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Ninth Circuit Decision Means Tougher Standards for New Discharge Permits in Impaired Water Bodies

By: Mary Lynn K. Coffee
01/15/08

A recent Ninth Circuit decision is likely to increase the difficulty of obtaining permits for new sources that seek to discharge pollutants into water bodies that are listed as "impaired" under the Federal Clean Water Act (CWA). Approximately 45% of watersheds in the United States are listed as "impaired" under section 303 (d) of the CWA, so the Pinto Creek decision can be expected to have widespread ramifications.

On October 3, 2007, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) issued a CWA decision, Friends of Pinto Creek v. U.S. Envtl Protection Agency, 504 F.3d 1007 (9th Cir. 2007). In the decision, the court held that the Environmental Protection Agency (EPA) rules for National Pollutant Discharge Elimination System (NPDES) permit issuance preclude the granting of any "new" discharge permit in water bodies listed as "impaired" under section 303(d) of the CWA until both: (1) existing "discharges" from "point sources" in the watershed are identified and made subject to waste load allocations and compliance schedules, and (2) the waste load allocations and compliance schedules can demonstrate future attainment of all pertinent water quality standards.

In July 2000, EPA granted the Carlota Copper Company's application for an NPDES permit for discharges from a newly proposed mining operation in Central Arizona. As a condition of the permit, Carlota was required to conduct mitigation in and around a nearby abandoned copper mine in order to "offset" any additional loadings of copper pollution that might result from Carlota's proposed activities. As a result of the mitigation, Pinto Creek would be cleaner after implementation of the new permit than before, but water quality would not improve enough overall to meet pertinent water quality standards for copper (in part due to naturally high copper levels in the soil and streambed). Pinto Creek would accordingly remain listed as an "impaired" water body on Arizona's section 303 (d) list. Friends of Pinto Creek and other non-governmental organizations (Plaintiffs) filed a petition challenging the issuance of the permit at the EPA Environmental Appeals Board (EAB). They argued that issuance of the "new" permit was improper because no new discharges could be undertaken in Pinto Creek until all state water quality standards were met or exceeded. In September of 2004, the EAB dismissed the appeal, and EPA issued a final NPDES permit to Carlota.

Plaintiffs then appealed the EAB's decision to the Ninth Circuit. The Ninth Circuit ruled in Plaintiffs' favor—holding that no "new" permits could issue until all point sources in water quality impaired segments of Pinto Creek were made subject to waste load allocations and compliance schedules that, over time, would demonstrate compliance with applicable water quality standards. Pinto Creek, 504 F.3d at 1014-15. If sufficient loading reductions to meet water quality standards could not be obtained through NPDES permit limitations and compliance schedules, then additional reductions would have to be obtained from non-point sources of pollution (such as agricultural or silvicultural activities). Id. at 1014. Although the Ninth Circuit denied that it was applying a categorical ban on new discharges in section 303(d) listed water bodies, the difficulty (and in some cases, impossibility), of applying water quality based effluent limits and compliance schedules to every existing point source in a watershed (prior to new permit issuance) could result in a de facto ban for some "new" permit applicants.

The Pinto Creek decision, available here will impact proposed NPDES permits for new point source discharges in any watershed that is listed as "impaired" in the Western United States. Any request for a "new" NPDES permit could potentially trigger the need for watershed wide implementation of effluent limits and compliance schedules for all point sources and a search for pollutant loading reductions. Compliance schedules—which would likely be implemented in conjunction with the adoption of a total maximum daily load (TMDL) for the impaired segment—might require significant reductions in pollutant loading over time. Stakeholders in section 303 (d) listed watersheds should consult with their legal counsel and other watershed stakeholders to evaluate the degree that the Pinto Creek decision may generate new regulatory requirements or increase the risk of litigation.

For a more detailed discussion of the Pinto Creek case and its possible reach, see the article, "Impaired Waters and Permitting: Implications of the Pinto Creek Decision," available online by clicking here.

Mary Lynn K. Coffee is a partner in Nossaman's Irvine office. She has extensive experience in compliance with, and permitting and approvals for development projects under local, state and federal resource protection laws, including the federal Clean Water Act (Sections 401, 402 and 404), the California Porter-Cologne Water Quality Act and the state streambed alteration provisions of the California Fish and Game Code. In this role, she has particular expertise in the development of construction and post-construction surface water quality compliance programs for existing and new real estate developments. She can be reached at (949) 833-7800 or mlcoffee@nossaman.com.

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