permit to ensure the nonpoint

4. Point sources are sources that discharge pollutants

through defined conveyances such as pipes or channels, whereas

nonpoint sources are more diffused sources of pollutants such

as runoff. 33 U.S.C. § 1362\14); Sierra Club v. El Paso Gold

Mines, Inc., 421 F.3d 1133, 1140, n.4 (10™ Cir. 2005).

5

sources comply with water quality standards. Indeed,

the CWA does not regulate nonpoint sources through

NPDES permits, and leaves the responsibility for

nonpoint source regulation to the states.

Moreover, the purpose of TMDLs is to allow for

effective water quality management of discharges into

a particular water segment. The Ninth Circuit decision,

however, will obstruct using TMDLs for the management

of discharges and will instead make it practically

unattainable for new dischargers to obtain permits in

waters subject to a TMDL, because such a discharger

will now potentially be required to ensure that all

sources of pollution, including nonpoint sources, must

either be in compliance with water quality standards or

be subject to a compliance schedule for a water segment.

Such a formidable burden will dramatically impair a new

discharger’s ability to obtain a permit, and may require

existing point sources to establish restrictive compliance

requirements to compensate for pollution from difficult-

to-control nonpoint sources. The petition for a writ of

certiorari should be granted because of these potential

national impacts on the NPDES program as a result of

the Ninth Circuit’s ruling.

The Ninth Circuit also held that there is no language

in the CWA or its regulations that provides for an

exception to section 122.4(i) to allow for EPA or state

water quality agencies to consider a decrease in an

existing discharge to offset a new discharge into a water

listed as impaired for a pollutant under CWA § 303(d).

This interpretation of section 122.4(i) improperly

constrains the EPA’s and state water quality agencies’

discretion and flexibility to issue permits for discharges

6

into CWA § 303(d) impaired waters, as permitting agencies

should be allowed to consider net environmental benefits,

such as would occur through offsets of the impacts of new

discharges with equivalent or greater reductions from

existing discharges. EPA’s offset approach is vital to

incrementally restoring the nation’s waters, is entirely

consistent with the TMDL program as designed by

Congress and implemented by EPA, and is necessary to

accommodate population growth, economic development

and replacement or enhancement of wastewater

infrastructure. Denying permitting agencies the ability to

consider offsets for new discharges into an impaired water

will stifle the ability of permitting authorities and

dischargers to develop new and more efficient facilities,

whose discharges could be offset by decreasing discharges

from older, outdated facilities, and which would allow for

significant environmental benefits, such as decreasing total

discharges into a water body. If upheld and widely followed,

the Ninth Circuit’s decision will confuse the process for

obtaining permits for new dischargers in impaired waters,

impose new and in some cases impossible prerequisites

for such permits, and chill trading and offset programs

that are designed to promote incremental environmental

improvement, consistent with the language and policy of

the CWA. Again, the Ninth Circuit’s decision will have a

national impact on the NPDES program that conflicts with

the purpose of the CWA.

Because of the above national impacts on the

administration of the NPDES program that directly

bear on, among many others, the Coalition’s diverse

members as a result of the Ninth Circuit’s decision, as

well as the conflict created by the Ninth Circuit’s

7

decision with the Court’s decision in Arkansas v.

Oklahoma, 503 U.S. 91 (1992), and the Minnesota

Supreme Court’s decision in /n re: Cities of Annandale,

et al., 731 N.W.2d 502 (Minn. 2007) — as thoroughly

discussed in Carlota Copper’s petition for writ of

certiorari — the Coalition and its members have an

interest in ensuring the proper application of section

122.4(i), and support Carlota Copper’s petition for writ

of certiorari seeking reversal of the Ninth Circuit’s

decision.

ARGUMENT

I. Statutory framework of the CWA and NPDES

program.

The objective of the CWA “is to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of

this goal, the CWA prohibits any person from

discharging any pollutant into waters of the United

States from a point source unless the discharge complies

with the CWA’s statutory requirements. 33 U.S.C.

§ 1311(a). A point source is defined as “any discernible,

confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other floating

craft, from which pollutants are or may be discharged.”

33 U.S.C. § 1362(14). Conversely, the CWA dvces not

define the term nonpoint source. Sierra Club v. El Paso

Gold Mines, Inc., 421 F.3d 1133, 1140, n.4(10" Cir. 2005);

League of Wilderness Defenders v. Forsgren, 309 F.3d

1181, 1184 (9 Cir. 2002). However, a nonpoint source

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“is commonly understood to be pollution arising from

dispersed activities over large areas that is not traceable

to a single, identifiable source or conveyance.” Sierra

Club, 421 F.3d at 1140, n.4; League of Wilderness

Defenders, 309 F.3d at 1184 (A nonpoint source “is widely

understood to be the type of pollution that arises from

many dispersed activities over large areas, and is not

traceable to any single discrete source. Because it arises

in such a diffuse way, it is very difficult to regulate

through individual permits.”). Section 402 of the CWA

(“CWA § 402”) authorizes EPA to issue NPDES permits

for the discharge of pollutants from point sources,

provided the discharge meets particular statutory

requirements. 33 U.S.C. § 1342(a).

The CWA recognizes “that the States should have a

significant role in protecting their own natural

resources.” Jnternational Paper Co. v. Ouellette, 479

U.S. 481, 489 (1987). As part of the states’ primary

responsibilities for controlling pollution, the CWA

requires states to develop water quality standards for

all water bodies within their borders to further the goals

of the CWA. 33 U.S.C. § 1313(a). Under the CWA, water

quality standards, which states promulgate and then

submit to EPA for approval, must have two components:

(1) one or more “designated uses of the navigable waters

involved;” and (2) “water quality criteria for such waters

based upon such uses.” 33 U.S.C. § 1313(c)(2)(A).

9

in issuing an NPDES permit, EPA or a state water

quality agency must also comp!y with the CWA’s 7

attendant regulations as necessary to achieve water

quality standards. See 40 C.F.R. § 122.4; 40 C.FR.

§ 122.44. Section 122.4(i) provides in full:

No permit may be issued:

(i) To a new source or a new discharger, if the

discharge from its construction or operation

will cause or contribute to the violation of

water quality standards. The owner or

operator of a new source or new discharger

proposing to discharge into a water segment

which does not meet applicable water quality

standards or is not expected to meet those

standards even after the application of the

effluent limitations required by sections

301(b)(1)(A) and 301(b)(1)(B) of CWA, and for

which the State or interstate agency has

performed a pollutants load allocation for

the pollutant to be discharged, must

demonstrate, before the close of the public

comment period, that:

(1) There are sufficient remaining

pollutant load allocations to allow for the

discharge; and

(2) The existing dischargers into that

segment are subject to compliance

schedules designed to bring the segment

10

into compliance with applicable water

quality standards. The Director may

waive the submission of information by

the new source or new discharger

required by paragraph (i) of this section

if the Director determines that the

Director already has adequate

information to evaluate the request. An

explanation of the development of

limitations to meet the criteria of this

paragraph (i)(2) is to be included in

the fact sheet to the permit under

§ 124.56(b)(1) of this chapter.

40 C.F.R. § 122.4(i).

The CWA also imposes technology-based limitations

that “reduce levels of pollution by requiring a

discharger to make equipment or process changes,

without reference to the effect on the receiving water.”

City of Arcadia v. EPA, 411 F.3d 1103, 1105 (9 Cir.

2005). With both technology-based limitations and water

quality standards in place, the CWA also requires states

to identify water segments where technology-based

effluent limits are insufficient to achieve the applicable

water quality standards. 33 U.S.C. § 1313(d)(1)(A). A

water body that is not meeting a state water quality

standard is called a “water quality limited segment” or

impaired water. 40 C.E-R. § 130.2(j). Once a water quality

limited segment is identified, the states are required to

“establish a priority ranking for such waters, taking into

11

account the severity of the pollution and the uses to be

made of such waters.” 33 U.S.C. § 1313(d)(1)(A). The

list of these impaired waters is known as the “303(d)

list.” City of Arcadia, 411 F.3d at 1105.

Once a state identifies a segment as impaired or

“water quality limited” and places the impaired water

on the state’s 303(d)(1) list, the CWA requires the state

to develop a TMDL for that segment. 33 U.S.C.

§ 1313(d)(1)(C). A TMDL sets forth the total amount of

a pollutant from point sources, nonpoint sources, and

natural background that a water quality limited segment

can tolerate without violating water quality standards.

40 C.E-R. § 130.2(i).° In essence, a “TMDL is not self-

enforcing, but serves as an informational tool or goal

for the establishment of further pollution controls.”

City of Arcadia, 411 F.3d at 1105.

5. States must also identify waters not placed on their CWA

§ 303(d)(1) lists and “estimate” TMDLs for pollutants in those

waters. 33 U.S.C. § 1313(d)(3). The CWA does not provide any

requirement that the EPA approve the waters identified under

CWA § 303(d)(3) or the TMDLs for those waters. It is not clear

if the waters in question belong on the list required under CWA

§ 303(d)(1) or CWA § 303(d)(3).

12

II. The Ninth Circuit’s interpretation of section

122.4(i)(2) as potentially applying to nonpoint

sources will effectively prohibit the issuance of

permits for new dischargers into waters subject to

TMDLs.

The Ninth Circuit interpreted section 122.4(i)(2) and

ruled that if compliance schedules for permitted and non-

permitted point sources could not ensure compliance

with the applicable water quality standard, “then a

permit cannot be issued unless the state or Carlota

agrees to establish a schedule to limit pollution from a

nonpoint source or sources sufficient to achieve water

quality standards.” Friends of Pinto Creek, et al. v. EPA,

504 F.3d 1007, 1014 (9 Cir. 2007). The Ninth Circuit’s

holding that section 122.4(i)(2) requires new dischargers

into impaired waters subject to TMDLs to establish

schedules to bring nonpoint sources into compliance

with water quality standards, if compliance schedules

for point sources are insufficient, is unprecedented and

ignores the language and intent of the CWA, fails to give

deference to EPA's interpretation of its own regulations,

and fundamentally misconstrues the nature of nonpoint

sources. As a practical matter, the Ninth Circuit’s

interpretation will substantially frustrate the ability of

permitting agencies to issue permits for new discharges

into waters subject to TMDLs and, in turn, will

negatively affect the administration of the NPDES

program. The Ninth Circuit’s decision, if upheld, would

have the effect of requiring permit applicants, like

Petitioner Carlota Copper, to coax nonpoint sources to

accept enforceable schedules for their otherwise

unregulated discharges. It also would have the effect of

punishing point sources for the impacts from illegal point

13

sources and other nonpoint sources over which they may

have no meaningful control.

The Ninth Circuit’s expansive and novel reading of

section 122.4(i) is not supported by the language or

policy of the CWA, and will severely disrupt

administration of the NPDES program. Consider, for

example, a creek with ten existing point source

dischargers (two of which are discharging illegally) and

an additional ten nonpoint sources. If the creek is

subject to a TMDL that contains a reservation for

future growth, then a new discharger should be able to

obtain an NPDES permit that is consistent with this

reservation, as well as the other assumptions and

requirements of the TMDL. Under the Ninth Circuit’s

interpretation, however, this new discharger will be

ineligible for permit coverage unless and until all of the

other point sources (even the illegal sources) obtain

permits with enforceable compliance schedules, and if

those reductions are insufficient to ensure compliance

with water quality standards, then the new discharger

will continue to be ineligible unless and until the

nonpoint sources are somehow compelled to accept

enforceable compliance schedules. This will have the

effect of an immediate moratorium on permitting for

new dischargers, since it may take several permit cycles

(z.e., 5-10 years or more) toimpose TMDL requirements

in NPDES permits for existing dischargers, and even

longer to enforce illegal discharges and coax nonpoint

sources to accept enforceable schedules for their

otherwise unregulated discharges.

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An examination of the language of the CWA

demonstrates that section 122.4(i)(2) cannot apply to

nonpoint sources. The language of section 122.4(i)(2)

states “(t]he existing dischargers into that segment are

subject to compliance schedules .. .” 40 C.F.R.

§ 122.4(i)(2) (emphasis added). The CWA defines

“discharge” as “a discharge of a pollutant, and a

discharge of pollutants.” 33 U.S.C. § 1362(16). The CWA

then defines “discharge of a pollutant” as “(A) any

addition of any pollutant to navigable waters from any

point source, (B) any addition of any pollutant to the

waters of the contiguous zone or the ocean from any

point source other than a vessel or other floating craft.”

33 U.S.C. § 1362(12) (emphasis added). As a result,

section 122.4(i)(2) only applies to existing discharges of

pollutants to navigable waters from a point source. The

CWA specifies that nonpoint sources are not included

within the term “discharges,” thus, they should not be

included within the term “existing dischargers” in

section 122.4(i)(2). Further confirming this point, the

CWA regulations define the term “schedule of

compliance” as a “schedule of remedial measures

included in a ‘permit’... .” 40 C.F.R. § 122.2 (emphasis

added). This language demonstrates that “compliance

schedules” only apply to permitted point source

discharges and not nonpoint source discharges.

Section 122.4(i)(2) can only apply to point source

dischargers because EPA’s authority under the CWA is

limited to promulgating regulations, such as section

122.4(i), to apply to point sources. See NRDC v. EPA,

915 F.2d 1314, 1316 (9" Cir. 1990); Sierra Club v.

Meiburg, 296 F.3d 1021, 1026 (11 Cir. 2002); see also

Oregon Natural Resources Council v. U.S. Forest

15

Service, 834 F.2d 842, 849 (9 Cir. 1987) (“Point sources

are subject to direct federal regulation and enforcement

under the Act .. . Nonpoint sources, because of their

very nature, are not regulated under the NPDES.”);

Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124 (10"

Cir. 2005) (“Unlike point source pollutants, the EPA

lacks the authority to control non-point source

discharges through a permitting process . . .”) Instead,

the CWA provides that regulation of nonpoint sources

will be left to the states. Oregon Natural Resources

Council, 834 F.2d at 849 (“Congress addressed nonpoint

sources of pollution in a separate portion of the Act

which encourages states to develop area-wide waste

treatment management plans.”). Thus, EPA could not

have intended for section 122.4(i)(2) to apply to nonpoint

source dischargers.

Moreover, even assuming arguendo that the

language of section 122.4(i)(2) is ambiguous as to

whether it includes nonpoint sources, the Ninth Circuit

failed to defer to EPA’s interpretation of its own

regulation. The seminal case of Chevron U.S.A. Inc. v.

NRDC, Inc., 467 U.S. 837, 842-44 (1984) established the

principle that courts must give effect to an agency’s

reasonable interpretation of an ambiguous statute. This

rule was subsequently extended to apply to the

interpretation of ambiguous regulations. See Auer v.

Robbins, 519 U.S. 452, 461 (1997). Accordingly, EPA’s

interpretation of its own regulations governing the

NPDES program is entitled to deference. Arkansas v.

Oklahoma, 503 U.S. 91, 110, 112 (1992); Auer, 519 U.S.

at 461.

16

In briefing before the Ninth Circuit and the

Environmental Appeals Board (“EAB”), EPA explained

that its interpretation of “existing dischargers” in

section 122.4(i)(2) only applied to point sources. See In

re: Carlota Copper Co., 2004 EPA App. LEXIS 35, *201-

202 (EAB, 2004) (In finding that EPA’s interpretation

of section 122.4(i)(2) was not erroneous, the EAB held

“(t]he requirement in section 122.4(i)(2) can only apply

to point sources because under the CWA the Agency

only has authority to promulgate regulations for point

sources ... and as previously noted, the regulation of

nonpoint source discharges is left to the states.”) The

Ninth Circuit should have deferred to EPA’s

interpretation of its own regulation, and found that

section 122.4(i)(2) only requires compliance schedules

for point sources. Its failure to do so offends Auer

principles.

If upheld, the Ninth Circuit’s decision will make it

virtually imposs‘ble for new dischargers of a particular

pollutant to obtain permits in waters subject toa TMDL

for such a pollutant. According to the Ninth Circuit, any

new discharger seeking a permit for discharges into a

water body subject to a TMDL will be required to

establish schedules for all point sources of pollution to

bring a water body into compliance with water quality

standards, and where that is insufficient, compliance

schedules will also be required of nonpoint sources. Such

a burden for a new discharger wil] be almost impossible

to overcome, due to the difficulty of controlling nonpoint

sources. Unlike an easily identifiable point source, a

nonpoint source involves “pollution arising from

dispersed activities over large areas that is not traceable

to a single, identifiable source or conveyance.”

17

Sierra Club, 421 F.3d at 1140, n.4. “Because it arises in

such a diffuse way, it is very difficult to regulate through

individual permits.” League of Wilderness Defenders,

309 F'3d at 1184. As explained by the Eleventh Circuit:

In addition to originating from point sources,

pollution also comes from non-point sources,

such as runoff from farmlands, mining activity,

housing construction projects, roads, and so

on. Non-point sources cannot be regulated by

permits because there is no way to trace the

pollution to a particular point, measure it, and

then set an acceptable level for that point.

Meiburg, 296 F.3d at 1025. As a result of the difficulty of

measuring and controlling nonpoint sources and, thus, the

difficulty in implementing schedules for bringing them into

compliance with water quality standards, the ability of a

new discharger to obtain a permit for a new discharge into

a TMDL water will be dramatically impaired.

A TMDL is a tool for EPA and state water quality

agencies to use to effectively manage water quality and

discharges from both point and nonpoint source

pollution. Specifically, a TMDL sets forth the total

amount of a pollutant from point sources, nonpoint

sources, and natural background that a water quality

limited segment can tolerate without violating water

quality standards. 40 C.F-R. § 130.2(i). TMDLs consist

of wasteload allocations® for point sources discharging

6. Wasteload allocations are defined as “(t)he portion of a

receiving water’s loading capacity that is allocated to one of its

existing or future point sources of pollution. WLAs constitute a

type of water quality-based effluent limitation.” 40 C.F.R.

§ 130.2(h).

18

into the impaired segment and load allocations’ for

nonpoint sources and natural background. /d. The

purpose of TMDLs is to organize these load allocations

so that they can be managed to effectively control the

water quality of the impaired segment, and allow for new

dischargers when sufficient allocations for the

dischargers are in place. The Ninth Circuit’s decision,

however, stifles this purpose, and instead of promoting

the effective management of water quality, it only

suppresses new dischargers from obtaining permits.

Moreover, under the CWA, the administrative tools

for controlling impacts from point source and nonpoint

sources are dramatically different. Point sources are

subject to NPDES permitting requirements that must

be consistent with the assumptions and requirements

of any available TMDL. Nonpoint sources are subject

to no similar requirements. In fact, they remain largely

unregulated, except perhaps at the state and local level

under state-specific laws or policies. The burden

imposed by the Ninth Circuit’s decision will make it close

7. Load allocations are defined as

The portion of a receiving water’s loading capacity

that is attributed either to one of its existing or

future nonpoint sources of pollution or to natural

background sources. Load allocations are best

estimates of the loading, which may range from

reasonably accurate estimates to gross allotments,

depending on the availability of data and

appropriate techniques for predicting the loading.

Wherever possible, natural and nonpoint source

loads should be distinguished.

40 C.E.R. § 130.2(g).

19

to impossible for new dischargers to obtain NPDES

permits from EPA or a state water quality agency for

waters subject to TMDLs, thus limiting a permitting

authority’s ability to manage water quality.

Further exacerbating the impact of the Ninth

Circuit’s decision are the number of waters impaired by

nonpoint sources in the United States where the

decision would prevent or impede issuance of NPDES

permits for new facilities or expansions of existing

facilities. On its website, EPA provides statistics as to

the scope of CWA § 303(d) impaired waters:

Over 40% of our assessed waters still do not

meet the water quality standards states,

territories, and authorized tribes have set for

them. This amounts to over 20,000 individual

river segments, lakes, and estuaries. These

impaired waters include approximately

300,000 miles of rivers and shorelines and

approximately 5 million acres of lakes —

polluted mostly by sediments, excess

nutrients, and harmful microorganisms. An

overwhelming majority of the population - 218

million - live within 10 miles of the impaired

waters.

See Overview of Current Total Maximum Daily Load -

TMDL - Program and Regulations (visited June 23,

2008) <http:/Awww.epa.gov/owow/tmd//overviewfs.html>.

In addition, the Ninth Circuit’s decision would

negatively effect general permits that regulate certain

industries. These permits cover hundreds, if not

thousands, of minor sources in particular categories that

20

allow for efficient and managable regulation. Applying

the Ninth Circuit’s decision to these minor sources,

however, would require individual source considerations,

in direct conflict with the purpose of general permits,

and would completely eviscerate the value of such

permits, putting an effective halt on the activities of

general permittees, such as construction, thus having a

direct and broad economic impact. Because of the broad

adverse impact that the Ninth Circuit's decision will have

on the NPDES permitting process, including the

Coalition’s members who are involved in broad activities

throughout the United States, such as energy

production, industrial processes, factories, businesses,

construction, utilities, and municipal wastewater

treatment, the Court should grant the petition for writ

of certiorari.

III. The Ninth Circuit’s interpretation of section

122.4(i) as not allowing for offsets will negatively

affect permitting authorities’ ability to protect

and restore the nation’s waters.

The Ninth Circuit decision also held that “there is

nothing in the Clean Water Act or the regulation that

provides an exception for an offset when the waters

remain impaired and the new source is discharging

pollution into that impaired water.” Friends, 504 F.3d

at 1012. This holding interprets section 122.4(i) in a

manner that dramatically restricts a permit-issuing

agency’s discretion in making permitting decisions

under the CWA.

During the permitting process, EPA found that “the

copper loadings into Pinto Creek attributable to the

Gibson Mine exceed Carlota’s projected loadings

21

and that the partial remediation of the Gibson Mine

will offset any discharges from Carlota’s facilities.”

In re: Carlota Copper Co., 2004 EPA App. LEXIS 35, at

*133. Thus, “rather than ‘causing or contributing’ a

degradation, Carlota will be improving Pinto Creek’s

water quality, or at the very least maintaining water

quality.” Jd. at *197. The Ninth Circuit decision, however,

voids this potential offset and allows the Gibson mine to

continue discharging copper into Pinto Creek in an

amount in excess of Carlota Copper’s potential new

copper discharges. This rejection of the offset approach

directly conflicts with the CWA’s objective of improving

and restoring the quality of the nation’s water, as it will

stifle trading and offset programs that were established

to promote environmental improvement. Moreover, the

Ninth Circuit’s rejection of EPA’s use of an offset fails

to grant deference to EPA’s interpretation of a

regulation its administers in conflict with the Court’s

decision in Awer. See 519 U.S. at 461. The Ninth Circuit’s

interpretation of section 122.4(i) as not allowing offsets

stifles the ability of permitting authorities and new

dischargers to develop new and more effective facilities

to deal with pollutants in an impaired water, because

the construction of any improved facilities will not be

possible. Such a result is not envisioned by the CWA.

33 U.S.C. § 1251(a).

The Ninth Circuit’s decision unduly restricts the

EPA's and state water quality agencies’ ability to protect

the nation’s waters, and does so in a way that is not

supported by the CWA. Under the Ninth Circuit’s

reasoning, section 122.4(i) bars a permitting authority

from allowing new discharges into a CWA § 303(d)

impaired water body where there may be net

22

environmental benefits. EPA and state permitting

authorities, however, need the discretion and flexibility

to consider various factors when making permitting

decisions under the CWA. For state permitting agencies,

the CWA grants the authority to develop water quality

standards, as well as control over permitting discharges

to enforce such standards. The Ninth Circuit’s failure

to honor that autonomy is in error and should be

reviewed by the Court.

To illustrate the discretion given to permitting

agencies under the CWA, EPA’s NPDES regulations

provide that in assessing whether to issue a permit and

determining whether a discharge has the reasonable

potential to cause or contribute to an exceedance of a water

quality standard, a permitting authority has the discretion

to take into account other discharges into the same water

body and the net effects of such discharges:

(ii) When determining whether a discharge

causes, has the reascnable potential to cause,

or contributes to an in-stream excursion above

a narrative or numeric criteria within a State

water quality standard, the permitting authority

shall use procedures which account for existing

controls on point and nonpoint sources of

pollution, the variability of the pollutant or

pollutant parameter in the effluent, the

sensitivity of the species to toxicity testing (when

evaluating whole effluent toxicity), and where

appropriate, the dilution of the effluent in the

receiving water.

40 C.FR. § 122.44(d)(1)(ii). This language gives a permitting

authority significant flexibility in issuing a permit, under

23

which the permitting authority can examine “existing

controls on point and nonpoint sources of pollution.” /d.

In other words, in taking into account beneficial existing

pollution controls on a water body, a permitting authority

has the discretion to find that there will not be a reasonable

potential to exceed, and, therefore, no permit limit is

needed. Jd. This regulation provides an example of the

discretion granted to a permitting authority under the

CWA’s regulations, which will be abrogated by the Ninth

Circuit’s restrictive reading.

If the Ninth Circuit’s decision is followed, EPA and

state permitting authorities will not be able to use a

necessary flexible approach that allows consideration of

important issues such as environmental benefits or public

health. Indeed, under the Ninth Circuit’s ruling,

permitting authorities will not be able to issue permits for

the replacement of failing facilities with new or updated

facilities, because the permitting authorities will have no

flexibility to consider offsets and net environmental benefits

involved with the increased efficiency of a replacement

facility’s water treatment processes, a failing facility’s

existing discharges, and the overall net benefit to the

environment. For example, the Ninth Circuit’s decision

could make it impossible for a permitting authority to issue

a permit to install new sewer systems for dischargers in

previously unsewered areas (e.g., areas currently using

septic tanks). The Ninth Circuit’s decision is inconsistent

with the CWA’s objectives of cleaning the nation’s waters,

and should be reviewed and reversed.

In the case at bar, the impairment in the water

segment from Carlota Copper’s potential discharges will

be offset by the remediation of the Gibson mine, leading

24

to a net decrease of copper discharges. Jn re: Carlota

Copper Co., 2004 EPA App. LEXIS 35, at *189 (“Carlota

will not cause or contribute to the violation of water quality

standards but rather will improve existing conditions

because the reductions that will result from its activities

are greater than the projected discharges.”) In such

circumstances, permitting agencies should have discretion

to allow a new discharge into a water, where there will be a

net environmental benefit consistent with the goals of the

CWA. The Ninth Circuit’s decision should be reviewed and

reversed.

CONCLUSION

For the reasons set forth above, this Honorable

Court should grant the Petition for writ of certiorari.

Respectfully submitted,

DANIEL P. ALBERS

Counsel of Record

FREepRIC P ANDES

Davin T. BALLARD

BARNES & THORNBURG

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

Counsel for the Federal Water

Quality Coalition