Petition for Writ of Certiorari — Quivira Mining Co. v. United States Environmental Protection Agency

Suprame Court, U.S.

ee Og Se

SEP g 1985

85-408”

No. 85- JOSEPH F. or AniOL, JR.

CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

QUIVIRA MINING COMPANY,

HOMESTAKE MINING COMPANY OF CALIFORNIA,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

G. Stanley Crout Peter J. Nickles

Sunny J. Nixon Richard A. Meserve

STEPHENSON, CARPENTER, COVINGTON & BURLING

CrouT & OLMSTEAD P.O. Box 7566

P.O. Box 669 1201 Pennsylvania Avenue,

142 W. Palace Avenue N.W.

Santa Fe, New Mexico 87501 Washington, D.C. 20044

(505) 982-4611 (202) 662-6000

aa

QUESTION PRESENTED

Whether federal jurisdiction under the Clean Water Act,

33 U.S.C. §§ 1251 et seq., to regulate discharges into

“navigable waters” extends to discharges to a normally dry

gully whose only hydrological connection to other waters is

by infrequent flooding or, over the course of centuries, by

underground flow.

PARTIES TO THE PROCEEDING

Quivira Mining Company is a wholly owned subsidiary of

Kerr-McGee Corporation. Homestake Mining Company of

California (formerly Homestake Mining Company, a Cal-

ifornia corporation) is a wholly owned subsidiary of Home-

stake Mining Company, a Delaware corporation. Case,

Pomeroy & Company, Inc. is an affiliate of Homestake Min-

ing Company.

TABLE OF CONTENTS

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STATUTES AND REGULATIONS INVOLVED ...........

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TABLE OF AUTHORITIES

CASES: Page

Economy Light & Power Co. v. United States, 256 U.S.

SEED 5 ceo cdun Shana ss Pes dsasdiekeuneaes ces 8

Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir. 1977) .. 11

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974) 9

Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

BE BD hn vcednk dah aciacdeanekas seer bend enne 10

Hodel v. Virginia Surface Mining & Reclamation Ass'n,

GD i SO CD ho ane ein san sencecuecciosas 10

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1(1937) 10

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870) ....... g

The Montello, 87 U.S. (20 Wall.) 480 (1874) .......... 8

United States v. Appalachian Elec. Power Co., 311 U.S.

EE RD hc hdc ac sndn budbeeg chdesn sh edegee neue 8

United States v. Ashland Oil & Transp. Co., 504 F.2d 1317

SEE ecb kacs cobdedcadcctdesdnuriceacs 10

United States v. Byrd, 609 F.2d 1204 (6th Cir. 1979) .. 11

United States v. City of Fort Pierre, 747 F.2d 464, 466-467

ee NE odin. d Sh bpcnsnaeendedetandes sea 12

United States v. GAF Corp., 389 F. Supp. 1379 (S.D. Tex.

SE ia he wan ek dne be hNG CR se eebebsnaiginees 11

United States v. Holland, 373 F. Supp. 665 (M.D. Fla.

SUE ab cces win Schad chaos daw e awn ee eee kbwnss 7

United States v. Riverside Bayview Homes, Inc., 729 F.2d

391 (6th Cir.), cert. granted, 105 S.Ct. 1166 (1984)

ER. RR: or eee SEES 11, 12

United States v. Texas Pipe Line Co., 611 F.2d 345 (10th

CS Gace G as aka ekawssadekaeeeens kaos 10

Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) ........ 11

Wickard v. Filburn, 317 U.S. 111 (1942) ............. 10

STATUTES:

Clean Water Act,

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Table of Authorities Continued

Page

SP Sine EE Ah ida bod cce onc scntndeueres 3, 7

ee RP ID kv oc oe cc cbcdeknace cans 3, 7

ee Sr EE oo os ova aw Ole c hee ba ik we ces 6

Rivers and Harbors Appropriation Act of 1899,

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MISCELLANEOUS:

RO Se Ss RIED ook oc dccsaccoevaatsecton 9

SRB Se, ee Pe ND no ns ss wees NIRS hee as 9

118 Cong. Rec. 33699 (1972) .................. atlas 9

118 Cong. Rec. 33756-57 (1972) ........... cc cece eee 8

H. Conf. Rep. No. 830, 95th Cong., Ist Sess. (1977) .. 2

S. Conf. Rep. No. 1236, 92nd Cong., 2nd Sess. (1972) . 8

S. Rep. No. 414, 92d Cong., Ist Sess. (1972) ...... passim

Sen. Comm. on Public Works, 93d Cong., lst Sess., A

Legislative History of the Water Pollution Control

Act Amendments of 1972 (Comm. Print 1973) . passim

EF icp

> 3a

ws ie ea lle

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

No. 85-

QUIVIRA MINING COMPANY,

HOMESTAKE MINING COMPANY OF CALIFORNIA,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTiORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Quivira Mining Company and Homestake Mining Com-

pany of California petition for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, 1a) is

reported at 765 F.2d 126. The orders of the Administrator

and the initial decisions of the Regional Administrator are

unreported (App. B, C, D, E, F, infra).

JURISDICTION

The judgment of the court of appeals was entered on June

10, 1985. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The relevant portions of the Clean Water Act, 33 U.S.C.

§§ 1251 et seg., and of the implementing regulations pro-

mulgated by the U.S. Environmental Protection Agency

are reprinted at App. G, infra.

STATEMENT OF THE CASE

The petitioners, Quivira Mining Company (“Quivira”)

and Homestake Mining Company of California (“Home-

stake”), operate uranium mining and milling facilities in the

Grants Mineral Belt in New Mexico. The petitioners pump

groundwater from their uranium mines, treat it to remove

contaminants, and then discharge it into a normally dry

arroyo.’ The discharged water ordinarily disappears as a

result of either evaporation in the arid environment or

infiltration into the ground long before any flow reaches a

tributary of navigable waters. The court of appeals has held

that infrequent flooding and underground flow over the

course of centuries establish a connection between the ar-

royo and a tributary of a navigable-in-fact stream that is

sufficient to justify the exercise of federal jurisdiction over

the discharges under the Clean Water Act (“CWA”).* 33

'The arroyo is a gully created in the geological past by the erosive

forces of water flowing through the alluvial soils that are found in the

area. 5

“In 1977, Congress amended the Federal Water Pollution Control

Act of 1972 and stated that the Act might be cited as the Clean Water

Act. H. Conf. Rep. No. 830, 95th Cong., Ist Sess. 50, reprinted in

1977 U.S. Code Cong. & Ad. News 4424, 4424.

BO BRA et i Alt AAP lat I BEE it tN aS OR sh

OR Ps RRA AUT OS es

U.S.C. §§ 1251, et seg. The issue presented is whether

federal jurisdiction properly attaches under these

circumstances.

The CWA was enacted to protect water quality through

the regulation of the discharge of pollutants into “navigable

waters,” id. §§ 1251(a)(1), 13862(12)(A), a term that is de-

fined to mean “waters of the United States,” id. § 1362(7).

The U.S. Environmental Protection Agency (“EPA”) is

authorized to issue permits to regulate certain discharges

under the Act. Jd. § 1342(a). Discharges that are not regu-

lated by the federal government are subject to regulation by

the states.

The treated groundwater that is pumped from the peti-

tioners’ mines is discharged in the Arroyo del Puerto. The

arroyo is normally dry upstream of the discharges, but on

rare occasions may contain flow resulting from precipita-

tion. The flow from the discharges customarily proceeds

about three miles south of the furthest downstream dis-

charge point to join another normally dry arroyo, the San

Mateo Creek. The flow usually disappears approximately

1.3 miles south of the junction of the Arroyo del Puerto and

San Mateo Creek, which is about ten miles from the Rio San

Jose.

After its confluence with the Arroyo del Puerto, the

channel of San Mateo Creek that existed in the geologic past

is substantially disrupted. The channel branches into a

braided configuration and then crosses a ranch where the

former channel is obstructed by spreader dams. The histor-

ic channel of San Mateo Creek is further obstructed down-

stream by a tailings pile (i.e., a pile of ore residues resulting

from milling operations) and by agricultural and housing

developments on the outskirts of the town of Grants, New

Mexico. Flow in San Mateo Creek joined the Rio San Jose

near Grants in the geologic past. The Rio San Jose is an

intermittent stream that flows into the Rio Puerco, which in

turn flows intermittently into the Rio Grande. The Rio

Grande is a navigable water of the United States.

Despite the absence of any regular or periodic surface

flow connecting the discharges to navigable waters, EPA

nonetheless asserted jurisdiction over the discharges under

the CWA. EPA relied on three theories: (1) at times of

severe flooding the discharges might be carried down San

Mateo Creek into the Rio San Jose; (2) the discharges enter

the groundwater and in the remote future will emerge at a

spring that feeds into the Rio San Jose; and (8) the dis-

charges may be consumed by cattle that are sold in inter-

state commerce.

Quivira and Homestake petitioned EPA for an evidenti-

ary hearing to establish that EPA lacked authority to regu-

late the discharges. The petitions were granted and Home-

stake stipulated that its petition could be resolved on the

record that would be developed in the Quivira hearing. The

hearing was held in July and August 1978 and the Regional

Administrator issued his initial decisions on March 10 and

11, 1981. App. B, D, infra.’

The Regional Administrator concluded that “{oJn rela-

tively rare occasions” floods in San Mateo Creek reached

Rio San Jose, thereby establishing the necessary rela-

tionship between San Mateo Creek and navigable wa-

°The administrative decisions concerning the Homestake dis-

charge are substantially identical to those issued concerning the

Quivira discharge. Accordingly, reference herein will be made only to

the Quivira administrative decisions.

“wen Kaas Cite ul nes Husdsnicaic

i A Sta sane it als Se aT ail TA, Kot ob a

ters.‘ App. B, infra, at 10a. He stated: “In cases involving

intermittent or ephemeral streams like San Mateo Creek,

. . . the fact that a tributary relationship occurs ‘only once a

year, or even less frequently,’ is irrelevant. Jurisdiction is

still present.” Jd. at 14a, quoting an EPA General Counsel’s

opinion. In his view, EPA jurisdiction could be found when-

ever there were “geomorphic features capable of transport-

ing pollutant laden water to an area in which interstate

commerce may be affected.” Jd. at 12a.

The Regional Administrator also upheld EPA’s ground-

water theory. The testimony at the hearing showed that

most of the flow that moved into the alluvium served to

recharge the underground aquifers that release water in the

mines. The Regional Administrator concluded, however,

that at least some of the water might migrate through the

alluvium to emerge in Rio San Jose. The time period for

such a passage from the point of the usual termination of

flow was estimated to require from 154 to 1000 years. The

Regional Administrator also found the discharges affected

interstate commerce as a result of the consumption of water

in San Mateo Creek by cattle.°

*The Regional Administrator pointed to testimony that such floods

occurred on the average of once every five years. App. B, infra, at

10a. This testimony was elicited from only one witness, however, and

that witness could recall specifically only one such flood. Expert

testimony established that the single flood actually observed by the

witness probably resulted from flow in another watershed that feeds

San Mateo Creek. Another long-time local resident could recall no

floods that had carried waters from the Arroyo del Puerto to the Rio

San Jose.

°Cattle are pastured along San Mateo Creek for approximately one

month a year below the point of normal disappearance of the flow. The

rancher testified that most of his cattle are sold in his own in-state

meat market and that anyone purchasing meat at the market could

Both Quivira and Homestake requested that the Admin-

istrator review the initial decisions of the Regional Admin-

istrator. Despite an acknowledgement that surface flow oc-

curs “on an average of not more than once every five years”

and that groundwater flow “may take centuries before re-

emerging as part of the surface flow,” the Administrator

issued substantially identical orders denying the petitions

for review. App. C, E, infra. The Administrator concluded

that the Regional Administrator's findings and conclusions

were not clearly erroneous.

The petitioners then filed petitions for review of the Ad-

ministrator’s orders with the Court of Appeals for the Tenth

Circuit pursuant to 33 U.S.C. § 1369(b)(1). The cases were

consolidated.® The court found there was substantial evi-

dence to support the findings that surface flow to navigable

waters “occasionally occurs, at times of heavy rainfall” and

that underground flow to such waters might occur, albeit

after “a lengthy period, perhaps centuries.” App. A, infra,

at 4a. (The court pointedly ignored EPA’s theory of jurisdic-

tion based on consumption of the discharges by cattle.)

Despite the petitioners’ assertions that these contacts were

insufficient to sustain federal jurisdiction, the court con-

not legally transport it out of New Mexico. The remainder of the

cattle is sold at a slaughter house that operates on a “regional” basis—

a term that the Administrative Law Judge informed EPA at the

hearing “may be a subdivision of a State.”

SQuivira also filed a petition for review of a permit for a discharge

from its Lee Uranium Mine into San Mateo Creek at a point upstream

from its confluence with the Arroyo del Puerto. The Regional Admin-

istrator had denied Quivira’s request for an evidentiary hearing as to

EPA’s jurisdiction on the ground that the matter had been resolved in

the administrative proceeding concerning Quivira’s discharge into

the Arroyo del Puerto. App. F, infra. The court of appeals consoli-

dated the challenges to EPA’s jurisdiction arising from both Quivira

discharges and from the Homestake discharge.

REY Oe Aa hi OT AD a.

cluded that EPA could regulate the discharges under the

CWA.

REASONS FOR GRANTING THE PETITION

The decision below is inconsistent with the intent of Con-

gress, conflicts directly with a decision of another circuit

that is currently pending for review before this Court, and

threatens a serious intrusion on state authority.

1. In recognition of the constitutional limits on federal

authority that are created by the Commerce Clause, Con-

gress provided that federal authority under the CWA is

limited to the “addition of any pollutant to navigable wa-

ters.” 33 U.S.C. § 13862(12)(A). The legislative history

shows that Congress, although defining “navigable waters”

to mean “waters of the United States,” zd. § 1362(7), intend-

ed to assure that limits on federal power were respected in

the application of the Act. The Congressional intent was

ignored by both EPA and the court of appeals.

The legislative history demonstrates that the CWA was

enacted in part to provide greater protection of navigable

waters than had been achieved under previous legislation.

For example, although the Rivers and Harbors Appropria-

tion Act of 1899 required that a permit be obtained before

refuse could be deposited in or on a navigable waterway, 33

U.S.C. § 407, the Act had been construed so as not to

encompass small feeder streams or wetlands, which though

themselves not navigable, flowed into streams that were

navigable. See, e.g., United States v. Holland, 373 F. Supp.

665, 669-70 (M.D. Fla. 1974). Congress perceived that this

construction was too narrow to be effective, and thus it

intended that the scope of the CWA should be broader.’

"See S. Rep. No. 414, 92nd Cong., 1st Sess. 77, reprinted in 1972

U.S. Code Cong. & Ad. News 3668, 3742; 2 Sen. Comm. on Public

Works, 93d Cong., Ist Sess., A Legislative History of the Water

Pollution Control Act Amendments of 1972 1495 (Comm. Print 1973)

(hereinafter “Legislative History”).

There is no suggestion, however, that Congress intended

the CWA to encompass discharges to waters that have a

negligible relationship to interstate commerce.

The Conference Committee, which first introduced the

section defining “navigable waters” in terms of “waters of

the United States,” explained that its purpose was to assure

a broad interpretation that was “unencumbered by agency

determinations.” S. Conf. Rep. No. 1236, 92nd Cong., 2nd

Sess. 144, reprinted in 1972 U.S. Code Cong. & Ad. News

3776, 3822; 1 Legislative History at 327. The coverage envi-

sioned by Congress was clearly reflected in the subsequent

debate. Mr. Dingell, the floor manager in the House, ex-

plained the definition of “navigable waters” by stating that it

‘4s in line with. . . recent judicial opinions.”* 118 Cong. Rec.

33756-57 (1972), reprinted in 1 Legislative History at 250.

And Senator Muskie, the floor manager in the Senate,

explained the intent of the Conference Committee in similar

terms.° In short, the history shows that Congress under-

®None of the judicial opinions would encompass the discharges at

issue here. The opinions establish that navigable waters include

waters that are used as a highway in interstate commerce, see The

Daniel Ball, 77 U.S. (10 Wall.) 557 (1870). waters that have the

capability of such use, see The Montello, 87 U.S. (20 Wall.) 430 (1874),

waters that in their natural state were navigable-in-fact, despite

subsequent physical or economic changes, see Economy Light &

Power Co. v. United States, 256 U.S. 113 (1921), and waters that

could be made navigable-in-fact by reasonable improvements, see

United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940).

*Senator Muskie explained:

It is intended that the term “navigable waters” include all water

bodies, such as lakes, streams, and rivers, regarded as public

navigable waters in law which are navigable in fact. It is further

intended that such waters shall be considered to be navigable in

fact when they form, in their ordinary condition by themselves

or by uniting with other waters or other systems of transporta-

stood that the CWA would encompass those discharges that

regularly or periodically flow, either directly or by way of a

tributary, into waterways affecting interstate commerce.

Such a connection to interstate commerce by way of surface

flow is simply absent here.

The legislative history is also clear that Congress did not

intend discharges to groundwater to fall within the scope of

the Act. Although the Congress recognized “the essential

link between ground and surface waters and the artificial

nature of any distinction,” the Senate Committee that con-

sidered the bill that became the CWA concluded that the

regulation of groundwater should remain a state pre-

rogative. S. Rep. No. 414, 92d Cong., Ist Sess. 73, reprinted

im 1972 U.S. Code Cong. & Ad. News 3668, 3739; 2 Legis-

lative History at 1491. Moreover, the House explicitly re-

jected an amendment that was offered on the House floor at

the time of final passage that would expand the Act’s defini-

tion of “discharge of a pollutant” to include “any addition of

any pollutant to ground waters from any point source.” 118

Cong. Rec. 10666, 10669 (1972); 1 Legislative History at

589, 597. Of course, the CWA should not be interpreted

along lines that Congress expressly declined to enact. See

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974).

Constitutional considerations reinforce the need to curb

the all-encompassing sweep of federal power that the court

tion, such as highways or railroads, a continuing highway over

which commerce is or may be carried on with other States or

with foreign countries in the customary means of trade and

travel in which commerce is conducted today. In such cases the

commerce on such waters would have a substantial economic

effect on interstate commerce.

118 Cong. Rec. 33699 (1972), reprinted in 1 Legislative History at

178. See also S. Rep. No. 414, supra note 7, at 77, reprinted in 1972

U.S. Cong. & Ad. News 3668, 3742; 2 Legislative History at 1495.

10

of appeals has endorsed. The scope of the commerce power

may not be extended to embrace effects upon interstate

commerce so indirect and remote that the distinction be-

tween what is local and what is national in character would

be effectually obliterated. NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 37 (1987). Accordingly, this Court has

repeatedly emphasized that a regulated activity must have a

subsiantial effect on interstate commerce to be subject to

federal authority. SeeHeart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241, 258 (1964) (Congress has power to

regulate local activities that “have a substantial and harmful

effect upon [interstate] commerce”); Wickard v. Filburn,

317 U.S. 111, 125 (1942) (activity may be regulated “if it

exerts a substantial economic effect on interstate com-

merce”); NLRB v. Jones & Laughlin Steel Corp., 301 U.S.

at 37 (requiring a “close and substantial relation to inter-

state commerce”). In recognition of these limits, the Court

has stated that “the power conferred by the Commerce

Clause [is] broad enough to permit congressional regulation

of activities causing air or water pollution. . . that may have

effects in more than one State.” Hodel v. Virginia Surface

Mining & Reclamation Ass’n, 452 U.S. 264, 282 (1981)

(emphasis added). The extension of federal jurisdiction to

the discharges at issue here ignores the important constitu-

tional restraints on federal authority.

2. The decision below also directly conflicts with a deci-

sion in the court of appeals.’® The Sixth Circuit recently

Tn no reported case has any court of appeals upheld federal

jurisdiction where the connection to water affecting interstate com-

merce is as attenuated as that presented here. See, e.g., United

States v. Texas Pipe Line Co., 611 F.2d 345, 346-47 (10th Cir. 1979)

(discharge “spilled into an unnamed tributary of Caney Creek, which

discharges into Clear Boggy Creek, itself a tributary of the Red

River”); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317,

11

refused to find federal jurisdiction under the CWA because

of the absence of contact of a discharge with navigable

waters by way of “frequent flooding.” United States v.

Riverside Bayview Homes, Inc., 729 F.2d 391, 398 (6th

Cir.), cert. granted, 105 S.Ct. 1166 (1984) (No. 84-701)."' The

Sixth Circuit’s holding cannot be squared with the decision

here.

The Sixth Circuit in Riverside Bayview Homes examined

a regulation defining the jurisdiction of the United States

Army Corps of Engineers” over discharges on “wetlands.”

The court observed:

The question ... is how far away from “navigable

waters” Congress contemplated that the regulations

1320 (6th Cir. 1974) (discharge entered Little Cyprus Creek and

“Little Cyprus Creek is a tributary to Cyprus Creek, which was a

tributary to Pond River, which is a tributary to Green River”). See

also Utah v. Marsh, 740 F.2d 799, 803 (10th Cir. 1984) (upholding

jurisdiction because the discharges could have a “substantial econom-

ic effect on interstate commerce”); United States v. Byrd, 609 F.2d

1204, 1209-11 (6th Cir. 1979) (finding potential for substantial effect

on interstate commerce because discharge on wetlands “could signifi-

cantly impair the attraction [a] lake holds for interstate travelers”).

EPA’s jurisdictional theory based on groundwater flow to naviga-

ble waters is novel. Although not reaching the precise question

presented here, several courts have rejected EPA's attempts to regu-

late discharges to groundwater. See Exxon Corp. v. Train, 554 F.2d

1310, 1317-18 (5th Cir. 1977); United States v. GAF Corp., 389 F.

Supp. 1379, 1383 (S.D. Tex. 1975).

"The question presented in the case is:

Whether, under the Clean Water Act of 1977, 33 U.S.C. 1251 et

seq., federal jurisdiction to regulate discharges into “wetlands”

is limited to areas that support aquatic vegetation only by

virtue of “frequent flooding” from adjacent streams, lakes, or

seas.

"The Corps of Engineers and the EPA share responsibility for

enforcement of the Clean Water Act.

12

under the Act could drift. It is certainly not clear from

the statute that the Corps jurisdiction goes beyond

navigable waters and perhaps the bays, swamps and

marshes into which those navigable waters flow. Nei-

ther is it clear that Congress intended to subject to the

permit requirement inland property which is rarely if

ever flooded.

Id. at 397-98. The court concluded that the jurisdictional

reach of the Corps should be limited to lands subject to

frequent flooding so as to avoid both constitutional infirmity

(a taking under the Fifth Amendment) and an overbroad

construction of the Act. As the court explained in rejecting a

petition for rehearing that requested the court to authorize

Corps’ jurisdiction:

[L]ow lying lands would be converted into “navigable

waters” by the Court without regard to either their

proximity to navigable waters, streams or seas or the

inundation of such lands by such navigable waters.

Under such a construction low lying backyards miles

from a navigable waterway would become wetlands.

Neither the government nor amicus suggests an ade-

quate limiting principle. Such a construction is over-

broad and inconsistent with the language of the Act in

question, and the Court declines to adopt such a

construction.

Id. at 401. See also United States v. City of Fort Pierre, 747

F.2d 464, 466-67 (8th Cir. 1984).

In sharp contrast to the Sixth Circuit, which would re-

quire contact by “frequent flooding” between a discharge

and navigable waters to justify federal jurisdiction under

the CWA, the court of appeals below upheld jurisdiction

despite the fact that contact by flooding, at best, only

“occasionally occurs.” App. A, infra, at 4a. Resolution of

13

this conflict between the circuits is essential in achieving a

nationally consistent water pollution control, compliance,

and enforcement program.

3. The decision of the court of appeals threatens a serious

intrusion on state authority. If EPA’s jurisdiction is upheld

on the gossamer-thin contacts with interstate commerce

that are presented here, the constitutional limitation on

federal power that is established in the Commerce Clause

would for all practical purposes be obliterated.

In the government's view, federal jurisdiction attaches ifa

surface connection of a discharge to navigable waters could

occur, without regard to the frequency of the connection.

Indeed, the Regional Administrator stated that the CWA

encompasses discharges to any “geomorphic features capa-

ble of transporting pollutant laden water to an area in which

interstate commerce may be affected.” App. B, infra, at

12a. Thus, in EPA’ view, its jurisdiction would encompass a

discharge to a dry channel system of prehistoric time that

has not flowed water for centuries. Because an extraordin-

ary flood can always be imagined, EPA’s jurisdictional

theory has no limits. Indeed, this case has particular signifi-

cance in the arid Southwest because of the prevalence of

arroyos that contain flow only infrequently and as a result of

unusually heavy precipitation.

The government's groundwater theory also threatens an

unlimited expansion of federal power. As noted by the Sen-

ate in rejecting an amendment that would have brought

discharges to groundwater within the scope of the Act,

ground and surface water are hydrologically linked to each

other. S. Rep. No. 414, 92d Cong., 1st Sess. 73, reprinted in

1972 U.S. Code Cong. & Ad. News 3118, 3739; 2 Legislative

History at 1491. Thus, nearly every discharge to the ground

may emerge to surface waters in distant centuries. Indeed,

14

it is exactly this prospect on which the government relies for

jurisdiction here. But if this theory were adequate, any

discharge that disappears into the ground could be regu-

lated by the federal government and state authority would

entirely disappear.

CONCLUSION

In light of the foregoing, the petition for a writ of cer-

tiorari should be granted.

Peter J. Nickles

Richard A. Meserve

COVINGTON & BURLING

P.O. Box 7566

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20044

(202) 662-6000

G. Stanley Crout

Sunny J. Nixon

STEPHENSON, CARPENTER,

CrRouT & OLMSTEAD

P.O. Box 669

142 W. Palace Avenue

Santa Fe, New Mexico 87501

(505) 982-4611

September 1985

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 83-2338

No. 83-2339

No. 83-2356

QUIVIRA MINING COMPANY and

HOMESTAKE MINING COMPANY,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON PETITION FOR REVIEW OF ORDERS OF

THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Filed June 10, 1985

Before HOLLOWAY, Chief Judge; DOYLE, Circuit Judge,

and SAFFELS, District Judge.*

SAFFELS, District Judge

Petitioners in these consolidated cases challenge the au-

thority of the Environmental Protection Agency [hereinafter

*Honorahle Dale E. Saffels, United States District Judge, District of

Kansas, Sitting by Designation.

2a

EPA] under the Clean Water Act, as amended, 33 U.S.C. 1251,

et seq., to regulate the discharge of pollutants from uranium

mining and milling facilities into gullies or “arroyos.”

Quivira Mining Company [formerly Kerr-McGee Nuclear

Corp.] is contesting EPA permits (National Pollution Dis-

charge Elimination System Permits) to two of its uranium

milling or mining facilities near Grants, New Mexico. Those

facilities are referred to as Ambrosia Lake, which discharges

pollutants into Arroyo del Puerto under Permit No.

NM0020532, and Lee Mines, which discharges pollutants into

San Mateo Creek under Permit No. NM0028207. Homestake

Mining Company [formerly United Nuclear Homestake Part-

ners] contests Permit No. NM0020389 regulating its dis-

charges into Arroyo del Puerto. The companies contend that

Arroyo del Puerto and San Mateo Creek are not “waters of the

United States,” and therefore the EPA has no jurisdiction

under the Clean Water Act to require permits authorizing

discharges into these waters.

This appeal is from two written determinations of the EPA

Administrator [hereinafter Administrator] to deny review,

which are embodied in orders dated August 5, 1983. There are

two issues before the court. First, the court must determine

how much deference, if any, to give to the findings of the

Administrator. Petitioners contend that the court should evalu-

ate the record independently, giving no special weight to the

factual determinations of the agency, because the agency's

determinations of the facts are “jurisdictional.” The EPA con-

tends that the record is the product of an adjudicatory hearing

and the court must find the agency action to be “unsupported

by substantial evidence” before such action can be set side [sic].

The second issue is whether the discharges are subject to

regulation as discharges into the waters of the United States.

The Clean Water Act does not set forth standards for review-

ing the EPA’s decision, so this court must look to the Admin-

istrative Procedure Act for guidance. 5 U.S.C. 701, et seq;

Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F. 2d 897,

3a

904 (5th Cir. 1983). When agency action is based upon an

adjudicatory hearing, the court may not set aside the agency

decision unless it is unsupported by substantial evidence. 5

U.S.C. 706(2)(E). Substantial evidence is “such relevant evi-

dence as a reasonable mind would accept to support a con-

clusion.” Richardson uv. Perales, 402 U.S. 389, 401 (1971),

quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197,

229 (1938); Consolo v. Federal Maritime Commission, 383

U.S. 607 (1966). It is something less than the weight of the

evidence, and the possibility of drawing two inconsistent con-

clusions from the evidence does not prevent an administrative

agency’ finding from being supported by substantial evidence.

Consolo, supra, at 620.

Petitioners contend that when the agency's determinations

of fact are “jurisdictional,” the court must independently as-

sess the record, giving no special weight to the determinations

of the agency. See Crowell v. Benson, 285 U.S. 22 (1932).

We agree that the court must engage in a substantial inquiry

and an in-depth review of the record. Chrysler Corp. v. Dept. of

Transportation, 472 F. 2d 659 (6th Cir. 1972). Such an inquiry is

required by the “substantial evidence” test. Jd. We disagree,

however, that this court may engage in independent or de novo

review without giving weight to the determination of the Ad-

ministrator. Crowell v. Benson, supra, to the extent that it

retains its validity', does not apply to this case. The standards

set forth in the Administrative Procedure Act govern.

Petitioners’ argument would require that in every case in-

volving the issuance of an EPA permit to discharge pollutants

the adjudicatory hearings and special findings of the Admin-

istrator would be entitled to no special weight. Such a result

would contradict the clear meaning of the Administrative Pro-

‘See Estep v. United States, 327 U.S. 114, 142 (1946) (J. Frankfurter,

concurring), that one had supposed that the doctrine of Crowell v. Benson,

supra, “had earned a deserved repose.”

4a

cedure Act and would deprive the appellate courts of the exper-

tise of the agency in determining such matters.’

Viewed in the light of the substantial evidence test, the court

finds that both the Arroyo del Puerto and the San Mateo Creek

flow for short distances from the discharge points. Although

neither the Arroyo del Puerto nor the San Mateo Creek is

navigable-in-fact, surface flow occasionally occurs, at times of

heavy rainfall, providing a surface connection with navigable

water independent of the underground flow. Additionally, the

waters of the Arroyo del Puerto and the San Mateo Creek soak

into the earth’s surface, become part of the underground ac-

quifers, and after a lengthly period, perhaps centuries, the

underground water moves toward eventual discharge at

Horace Springs or the Rio San Jose.

Petitioners emphasize language in Avoyelles Sportman’s League, Inc. v.

Marsh, 715 F. 2d 897 (5th Cir. 1983), from which petitioners infer that de novo

review is appropriate when the court must determine whether the EPA has

“any” jurisdiction over a particular discharge of pollutants. In Avoyelles, the

plaintiffs argued that the district court’s determination of the wetlands issue

under the Clean Water Act was correctly decided under de novo review

because the EPA's determination was a jurisdictional decision. The court

disagreed and noted that the issue in that case was the extent of the EPA’s

jurisdiction, not the existence of jurisdiction. The landowners there had

conceded that thirty-five percent (35%) of the tract was subject to agency

jurisdiction. The question was the extent of the agency jurisdiction beyond

that 35% of the tract.

The court did not have before it the question of what standard of review

would be employed when the agency fact-finding was determinative of the

“existence of agency jurisdiction.” The supposed implications of the language

of Avoyelles are not binding on the court. The distinction attempted to be

drawn by petitioners between the “extent” of jurisdiction and the “existence”

of jurisdiction is a distinction without a difference. In the instant case, the

question is one of both the existence and the extent of agency jurisdiction.

Petitioners concede that the EPA has jurisdiction over discharges of pollut-

ants into the waters of the United States. Determination of whether certain

water is a “water of the United States” is certainly a question going to the

extent of the EPA's jurisdiction. In this case, under our limited facts, the

question is also determinative of the existence of jurisdiction.

EERSTE Neo ne crate ten Un RTS eE SST RET TRAN OSE eae eT a oe eae eee

5a

It is the national goal of the Clean Water Act to eliminate the

discharge of pollutants into navigable waters. 33 U.S.C.

1251(a)(1). The term “navigable waters” means “the waters of

the United States, including the territorial seas.” In United

States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979),

this court noted that the Clean Water Act is designed to regu-

late to the fullest extent possible* sources emitting pollution

into rivers, streams and lakes. Jd. at 373. “The touchstone of

the regulatory scheme is that those needing to use the waters

for waste distribution must seek and obtain a permit to dis-

charge that waste, with the quantity and quality of the dis-

charge regulated.” Jd. It is the intent of the Clean Water Act to

cover, as much as possible, all waters of the United States

instead of just some. Deltona Corp. v. United States, 657 F.2d

1184, 1186 (Ct.Cl. 1981).

The extent of the Clean Water Act’s coverage of discharges of

pollution is illustrated by a review of some of the cases which

have been before the United States Court of Appeals for the

Tenth Circuit. In Ward v. Coleman, 598 F.2d 1187 (10th Cir.

1979), reversed on other grounds 448 U.S. 242 (1980), the court

found that Boggie Creek, a tributary of the Arkansas River, is

a navigable water of the United States for purposes of the

Clean Water Act because the Arkansas River is navigable in

fact. Id., 598 F.2d at 1188, n.1. In United States v. Earth

Sciences, Inc., supra, the court found the Rito Seco to be a

“water of the United States,” although it is not navigable in fact

nor does it transport any goods or materials, and although it is

located entirely in Costilla County, Colorado. Although the

Rito Seco did not provide a very significant link in the chain of

interstate commerce, the court found that the stipulation of

facts indicated at least some interstate impact from the stream

and that was all that was necessary under the act. There, the

facts were that the stream supported trout and some beaver,

°The Constitution of the United States authorizes the federal government

to “regulate Commerce . . . among the several states.” U.S. Const., Art.

I,§ 8. Congress has plenary authority to regulate commerce falling within

the grant. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824).

6a

the water collected in the reservoirs was used for agricultural

irrigation, and the resulting products were sold into interstate

commerce. The court stated, “It seems clear Congress intend-

ed to regulate discharges made into every creek, stream, river

or body of water that in any way may affect interstate com-

merce. Every court to discuss the issue has used a commerce

power approach and agreed upon that interpretation.” Jd. at

375. In United States v. Texas Pipe Line Co., 611 F.2d 345 (10th

Cir. 1979), the court found that the Clean Water Act covered oil

spilled into an unnamed tributary of Caney creek, which dis-

charges into Clear Boggie Creek, itself a tributary of the Red

River. The record reflected that there was a small flow of water

in the unnamed tributary at the time of the spill, but there was

no evidence that the other streams were or were not flowing.

The court stated, “Congress did not in this Act use the term

‘navigable waters’ in the traditional sense; Congress intended

to extend the coverage of the act as far as permissible under the

commerce clause.” Jd. at 347. Even though nothing in the

record supported an interstate commerce effect of this un-

named tributary, the court found that it was “without ques-

tion” within the intended coverage of the Clean Water Act. The

result was based substantially on the fact that the tributary

was flowing a small amount of water at the time of the spill. “It

makes no difference that a stream was or was not at the time of

the spiil discharging water continuously into a river navigable

in tne traditional sense.” Jd.

This court’s findings in Earth Sciences and Texas Pipe Line

compel a finding herein affirming the decision of the EPA.

Substantial evidence here supports the Administrator's find-

ings that both the Arroyo del Puerto and San Mateo Creek are

waters of the United States. Substantial evidence before the

Administrator supports his funding that during times of in-

tense rainfall, there can be a surface connection between the

Arroyo del Puerto, San Mateo Creek and navigable-in-fact

streams. Further, the record supports the finding that both the

Arroyo del Puerto and San Mateo Creek flow for a period after

the time of discharge of pollutants into the waters. Further, the

2 wep a ee

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flow continues regularly through underground acquifers fed by

the surface flow of the San Mateo Creek and Arroyo del Puerto

into navigable-in-fact streams. The court finds that the impact

on interstate commerce is sufficient enough to satisfy the com-

merce clause. And, as noted above, it was the clear intent of

Congress to regulate waters of the United States to the fullest

extent possible under the commerce clause.

The decision of the Administrator is AFFIRMED.

8a

APPENDIX B

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION VI

Initial Decision

IN THE MATTER OF:

Kerr-McGee Nuclear Corporation Corporation

Ambrosia Lake Facility

NPDES Permit NM 0020542 [sic]

FINDINGS

A. The Discharge

1. Kerr-McGee Nuclear corporation (Kerr-McGee) operates

seven uranium mines and a uranium milling facility in the

vicinity of Ambrosia Lake, New Mexico. [Ganus, KM-1.]

2. Kerr-McGee pumps groundwater infiltrating the mine shafts

to the surface and diverts it to the milling facility for use in the

milling process and disposal. [Ganus, KM-1.]

2. Kerr-McGee disposes of approximately 85% of the water in

tailings ponds and discharges the rest into Arroyo del Puerto.

{[Ganus, KM-1.]

B. The “Water”

1. Arroyo del Puerto is an arroyo or gully incised by the erosive

action of water flowing over alluvial soils deposited in the San

Mateo Valley in the geologic past. [Nylander, EPA-42. ]

2. Approximately three miles downstream from Kerr-McGee's

discharge point, Arroyo del Puerto intersects San Mateo

Creek, another arroyo. [Ganus, KM-1.]

9a

3. From its junction with Arroyo del Puerto, San Mateo Creek

continues in a southwesterly direction until it crosses the line

between Valencia and McKinley Counties near “Deadman’s

Curve,” a bend in Highway 53. At “Deadman’s Curve,” the bed

of the creek narrows as it passes through culverts under the

highway. Below the highway, San Mateo Creek’s channel loses

its incised character, branching out into a wider braided config-

uration. [Nylander, EPA-42; Roundy, Tr. 376, EPA-18; AL-7. ]

5. Below “Deadman’s Curve,” the braided channel of San Mateo

Creek crosses the Bert Roundy Ranch, winter range for a cow-

calf operation. Spreader dams obstruct the channel in this

area. [Nylander, EPA-42; Roundy, Tr. 382; EPA-18; AL-7.]

6. Below the Bert Roundy Ranch, United Nuclear Homestake

Partners has erected a tailings pile in the bed of the arroyo,

obstructing it. Although aerial photographs taken in 1935 show

the channel continuing to Rio San Jose, subsequent agri-

cultural and residential development associated with the town

of Grants, New Mexico now obstructs the historical channel

below the tailings pile. [Nylander, EPA-42; Robinson, SRI-43;

SW-1; SW-4; EPA-18. ]

C. Flow

1. In their natural states, Arroyo del Puerto and San Mateo

Creek are ephemeral streams, containing surface flow only in

response to episodic precipitation. As such flows travel down

the arroyos, they are diminished by evapotranspiration and

infiltration. Thus, the distance that surface flow continues

down the streams is primarily a function of the amount of

precipitation. [Ganus, KM-1; Nylander, EPA-42.]

3. Kerr-McGee's discharge, comingled with the discharges of

other uranium mining facilities on Arroyo del Puerto and San

Mateo Creek, results in surface flow in San Mateo Creek toa

point approximately 1.3 miles below its junction with Arroyo

del Puerto, even in the absence of precipitation. [Ganus,

KM-1.]

10a

4. Occasional natural flows induced by precipitation transport

Kerr-McGee's discharge further down San Mateo Creek. Thus,

on various occasions, surface flow in the creek has reached

“Deadman’s Curve” [Carver, Tr. 340; Roundy, Tr. 375],

spreader dams on the Bert Roundy Ranch [Roundy, Tr. 382],

and the United Nuclear Homestake Partner's tailings pile

{Roundy, Tr. 375].

5. On relatively rare occasions, precipitation contributes

enough water to the surface flow in San Mateo Creek that it

continues past the tailings pile, following roadbeds and flowing

across open fields, gradually cutting a new channel in the

process, until it reaches Rio San Jose near the Zuni View

Trailer Park. Although such events are aperiodic, a local resi-

dent estimates their occurrence on the average of once every

five years. [Robinson, SRI-43; Carver, Tr.344-347; Nylander,

EPA-42. }

6. Some water infiltrating the channel of San Mateo Creek

migrates through the underlying alluvium, approximately du-

plicating the course of the surface channel. At Horace Springs,

this underground flow reemerges and enters Rio San Jose.

[Ganus, KM-1; KM-2, Tr. 28; Nylander, EPA-42, Tr. 233;

AL-4A; AL-4B; AL-4C.]

7. The travel time for this underground flow depends on the

distance from its infiltration point to Horace Springs. Kerr-

McGee's discharge takes between 154 and 1,000 years to mi-

grate the 23 miles from its usual infiltration point 1.3 miles

below the junction of Arroyo del Puerto and San Mateo Creek

to Rio San Jose. When precipitation augments surface flow in

San Mateo Creek, thus carrying the discharge further down-

stream, travel time is correspondingly less. [Nylander,

EPA-42, Tr. 232-233; Ganus, KM-2, Tr. 27-28.]

8. Rio San Jose flows into Rio Puerco, which flows into the Rio

Grande. [Nylander, EPA-42; EPA-21.]

D. Commerce

1. The Bert Roundy Ranch is winter range for Mr. Roundy’s

cow-calf operation which produces 350-450 calves per year.

[Roundy, Tr. 392.]

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2. Mr. Roundy consigns some of the calves to the Karler Pack-

ing Company in Albuquerque for auction in the interstate

cattle market. [Roundy, Tr. 372-373, 377-378; Nylander,

EPA-42, Tr. 181-186; EPA-30A EPA-30B; EPA-30C; EPA-32.]

3. Mr. Roundy uses spreader dams to divert surface flow in San

Mateo Creek, thereby irrigating grass consumed by his cattle.

(Nylander, EPA-42; Roundy, Tr. 382.]

4. Although Mr. Roundy’s cattle drink from San Mateo Creek

when water flows therein, they normally consume water de-

rived from the alluvium underlying the creek. [Roundy, Tr.

380; Nylander, EPA-42, Tr. 181-182; AL-3B; AL4A, AL-4B;

AL-6; EPA-37, EPA-38.]

5. The Rio Grande River is a navigable water of the United

States. [Nylander, EPA-42. ]

CONCLUSIONS

1. Pollution of Arroyo del Puerto is capable of affecting inter-

state commerce because:

a. Arroyo del Puerto is tributary to the Rio Grande, a naviga-

ble water of the United States, and

b. Arroyo del Puerto is tributary to San Mateo Creek, a

stream affecting interstate commerce.

2. Under the Federal Water Pollution Control Act Amend-

ments of 1972, 33 USC 1251, et seq, Arroyo del Puerto is a

“navigable water.”

DISCUSSION

The sole issue of this adjudication is whether or not Arroyo

del Puerto is a “navigable water” as defined in the Federal

Water Pollution Control Acts Amendments of 1972 (FWCPA),

33 USC 1251, et seq, and thus subject to the regulatory au-

thority of the United States Environmental Protection Agency

(EPA). In essence, Kerr-McGee argues Arroyo del Puerto is

not a “navigable water” because it does not regularly contrib-

12a

ute surface flow to a “navigable water” of the United States,

i.e., a water navigable in fact. This argument is unsupported by

the law.

In FWCPA, the term “navigable waters” generally refers to

all waters located within the geographic boundaries of the

United States. United States v. Holland, 373 F.Supp. 665, 672

(M.D. Fla. 1974); United States v. Ashland Oil and Transpor-

tation Co., 364 F.Supp. 349, 351 (W.D. Ky. 1973), aff'd 504 F.2d

1317 (6th Cir. 1974); United States v. Phelps Dodge Corpora-

tion, 391 F. Supp. 1181, 1185 (D. Az. 1975). In determining

whether or not a particular area is a “water” and thus included

within this definition, the courts have adopted a functional

approach, applying the term to geomorphic features capable of

transporting pollutant laden water to an area in which inter-

state commerce may be affected.' Thus, the term has been

applied to areas which are not always inundated, such as wet-

lands, P.F.Z. Properties, Inc. v. Train, 393 F. Supp. 1370 (D.

D.C. 1975); manmade “mosquito canals” above mean high

water level, United States v. Holland, supra; diked evapora-

tion ponds, Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.

1978); an intermittent stream, United States v. Texas Pipeline

Co., 611 F.2d 345 (10th Cir. 1979); and a normally dry arroyo,

United States v. Phelps Dodge Corporation, supra.

In United States v. Phelps Dodge Corporation, supra, the

court explained this functional approach at 391 F. Supp. 1187:

For the purposes of this Act to be effectively carried into

realistic achievement, the scope of its control must extend

‘EPA's General Counsel also takes this functional approach, opining that

“navigable waters” are those, the pollution of which is capable of affecting

interstate commerce. 2 Gen. Couns. Op. 139 (February 6, 1973). In former 40

CFR 125.1(p), EPA provided an exemplary list of such waters. Contrary to

Kerr-McGee's assertions, that list does not purport to be nor is it exclusive.

See In Re Ely, Nevada, 2 Gen. Couns. Op. 129 (NPDES Decision 30, Sep-

tember 18, 1975); Jn Re Phoenix, Arizona, 2 Gen. Couns. Op. 283 (NPDES

Decision 53, December 17, 1976). Indeed, no administrative agency may

lawfully narrow the scope of the statutory definition through regulation.

N.R.D.C. v. Callaway, 392 F.Supp. 685, 686 (D. DC. 1975).

li ae hee

13a

to all pollutants which are discharged into any waterway,

including normally dry arroyos, where any water which

might flow therein could reasonably end up in any body of

water, to which or in which there is some public interest,

including underground waters.

By definition, there is a public interest in navigable waters of

the United States, i.e., waters navigable in fact. See e.g.

United States v. Appalachian Electric Power Co., 311 U.S.

377, 404-405, 61 S.Ct. 291, 298 (1940). Thus, if the water

flowing through Arroyo del Puerto reaches such a water, fur-

ther evidence of interstate commerce is unnecessary to find the

arroyo a “navigable water.” See e.g. United States v. Texas

Pipe Line Co., supra, at 611 F.2d 347.

Historically, water from Arroyo del Puerto flowed through

San Mateo Creek, Rio San Jose, and Rio Puerco to the Rio

Grande, a navigable river of the United States. Admitting that

this tributary relationship existed in the past, Kerr-McGee

contends that surface flow from San Mateo Creek into Rio San

Jose now occurs too irregularly, if at all, to support regulatory

jurisdiction.

In fact, such surface flow is a relatively rare event. Arroyo

del Puerto and San Mateo Creek lose much of their surface

water to evapotranspiration and infiltration, forces enhanced

by the many obstructions which have been erected in the

historic bed of the creek.? Nevertheless, upstream precipita-

tion events occasionally generate enough flow so that a surface

connection exists. Larry Carver, a long time resident of

Grants, New Mexico who has observed such events,’ estimates

?Although the presence of changed conditions or artificial obstructions to

flow is irrelevant to a determination of “navigability” under FWPCA, P.F.Z.

Properties v. Train, supra, at 393 F.Supp. 1380; Jn Re Central Iilinois Public

Service Co., 2 Gen. Couns. Op. 27 (NPDES Decision 7, April 8, 1975); Jn Re

Phoenix, Arizona, supra, the record does not indicate how much more

frequently the surface connection would exist in the absence of obstruction.

‘Mr. Ganus, a Kerr-McGee witness, speculates that Mr. Carver actually

observed the waters of Lobo Creek, another arroyo which inundates Grants

more frequently than San Mateo Creek [Ganus, KM-2.] Mr. Carver's testi-

mony, however, shows that he knows the difference between San Mateo

Creek flooding and Lobo Creek flooding. (Carver, Tr. 349-351.]

l4a

that they occur on an average of once every five years. (Carver,

Tr. 336.] In cases involving intermittent or ephemeral streams

like San Mateo Creek, however, the fact that a tributary rela-

tionship occurs “only once a year, or even less frequently,” is

irrelevant. Jurisdiction is still present. In Re Phoenix, Ari-

zona, supra at 2 Gen. Coun. Op. 290.

Even were there never surface flow between San Mateo

Creek and Rio San Jose, the creek would still be a tributary of

navigable waters of the United States. Water infiltrating the

bed of San Mateo Creek is not “lost” to the Rio San Jose. All

parties to this adjudication agree that at least some of this

infiltrating water migrates through the shallow alluvium un-

derlying San Mateo Creek to Horace Springs, where it re-

emerges and flows into the Rio San Jose. This sudsurface

connection independently supports a conclusion that Arroyo

del Puerto is tributary to the Rio Grande and thus a “navigable

water.” See In Re Phoenix, Arizona, 2 Gen. Couns. Op. 405

(NPDES Decision 70, August 9, 1978).

It was unnecessary for EPA to trace the flow from Arroyo del

Puerto as far as Rio San Jose in any event. San Mateo Creek

and its underlying alluvium are themselves waters “in which

there is some public interest” because their pollution could

affect interstate commerce.

Bert Roundy runs a cow-calf operation, maintaining a more

or less constant number of cows for breeding and selling the

calves they produce. During Spring and Summer, Mr. Roundy’s

cattle graze near Bluewater, New Mexico. Around the first of

September, Mr. Roundy moves his cattle to land adjacent to

San Mateo Creek, between the county line and the United

Nuclear Homestake Partner's tailings pile. About a month

later, he cuts out the calves, 350 to 450 of which are shipped to

Albuquerque or Belen, New Mexico for slaughter or auction in

the interstate market. The cows and fewer than 20 calves

retained for replacement breeding stock remain on the land

adjacent to the creek until the following year. [Roundy, Tr. 380,

392, 395; Nylander, EPA-42; EPA-30.]

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Water from San Mateo Creek plays an integral role in Mr.

Roundy’s cow-calf operation. Mr. Roundy and his father before

him have built earthen “spreader” dams across the creek, thus

checking the occasional flow of water therein and causing it to

inundate and saturate a greater surface area. This primitive

irrigation promotes the growth of grass, thus increasing the

number of cattle that may forage on the land and, correspond-

ingly, the number of cattle available for sale in the interstate

market. [Roundy, Tr. 382].

Although Mr. Roundy’s cattle occasionally drink from San

Mateo Creek, surface flow therein is too infrequent to be a

reliable drinking water supply for them. Such a supply is

provided by the alluvium underlying the creek, which is tapped

by a number of wells on the ranch. It is most probable that Mr.

Roundy uses these wells to water his cattle. [Roundy, Tr. 380;

Nylander, EPA-42, Tr. 181-182; Al-3B; AL-4A; AL-4B; AL-6;

EPA-37; EPA-38. ]

Pollution of the waters of San Mateo Creek or the underlying

alluvium would affect Mr. Roundy’s operation and the inter-

state cattle industry of which it is part. Without a reasonably

clean water supply for watering and irrigation, such a business

could not survive or contribute cattle to the interstate market.‘

Mr. Roundy’s ranch is, of course, only an example demon-

strating the manner in which pollution of San Mateo Creek and

the alluvium beneath it could affect interstate commerce. Be-

cause of the slowness of underground flow through the al-

luvium, its pollution by Kerr-McGee’s discharge will have little,

if any, effect on the present ranching operation. Nevertheless,

‘To establish San Mateo Creek's potential effect on interstate commerce, it

is unnecessary that cattle have been transported across state lines after

quaffing alluvial waters or eating irrigated grass. See e.g. Wickard v. Fil-

burn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 90-91 (1942); Maryland v. Wirtz, 392

U.S. 183, 192-193, 88 S. Ct. 2017, 2022 (1968). It is here noted, however, that

Mr. Roundy’s cattle operation formerly used pastures in Colorado as summer

range and shipped stock to feedlots in Kansas and Nebraska. [Roundy, Tr.

372, 380, 395.)

16a

such pollution could affect similar commerce in the future.

Accordingly, San Mateo Creek and its tributary, Arroyo del

Puerto, are “navigable waters” which FWPCA mandates EPA

protect.

March 10, 1981

/s/

FRANCES E. PHILLIPS

Acting Regional Administrator

17a

APPENDIX C

BEFORE THE ADMINISTRATOR

U.S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

NPDES Permit No. NM-0020542 [sic]

In the Matter of:

Kerr-McGee Nuclear Corporation (Ambrosia Lake Facility)

Permittee

ORDER DENYING PETITION FOR REVIEW

In a petition for review filed pursuant to 40 CFR

§ 125.36(n)(1)(1978), Kerr-McGee Nuclear Corporation (Kerr-

McGee) requested review of the Regional Administrator's ini-

tial decision in which it was concluded that Kerr-McGee’s dis-

charges of mineshaft water from its uranium mines in the

vicinity of Ambrosia Lake, New Mexico, are subject to the

_ Clean Water Act’s requirements governing NPDES permits.

Kerr-McGee is not contesting any of the terms or conditions of

the above referenced NPDES permit; instead, it argues that

the Regional Administrator's decision unlawfully expands the

Agency’s jurisdiction under the Clean Water Act to include its

discharges. The Regional staff did not submit a responsive

petition.

As has been decided on numerous occasions in the past (e.g.,

Boston Edison Company, NPDES Appeal No. 78-7, August

28, 1978; Kerr-McGee Nuclear Corporation (Church Rock Fa-

cility), NPDES Appeal No. 80-3, May 15, 1980; JT Corpora-

tion (Ascension Parish, Louisiana), NPDES Appeal No. 83-2,

July 21, 1983), a petition for review is not normally accepted

unless the initial decision is clearly erroneous or involves an

exercise of discretion or policy which is important and which

18a

should be reviewed as a discretionary matter. The regulations

do not confer an automatic right to have the initial decision

reviewed on appeal. The burden of demonstrating that the

permit should be reviewed is therefore on the person petition-

ing for review. In the instant proceeding, the following consid-

erations lead me to conclude that the initial decision does not

warrant review.

The threshold issue in this proceeding is jurisdictional, 7.e.,

whether the ephemeral stream (arroyo) into which Kerr-

McGee's mineshaft water is discharged! is part of the “waters of

the United States,” thus making the discharges subject to the

NPDES permit requirements of the Clean Water Act, 33

U.S.C. § 1251, et seq.” In general, Kerr-McGee'’s objections to

the initial decision center on the fact that the jurisdictional

requisites were deemed to have been fully satisfied notwith-

standing the fact that there is no continuity of flow between the

point of discharge and the point where navigable-in-fact waters

are reached; and that, in portions of the channel, the water

normally only flows underground (by migration through the

alluvium underlying the course of the surface channel), and

may take centuries before reemerging as part of the surface

flow. These findings do not, however, stand alone. The Regional

Administrator also found that surface flow does occasionally

occur, albeit on an average of not more than once every five

years, thereby providing a surface connection independent of

'The discharges are to an arroyo (Arroyo del Puerto), which intersects

another arroyo (San Mateo Creek), which, in turn, after branching out into a

braided configuration, crosses a ranch where the channel is obstructed by

spreader dams; the flow then continues to a tailings pile erected in the bed of

the arroyo and eventually reaches Rio San Jose; the latter, in turn, flows into

Rio Puerco, which then flows into the Rio Grande.

2Under § 301(a) of the Act, 33 U.S.C. § 1311(a), it is unlawful, inter alia,

for any person to discharge any pollutant without an NPDES permit issued

pursuant to § 402 of the Act, 33 U.S.C. § 1342. The term “discharge of a

pollutant” is defined in § 502(12) as “any addition of any pollutant to naviga-

ble waters from any point source,” 33 U.S.C. § 1362(12). The term “navigable

waters” is defined in § 502(7) as “waters of the United States,” 33 U.S.C.

§ 1362(7).

19a

the underground flow. Also, the Regional Administrator found

that water in a connecting arroyo, including its underground

component, could affect interstate commerce by its effects on

pasturage and water supplies for a downstream cattle ranch.

Taking these findings and conclusions together, it is clear that

the Regional Administrator's initial decision cannot be termed

“clearly erroneous” for purposes of deciding whether or not to

accept review. Under the applicable court decisions, the defini-

tion of “navigable waters” in the statute is to be given the

broadest possible interpretation consistent with constitutional

principles. United States v. Earth Sciences, Inc., 599 F.2d 368,

375 (10th Cir. 1979)(“It seems clear Congress intended to regu-

late discharges made into every creek, stream, river or body of

water that in any way affect interstate commerce.”); Deltona

Corp. v. United States, 657 F.2d 1184, 1186 (Ct.Cl.-1981)(“It is

now well settled that Congress, by adopting this 1972 defini-

tion [of “navigable waters”], ‘asserted federal jurisdiction over

the nation’s waters to the maximum extent permissible under

the Commerce Clause of the Constitution,’ [citations omit-

ted].”). In United States v. Phelps Dodge Corporation, 391 F.

Supp. 1181, 1187 (D.Ariz. 1975), a case involving criminal

charges brought against defendant for discharging pollutants

without an NPDES permit, the district court construed the

scope of the Agency’s jurisdiction to specifically embrace the

discharges of pollutants into normally dry arroyos, even if the

water in the arroyo eventually ended up in underground

waters:

For the purposes of this Act to be effectively carried

into realistic achievement, the scope of its control must

extent to all pollutants which are discharged into any

waterway, including normally dry arroyos, where any

water which might flow therein could reasonably end up in

any body of water, to which or in which there is some

public interest, including underground waters.

The intention of Congress was to eliminate or to reduce

as much as possible all water pollution throughout the

United States both surface and underground. To achieve

20a

this purpose Congress provided the Administrator broad

powers, including emergency powers set out in Title 33,

United States Code, Section 1364.

See also Leslie Salt Co. v. Froehlke, 578 F.2d 742, 745 (9th Cir.

1978)(quoting Phelps Dodge, supra); Avoyelles Sportmen’s

League, Inc. v. Alexander, 511 F. Supp. 278, 287 (also quoting

Phelps Dodge). Accordingly, the petition for review is denied.

So ordered.

/s/

Ronald L. McCallum

Judicial Officer (A-101)

Dated: August 5, 1983

2la

APPENDIX D

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION VI

Initial Decision

IN THE MATTER OF:

United Nuclear-Homestake Partners

Grants, New Mexico

NPDES Permit NM 0020389

FINDINGS

A. The Discharge

1. United Nuclear-Homestake Partners (UNHP) operates four

uranium mines and a uranium milling facility in the vicinity of

Grants, New Mexico. [Stipulation.']

2. UNHP pumps groundwater infiltrating the mine shafts to

the surface and diverts it to the milling facility for removal of

leached uranium through ion exchange. (Stipulation. ]

3. &)\though it recirculates much of the water through the mine

for additional leaching, UNHP discharges approximately

936,000 gallons per day to Arroyo del Puerto. (Stipulation. ]

4. The discharged water contains Radium 226, Uranium, Se-

lenium, and Molybdenum. [Stipulation .]

'The contentions of the parties and facts upon which they are based are

substantially similar to those of another adjudication, Jn Re Kerr-McGee

Nuclear Corporation, (NPDES Permit NM 0020542 [sic], March 10, 1981).

The parties have stipulated that the hearing record in that case, together

with supplementary information about UNHP’s plant processes and dis-

charge location, shall form the record herein.

B. The “Water”

1. Arroyo del Puerto is an arroyo or gully incised by the erosive

action of water flowing over alluvial soils deposited in the San

Mateo Valley in the geologic past. [Nylander, EPA-42.]

2. Approximately three and one half miles downstream from

UNHP’s discharge point, Arroyo del Puerto intersects San

Mateo Creek, another arroyo. [Ganus, KM-1; Stipulation. ]

3. From its junction with Arroyo del Puerto, San Mateo Creek

continues in a southwesterly direction until it crosses the line

between Valencia and McKinley Counties near “Deadman’s

Curve,” a bend in Highway 53. At “Deadman’s Curve,” the bed

of the creek narrows as it passes through culverts under the

highway. Below the highway, San Mateo Creek’s channel loses

its incised character, branching out into a wider braided config-

uration. [Nylander, EPA-42; Roundy, Tr. 376, EPA-18; AL-7. ]

5. Below “Deadman’s Curve,” the braided channel of San Mateo

Creek crosses the Bert Roundy Ranch, winter range for a cow-

calf operation. Spreader dams obstruct the channel in this

area. [Nylander, EPA-42; Roundy, Tr. 382; EPA-18; AL-7.]

6. Below the Bert Roundy Ranch, UNHP has erected a tailings

pile in the bed of the arroyo, obstructing it. Although aerial

photographs taken in 1935 show the channel continuing to Rio

San Jose, subsequent agricultural and residential development

associated with the town of Grants, New Mexico now obstructs

the historical channel below the tailings pile. [Nylander,

EPA-42; Robinson, SRI-48; SW-1; SW-4; EPA-i8. ]

C. Flow

1. In their natural states, Arroyo del Puerto and San Mateo

Creek are ephemeral streams, containing surface flow only in

response to episodic precipitation. As such flows travel down

the arroyos, they are diminished by evapotranspiration and

infiltration. Thus, the distance that surface flow continues

down the streams is primarily a function of the amount of

precipitation. [Ganus, KM-1; Nylander, EPA-42.]

23a

3. UNHP'’s discharge, comingled with the discharges of other

uranium mining facilities on Arroyo del Puerto and San Mateo

Creek, results in surface flow in San Mateo Creek to a point

approximately 1.3 miles below its junction with Arroyo del

Puerto, even in the absence of precipitation. [Ganus, KM-1.]

4. Occasional natural flows induced by precipitation transport

UNHP's discharge further down San Mateo Creek. Thus, on

various occasions, surface flow in the creek has reached

“Deadman’s Curve” [Carver, Tr. 340; Roundy, Tr. 375],

spreader dams on the Bert Roundy Ranch [Roundy, Tr. 382],

and the UNHP tailings pile [Roundy, Tr. 375].

5. On relatively rare occasions, precipitation contributes

enough water to the surface flow in San Mateo Creek that it

continues past the tailings pile, following roadbeds and flowing

across open fields, gradually cutting a new channel in the

process, until it reaches Rio San Jose near the Zuni View

Trailer Park. Although such events are aperiodic, a local resi-

dent estimates their occurrence on the average of once every

five years. [Robinson, SRI-43; Carver, Tr. 344-347; Nylander,

EPA-42. ] 3

6. Some water infiltrating the channel of San Mateo Creek

migrates through the underlying alluvium, approximately du-

plicating the course of the surface channel. At Horace Springs,

this underground flow reemerges and enters Rio San Jose.

[Ganus, KM-1, Km-2, Tr. 28; Nylander, EPA-42, Tr. 233;

AL-4A; AL-4B; AL-4C.]

7. The travel time for this underground flow depends on the

distance from its infiltration point to Horace Springs. UNHP’s

discharge takes between 154 and 1,000 years to migrate the 23

miles from its usual infiltration point 1.3 miles below the junc-

tion of Arroyo del Puerto and San Mateo Creek to Rio San Jose.

When precipitation augments surface flow in San Mateo Creek,

thus carrying the discharge further downstream, travel time is

correspondingly less. [Nylander, EPA-42, Tr 232-233; Ganus,

KM-2, Tr. 27-28.]

24a

8. Rio San Jose flows into Rio Puerco, which flows into the Rio

Grande. [Nylander, EPA-42; EPA-21.]

D. Commerce

1. The Bert Roundy Ranch is winter range for Mr. Roundy’s

cow-calf operation which produces 350-450 calves per year.

[Roundy, Tr. 392.]

2. Mr. Roundy consigns some of the calves to the Karler Pack-

ing Company in Albuquerque for auction in the interstate

cattle market. [Roundy, Tr. 372-373, 377-378; Nylander,

EPA-42, Tr. 181-186; EPA-30A; EPA-30B; EPA-30C; EPA-32. ]

3. Mr. Roundy uses spreader dams to divert surface flow in San

Mateo Creek, thereby irrigating grass consumed by his cattle.

[Nylander, EPA-42; Roundy, Tr. 382. ]

4. Although Mr. Roundy’s cattle drink from San Mateo Creek

when water flows therein, they normally consume water de-

rived from the alluvium underlying the creek. [Roundy, Tr.

380; Nylander, EPA-42, Tr. 181-182; AL-3B; AL4A; AL-4B;

AL-6; EPA-37, EPA-38.]

5. The Rio Grande River is a navigable water of the United

States. [Nylander, EPA-42.]

CONCLUSIONS

1. Pollution of Arroyo del Puerto is capable of affecting inter-

state commerce because:

a. Arroyo del Puerto is tributary to the Rio Grande, a naviga-

ble water of the United States, and

b. Arroyo del Puerto is tributary to San Mateo Creek, a

stream affecting interstate commerce.

2. Under the Federal Water Pollution Control Act Amend-

ments of 1972, 33 USC 1251, et seq, Arroyo del Puerto is a

“navigable water.”

25a

DISCUSSION

The sole issue of this adjudication is whether or not Arroyo

del Puerto is a “navigable water” as defined in the Federal

Water Pollution Control Act Amendments of 1972 (FWCPA),

33 USC 1251, et seq, and thus subject to the regulatory au-

thority of the United States Environmental Protection Agency

(EPA). In essence, UNHP argues Arroyo del Puerto is not a

“navigable water” because it does not regularly contribute

surface flow to a navigable water of the United States, i.e., a

water navigable in fact. This argument is unsupported by the

law.

In FWCPA, the term “navigable waters” generally refers to

all waters located within the geographic boundaries of the

United States. United States v. Holland, 373 F.Supp. 665, 672

(M.D. Fla. 1974); United States v. Ashland Oil and Transpor-

tation Co., 364 F.Supp. 349, 351 (W.D. Ky. 1973), aff'd 504 F.2d

1317 (6th Cir. 1974); United States v. Phelps Dodge Corpora-

tion, 391 F. Supp. 1181, 1185 (D. Az. 1975). In determining

whether or not a particular area is a “water” and thus included

within this definition, the courts have adopted a functional

approach, applying the term to geomorphic features capable of

transporting pollutant laden water to an area in which inter-

state commerce may be affected.? Thus, the term has been

applied to areas which are not always inundated, such as wet-

lands, P.F.Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (D.

D.C. 1975); manmade “mosquito canals” above mean high

water level, United States v. Holland, supra; diked evapora-

tion ponds, Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.

“EPA's General Counsel also takes this functional approach, opining that

“navigable waters” are those, the pollution of which is capable of affecting

interstate commerce. 2. Gen. Couns. Op. 139 (February 6, 1973). In former 40

CFR 125.1(p), EPA provided an exemplary list of such waters. Contrary to

UNHP’ assertions, that list does not purport to be nor is it exclusive. See /n

Re Ely, Nevada, 2 Gen. Couns. Op. 129 (NPDES Decision 30, September 18,

1975); In Re Phoenix, Arizona, 2 Gen. Couns. Op. 283 (NPDES Decision 53,

December 17, 1976). Indeed, no administrative agency may lawfully narrow

the scope of the statutory definition through regulation. N.R.D.C. v. Call-

away, 392 F.Supp. 685, 686 (D. D.C. 1975).

26a

1978); an intermittent stream, United States v. Texas Pipeline

Co., 611 F.2d 345 (10th Cir. 1979); and a normally dry arroyo,

United States v. Phelps Dodge Corporation, supra.

In United States v. Phelps Dodge Corporation, supra, the

court explained this functional approach at 391 F.Supp. 1187:

For the purposes of this Act to be effectively carried into

realistic achievement, the scope of its control must extend

to all pollutants which are discharged into any waterway,

including normally dry arroyos, where any water which

might flow therein could reasonably end up in any body of

water, to which or in which there is some public interest,

including underground waters.

By definition, there is a public interest in navigable waters of

the United States, i.e., waters navigable in fact. See e.g.

United States v. Appalachian Electric Power Co., 311 U.S.

377, 404-405, 61 S.Ct. 291, 298 (1940). Thus, if the water

flowing through Arroyo del Puerto reaches such a water, fur-

ther evidence of interstate commerce is unnecessary to find the

arroyo a “navigable water.” See e.g. United States v. Texas

Pipe Line Co., supra, at 611 F.2d 347.

Historically, water from Arroyo del Puerto flowed through

San Mateo Creek, Rio San Jose, and Rio Puerco to the Rio

Grande, a navigable river of the United States. Admitting that

this tributary relationship existed in the past, UNHP contends

that surface flow from San Mateo Creek into Rio San Jose now

occurs too irregularly, if at all, to support regulatory

jurisdiction.

In fact, such surface flow is a relatively rare event. Arroyo

del Puerto and San Mateo Creek lose much of their surface

water to evapotranspiration and infiltration, forces enhanced

by the many obstructions which have been erected in the

historic bed of the creek.* Nevertheless, upstream precipita-

‘Although the presence of changed conditions or artificial obstructions to

flow is irrelevant to a determination of “navigability” under FWPCA, P.F.Z.

Properties v. Train, supra, at 393 F.Supp. 1380; Jn Re Central Illinois Public

Service Co., 2 Gen. Couns. Op. 27 (NPDES Decision 7, April 8, 1975); Jn Re

Phoenix, Arizona, supra, the record does not indicate how much more

frequently the surface connection would exist in the absence of obstruction.

27a

tion events occasionally generate enough flow so that a surface

connection exists. Larry Carver, a long time resident of

Grants, New Mexico who has observed such events,‘ estimates

that they occur on an average of once every five years. (Carver,

Tr. 336.] In cases involving intermittent or ephemeral streams

like San Mateo Creek, however, the fact that a tributary rela-

tionship occurs “only once a year, or even less frequently,” is

irrelevant. Jurisdiction is still present. Jn Re Phoenix, Ari-

zona, supra at 2 Gen. Coun. Op. 290.

Even were there never surface flow between San Mateo

Creek and Rio San Jose, the creek would still be a tributary of

navigable waters of the United States. Water infiltrating the

bed of San Mateo Creek is not “lost” to the Rio San Jose. All

parties to this adjudication agree that at least some of this

infiltrating water migrates through the shallow alluvium un-

derlying San Mateo Creek to Horace Springs, where it re-

emerges and flows into the Rio San Jose. This subsurface

connection independently supports a conclusion that Arroyo

del Puerto is tributary to the Rio Grande and thus a “navigable

water.” See In Re Phoenix, Arizona, 2 Gen. Couns. Op. 405

(NPDES Decision 70, August 9, 1978).

It was unnecessary for EPA to trace the flow from Arroyo del

Puerto as far as Rio San Jose in any event. San Mateo Creek

and its underlying alluvium are themselves waters “in which

there is some public interest” because their pollution could

affect interstate commerce.

Bert Roundy runs a cow-calf operation, maintaining a more

or less constant number of cows for breeding and selling the

calves they produce. During Spring and Summer, Mr. Roundy’s

cattle graze near Bluewater, New Mexico. Around the first of

September, Mr. Roundy moves his cattle to land adjacent to

*‘UNHP speculates that Mr. Carver actually observed the waters of Lobo

Creek, another arroyo which inundates Grants more frequently than San

Mateo Creek. [Ganus, KM-2.] Mr. Carver's testimony, however, shows that he

knows the difference between San Mateo Creek flooding and Lobo Creek

flooding. (Carver, Tr. 349-351.)

28a

San Mateo Creek, between the county line and the United

Nuclear Homestake Partner's tailings pile. About a month

later, he cuts out the calves, 350 to 450 of which are shipped to

Albuquerque or Belen, New Mexico for slaughter or auction in

the interstate market. The cows and fewer than 20 calves

retained for replacement breeding stock remain on the land

adjacent to the creek until the following year. [Roundy, Tr. 380,

392, 395; Nylander, EPA-42; EPA-30. ]

Water from San Mateo Creek plays an integral role in Mr.

Roundy’s cow-calf operation. Mr. Roundy and his father before

him have built earthen “spreader” dams across the creek, thus

checking the occasional flow of water therein and causing it to

inundate and saturate a greater surface area. This primitive

irrigation promotes the growth of grass, thus increasing the

number of cattle that may forage on the land and, correspond-

ingly, the number of cattle available for sale in the interstate

market. [Roundy, Tr. 382.]

Although Mr. Roundy’s cattle occasionally drink from San

Mateo Creek, surface flow therein is too infrequent to be a

reliable drinking water supply for them. Such a supply is

provided by the alluvium underlying the creek, which is tapped

by a number of wells on the ranch. It is most probable that Mr.

Roundy uses these wells to water his cattle. [Roundy, Tr. 380;

Nylander, EPA-42, Tr. 181-182; AL-3B; AL-4A; AL-4B; AL-6;

EPA-37; EPA-38. ]

Pollution of the waters of San Mateo Creek or the underlying

alluvium would affect Mr. Roundy’s operation and the inter-

state cattle industry of which it is part. Without a reasonably

clean water supply for watering and irrigation, such a business

could not survive or contribute cattle to the interstate market.°

5To establish San Mateo Creek's potential effect on interstate commerce, it

is unnecessary that cattle have been transported across state lines after

quaffing alluvial waters or eating irrigated grass. See e.g. Wickard v. Fil-

burn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 90-91 (1942); Maryland v. Wirtz, 392

U.S. 183, 192-193, 88 S.Ct. 2017, 2022 (1968). It is here noted, however, that

Mr. Roundy’s cattle operation formerly used pastures in Colorado as summer

range and shipped stock to feedlots in Kansas and Nebraska. [Roundy, Tr.

372, 380, 395.]

29a

Mr. Roundy’s ranch is, of course, only an example demon-

strating the manner in which pollution of San Mateo Creek and

the alluvium beneath it could affect interstate commerce. Be-

cause of the slowness of underground flow through the al-

luvium, its pollution by UNHP’s discharge will have little, if

any, effect on the present ranching operation. Nevertheless,

such pollution could affect similar commerce in the future.

Accordingly, San Mateo Creek and its tributary, Arroyo del

Puerto, are “navigable waters” which FWPCA mandates EPA

protect.

March 11, 1981

/s/

FRANCES E. PHILLIPS

Acting Regional Administrator

30a

APPENDIX E

BEFORE THE ADMINISTRATOR

U.S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

NPDES Permit No. NM-0020389

In the Matter of:

United Nuclear — Homestake Partners

Grants. New Mexico

Permittee

ORDER DENYING PETITION FOR REVIEW

In a petition for review filed pursuant to 40 CFR

§ 124.91(1980), Homestake Mining Company (Homestake),

successor in interest to United Nuclear - Homestake Partners,

appeals the Regional Administrator's initial decision in which it

was concluded that Homestake’s discharges of mineshaft water

from its uranium mines in the vicinity of Grants, New Mexico,

are subject to the Clean Water Act’s requirements governing

NPDES permits. Homestake is not contesting any of the terms

or conditions of the above referenced NPDES permit; instead,

it argues that the Regional Administrator's decision unlawfully

expands the Agency’s jurisdiction under the Clean Water Act

to include its discharges. The Regional staff did not submit a

responsive petition.

As has been decided on numerous occasions in the past (e.g.,

Boston Edison Company, NPDES Appeal No. 78-7, August

28, 1978; Kerr-McGee Nuclear Corporation (Church Rock Fa-

cility), NPDES Appeal No. 80-3, May 15, 1980; 7T Corpora-

tion (Ascension Parish, Louisiana), NPDES Appeal No. 83-2,

July 21, 1983), a petition for review is not normally accepted

unless the initial decision is clearly erroneous or involves an

3la

exercise of discretion or policy which is important and which

should be reviewed as a discretionary matter. The regulations

do not not confer an automatic right to have the initial decision

reviewed on appeal. The burden of demonstrating that the

permit should be reviewed is therefore on the person petition-

ing for review. In the instant proceeding, the following consid-

erations lead me to conclude that the initial decision does not

warrant review.

The threshold issue in this proceeding is jurisdictional, 7.e.,

whether the ephemeral stream (arroyo) into which Home-

stakes’ mineshaft water is discharged! is part of the “waters of

the United States,” thus making the discharges subject to the

NPDES permit requirements of the Clean Water Act, 33

U.S.C. § 1251, et seg.? In general, Homestake’s objections to

the initial decision center on the fact that the jurisdictional

requisites were deemed to have been fully satisfied notwith-

standing the fact that there is no regular or periodic continuity

of flow between the point of discharge and the point where

navigable-in-fact waters are reached; and that, in portions of

the channel, the water normally only flows underground (by

migration through the alluvium underlying the course of the

surface channel), and may take centuries before reemerging as

part of the surface flow. These findings do not, however, stand

alone. The Regional Administrator also found that surface flow

‘The discharges are to an arroyo (Arroyo del Puerto), which intersects

another arroyo (San Mateo Creek), which, in turn, after branching out into a

braided configuration, crosses a ranch where the channel is obstructed by

spreader dams; the flow then continues to a tailings pile erected in the bed of

the arroyo and eventually reaches Rio San Jose; the latter, in turn, flows into

Rio Puerco, which then flows into the Rio Grande. Homestake’s discharges

also contain the pollutants radium 226, uranium, selenium and molybdenum.

2Under § 301(a) of the Act, 33 U.S.C. § 1311(a), it is unlawful, inter alia,

for any person to discharge any pollutant without an NPDES permit issued

pursuant to § 402 of the Act, 33 U.S.C. § 1342. The term “discharge of a

pollutant” is defined in § 502(12) as “any addition of any pollutant to naviga-

ble waters from any point source,” 33 U.S.C. § 1362(12). The term “navigable

waters” is defined in § 502(7) as “waters of the United States,” 33 U.S.C

§ 1362(7).

32a

does occasionally occur, albeit on an average of not more than

once every five years, thereby providing a surface connection

independent of the underground flow. Also, the Regional Ad-

ministrator found that water in a connecting arroyo, including

its underground component, could affect interstate commerce

by its effects on pasturage and water supplies for a down-

stream cattle ranch. Taking these findings and conclusions

together, it is clear that the Regional Administrator’s initial

decision cannot be termed “clearly erroneous” for purposes of

deciding whether or not to accept review. Under the applicable

court decisions, the definition of “navigable waters” in the

statute is to be given the broadest possible interpretation

consistent with constitutional principles. United States v.

Earth Sciences, Inc., 599 F.2d 368, 375 (10th Cir. 1979) (“It

seems clear Congress intended to regulate discharges made

into every creek, stream, river or body of water that in any way

affect interstate commerce.”); Deltona Corp. v. United States,

657 F.2d 1184, 1186 (Ct.Cl. 1981) (“It is now well settled that

Congress, by adopting this 1972 definition [of “navigable wa-

ters”], ‘asserted federal jurisdiction over the nation’s waters to

the maximum extent permissible under the Commerce Clause

of the Constitution,’ [citations omitted].”). In United States v.

Phelps Dodge Corporation, 391 F. Supp. 1181, 1187 (D.Ariz.

1975), a case involving criminal charges brought against defen-

dant for discharging pollutants without an NPDES permit, the

district court construed the scope of the Agency’s jurisdiction

to specifically embrace discharges of pollutants into normally

dry arroyos, even if the water in the arroyo eventually ended up

in underground waters:

For the purposes of this Act to be effectively carried into

realistic achievement, the scope of its control must extend

to all pollutants which are discharged into any waterway,

including normally dry arroyos, where any water which

might flow therein could reasonably end up in any body of

water, to which or in which there is some public interest,

including underground waters.

33a

The intention of Congress was to eliminate or to reduce

as much as possible all water pollution throughout the

United States both surface and underground. To achieve

this purpose Congress provided the Administrator broad

powers, including emergency powers set out in Title 33,

United States Code, Section 1364.

See also Leslie Salt Co. v. Froehlke, 578 F.2d 742, 745 (9th Cir.

1978) (quoting Phelps Dodge, supra); Avoyelles Sportsmen’s

League, Inc. v. Alexander, 511 F. Supp. 278, 287 (also quoting

Phelps Dodge). Accordingly, the petition for review is denied.

So ordered.

/s/

Ronald L. McCallum

Judicial Officer (A-101)

Dated: August 5, 1983

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APPENDIX F

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

Region VI

1201 Elm Street

Dallas, Texas 75270

February 24, 1984

W. J. Shelley

Kerr-McGee Nuclear Corporation

Kerr-McGee Center

Oklahoma City, Oklahoma 73125

Re: Evidentiary Hearing Request

NPDES Permit No. NM0028207

Dear Mr. Shelley

This letter will acknowledge your evidentiary hearing request

dated September 13, 1983 which was received September 19,

1983.

I have determined that your request does not set forth material

issues of fact relevant to the question of whether a permit

should be issued, denied or modified as required by 40 CFR

124.74(b)(1). To wit, issue No. 6.A. has been previously adjudi-

cated and found against the permittee, issue No. 6.B. is a

matter of state law and not a subject for an evidentiary hearing.

Therefore, your request for an evidentiary hearing is denied.

Issues that can be properly considered at an evidentiary hear-

ing are those that raise material issues of fact. The issues you

have raised appear to be issues of law, in that you question the

validity of duly promulgated regulations of the Administrator.

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This decision may be appealed to the Administrator under 40

CFR 124.91 within 30 days of the date of this letter.

Sincerely,

/s/

Dick Whittington, P.E.

Regional Administrator (6A)

ee: Ms. Judy Grady

Regional Hearing Clerk

Louis W. Rose

Ted Vorhees

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APPENDIX G

The Clean Water Act, 33 U.S.C. §§ 1251 et seg., provides in

relevant part:

33 U.S.C. § 1251(a):

(a) The objective of this chapter is to restore and main-

tain 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 —

(1) it is the national goal that the discharge of pollu-

tants into the navigable waters be eliminated by 1985;

33 U.S.C. § 1342(a)(1):

Except as provided in sections 1328 and 1344 of this

title, the Administrator may, after opportunity for public

hearings, issue a permit for the discharge of any pollu-

tant, or combination of pollutants, notwithstanding sec-

tion 1311(a) of this title, upon condition that such dis-

charge will meet either all applicable requirements under

sections 1311, 1312, 1316, 13817, 1318, and 1343 of this

title, or prior to the taking of necessary implementing

actions relating to all such requirements, such conditions

as the Administrator determines are necessary to carry

out the provisions of this chapter.

33 U.S.C. § 1362(7):

The term “navigable waters” means the waters of the

United States, including the territorial seas.

33 U.S.C. 3 1862(12):

(12) The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any addition of

any pollutant to navigable waters from any point source,

(B) any addition of any pollutant to the waters of the

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contiguous zone or the ocean from any point source other

than a vessel or other floating craft.

The U.S. Environmental Protection Agency has promul-

gated a regulation that defines the term “waters of the United

States” as follows (40 C.F.R. § 122.2):

Waters of the United States or waters of the U.S. means:

(a) All waters which are currently used, were used in

the past, or may be susceptible to use in interstate or

foreign commerce, including all waters which are subject

to the ebb and flow of the tide;

(b) All interstate waters, including interstate

“wetlands”;

(c) All other waters such as intrastate lakes, rivers,

streams (including intermittent streams), mudflats, and

flats, “wetlands,” sloughs, prairie potholes, wet mead-

ows, playa lakes, or natural ponds the use, degradation,

or destruction of which would affect or could affect inter-

state or foreign commerce including any such waters:

(1) Which are or could be used by interstate or foreign

travelers for recreational or other purposes;

(2) From which fish or shellfish are or could be taken

and sold in interstate or foreign commerce; or

(3) Which are used or could be used for industrial

purposes by industries in interstate commerce;

(d) All impoundments of waters otherwise defined as

waters of the United States under this definition;

(e) Tributaries of waters identified in paragraphs (a)

through (d) of this definition;

(f) The territorial sea; and

(g) “Wetlands” adjacent to waters (other than waters

that are themselves wetlands) identified in paragraphs (a)

through (f) of this definition.