FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRIENDS OF PINTO CREEK; GRAND 

CANYON CHAPTER OF THE SIERRA

CLUB, MARICOPA AUDUBON

SOCIETY AND CITIZENS FOR THE

PRESERVATION OF POWERS

GULCH AND PINTO CREEK,

Petitioners,

CARLOTA COPPER COMPANY,

No. 05-70785 Intervenor, 

OPINION

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

ENVIRONMENTAL APPEALS BOARD;

STEPHEN L. JOHNSON, Acting

Administrator, United States

Environmental Protection Agency,

Respondents. 

On Petition for Review of an Order of the

Environmental Protection Agency

Argued and Submitted

November 13, 2006—San Francisco, California

Filed October 4, 2007

Before: Procter Hug, Jr., A. Wallace Tashima, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Hug

13505
COUNSEL

Roger Flynn, Western Mining Action Project, Lyons, Colorado, for the petitioners. 

13508 FRIENDS OF PINTO CREEK v. EPA
D. Judith Keith, United States Department of Justice, Environmental Defense Section, Washington, DC; John S. Most,

United States Department of Justice, Natural Resources Section, Washington, DC, for the respondents. 

Amy R. Porter, Lewis and Roca LLP, Phoenix, Arizona, for

the intervenor. 

OPINION

HUG, Circuit Judge:

In this case, we determine whether the Environmental Protection Agency (“EPA”) properly issued a National Pollution

Discharge Elimination System (“NPDES”) permit under the

Clean Water Act to Carlota Copper Company (“Carlota”).

The permit allows mining-related discharges of copper into

Arizona’s Pinto Creek, a waterbody already in excess of water

quality standards for copper. Based upon provisions of the

Clean Water Act, the implementing regulations, and their

applicability to the factual scenario of this case, we vacate the

permit and remand.

I. FACTUAL BACKGROUND 

Pinto Creek is a desert river located near Miami, Arizona,

approximately 60 miles east of Phoenix. It has been listed by

the American Rivers Organization as one of the country’s

most endangered rivers due to threats from proposed mining

operations. Pinto Creek and its riparian environs are home to

a variety of fish, birds, and other wildlife, some of which are

specially protected. Due to excessive copper contamination

from historical mining activities in the region, Pinto Creek is

included on Arizona’s list of impaired waters under § 303(d)

of the Clean Water Act, 33 U.S.C. § 1313(d), as a water quality limited stream due to non-attainment of water quality standards for dissolved copper. 

FRIENDS OF PINTO CREEK v. EPA 13509
Carlota proposed to construct and operate an open-pit copper mine and processing facility approximately six miles west

of Miami, Arizona, covering over 3000 acres while extracting

about 100 million tons of ore. Part of the operation plan

includes constructing diversion channels for Pinto Creek to

route the stream around the mine, as well as groundwater cutoff walls to block the flow of groundwater into the mine. 

In compliance with the National Environmental Policy Act

(“NEPA”), 42 U.S.C. §§ 4321 et seq., the U.S. Forest Service

prepared an Environmental Impact Statement (“EIS”), after

determining the project would potentially have a significant

impact on the environment, and later finalized the document

as its Final EIS (“Forest Service FEIS”). The Army Corps of

Engineers also prepared an Environmental Assessment

(“Corps EA”) covering the physical construction of proposed

diversion channels redirecting water from Pinto Creek and the

Powers Gulch stream around the mine and into Pinto Creek.

Because the proposed action would involve the discharge of

pollutants into Pinto Creek, Carlota applied to the EPA for an

NPDES permit under § 402 of the Clean Water Act, 33

U.S.C. § 1342, in 1996. The EPA ultimately issued the permit, and the Environmental Appeals Board (“Appeals

Board”), the internal appellate board of the EPA, denied

review. 

II. ISSUES 

A. Whether the issuance of the permit to discharge

a pollutant, dissolved copper, into Pinto Creek,

which already exceeded the amount of dissolved copper allowed under the Section 303(d)

Water Quality Standard, is in violation of the

Clean Water Act and the applicable regulations.

B. Whether the EPA’s failure to include and regulate all discharges from the Carlota Copper

13510 FRIENDS OF PINTO CREEK v. EPA
Mine in the NPDES permit violates the Clean

Water Act and the applicable regulations. 

C. Whether the EPA complied with the requirements of the National Environmental Policy Act

(“NEPA”). 

III. PROCEDURAL BACKGROUND

The EPA published for public comment a draft NPDES

permit for Carlota in 1998. To fulfill its information-gathering

requirements under NEPA, 42 U.S.C. §§ 4321-4370f, the

EPA adopted the Forest Service FEIS and the Corps EA. In

response to comments received on its draft NPDES permit,

the EPA amended the draft permit by adding two new

conditions—(1) requiring additional groundwater discharges

to augment the stream flow into Pinto Creek, and (2) an offset

provision whereby Carlota would be required to remediate

sources of copper loading from an upstream inactive mine site

called the Gibson Mine. 

On June 30, 2000, the Arizona Department of Environmental Quality (“Arizona DEQ”) certified the final permit with

the two new conditions as meeting state water quality standards under § 401 of the Clean Water Act, 33 U.S.C. § 1341,

and on July 24, 2000, the EPA issued an NPDES permit to

Carlota, as well as a Record of Decision formally adopting the

Forest Service FEIS and the Corps EA for the current permit.

On August 24, 2000, the Petitioners filed their first Petition

for Review of the NPDES permit and the NEPA documents

with the Appeals Board. The Petitioners argued that: (1)

because Pinto Creek is an impaired water under the Clean

Water Act, the EPA should establish a Total Maximum Daily

Load (“TMDL”) for copper discharges into Pinto Creek

before issuing Carlota’s permit, (2) the EPA did not provide

public notice of and a public comment period for the two new

permit conditions, (3) Carlota needed an additional NPDES

FRIENDS OF PINTO CREEK v. EPA 13511
permit for discharges from the Gibson Mine site, and (4) the

Forest Service FEIS and Corps EA documents did not consider environmental impacts of the two new permit conditions. 

The EPA did not respond and, instead, withdrew portions

of the challenged NPDES permit stating that the permit was

not severable from the contested conditions and that the permit should be stayed pending final agency action. The EPA

then prepared a supplemental environmental assessment

(“EPA’s supplemental EA”) analyzing only the two new conditions. In response to the Petitioners’ contention of the necessity to establish a TMDL, the EPA completed a TMDL for

dissolved copper in Pinto Creek. The EPA then provided a

public comment period, but only for the two new permit conditions and the EPA’s supplemental EA. The Arizona Department of Environmental Quality issued a second certification

under § 401 of the Clean Water Act in February 2002. In

accordance with its new analysis, the EPA issued a Finding

of No Significant Impact on February 27, 2002, determining

it would not have to prepare a new EIS, and issued the permit.

On April 1, 2002, the Petitioners filed a second Petition for

Review with the Appeals Board challenging the EPA’s decision to issue the Carlota permit. The principal challenges were

that: (1) the permit should have covered the diversion channels that discharged into Pinto Creek, (2) the EPA must regulate all project discharges, (3) the permitted discharges

violated Arizona anti-degradation requirements and water

quality standards, and (4) the EPA violated NEPA in several

ways. 

The Appeals Board entered its order denying review on

September 30, 2004. The EPA issued the final NPDES permit

to Carlota, and the Petitioners filed for review in this court.

13512 FRIENDS OF PINTO CREEK v. EPA
IV. ANALYSIS

A. Objective of the Clean Water Act. 

It is important to consider the objectives and purpose of the

1972 revisions of the Clean Water Act, which are presently

applicable to the considerations involved here. 33 U.S.C.

§ 1251 (1987) provides: 

The objective of this chapter is to restore and maintain 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 pollutants into the navigable waters be eliminated by 1985. . . . (3) it is the

national policy that the discharge of toxic pollutants

in toxic amounts be prohibited. 

Under the 1972 revisions of the Clean Water Act, there is

direct federal regulation of the discharge of pollutants from

point sources. Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th

Cir. 2002). “[P]oint sources of pollution are those [where the

pollutant flows] from a discrete conveyance, such as a pipe or

tunnel. Nonpoint sources of pollution are non-discrete

sources” and are the responsibility of the states, with certain

federal oversight. Id. at 1125-27. An example of a nondiscrete source is runoff from a farmland or timber harvesting.

Our Pronsolino opinion provides a detailed description of

the operation of the Clean Water Act. We here summarize the

provisions pertinent to this case. 

Under § 303 of the Clean Water Act, 33 U.S.C. § 1313, the

states are required to set water quality standards for all waters

within their boundaries, regardless of the sources of the pollution entering the waters. Pursuant to § 303(d)(1), 33 U.S.C.

§ 1313(d)(1), each state is required to identify those waters

FRIENDS OF PINTO CREEK v. EPA 13513
that do not meet the water quality standard which is frequently called the “§ 303(d)(1) list.” For impaired waters

identified in the § 303(d)(1) list, the states must establish a

TMDL for pollutants identified by the EPA. A TMDL specifies the maximum amount of pollutant that can be discharged

or loaded into the waters from all combined sources, so as to

comply with the water quality standards. 

Each state is required to submit its § 303(d)(1) list and its

TMDL to the EPA for its approval or disapproval. If the EPA

disapproves either of those documents, the EPA is responsible

for preparing that document. The state then incorporates its

§ 303(d)(1) list and its TMDL or the EPA’s approved document into its continuing planning process as required by

§ 303(e), 33 U.S.C. §1313(e). 

In this case, the state had prepared the § 303(d)(1) list, but

it had not prepared a TMDL. Therefore, in response to the

Petitioners’ objection, the EPA prepared the TMDL utilized

in its awarding of the permit. 

B. Carlota’s Discharge into an Impaired Waterway. 

[1] The Petitioners contend that as a “new discharger” Carlota’s discharge of dissolved copper into a waterway that is

already impaired by an excess of the copper pollutant violates

the intent and purpose of the Clean Water Act. Under the

NPDES permitting program, 40 C.F.R. § 122.4(i) addresses

the situation where a new source seeks to permit a discharge

of pollutants into a stream already exceeding its water quality

standards for that pollutant. Section 122.4 states in relevant

part:

No permit may be issued: 

. . . . 

(i) To a new source or a new discharger if the discharge from its construction or operation will cause

13514 FRIENDS OF PINTO CREEK v. EPA
or contribute to the violation of water quality standards. The owner or operator of a new source or new

discharger proposing to discharge into a water segment which does not meet applicable water quality

standards or is not expected to meet those standards

. . . and for which the State or interstate agency has

performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the

close of the public comment period, that: 

(1) There are sufficient remaining pollutant load

allocations to allow for the discharge; and 

(2) The existing dischargers into that segment are

subject to compliance schedules designed to bring

the segment into compliance with applicable water

quality standards.

40 C.F.R. § 122.4 (2000). 

[2] The plain language of the first sentence of the regulation is very clear that no permit may be issued to a new discharger if the discharge will contribute to the violation of

water quality standards. This corresponds to the stated objectives of the Clean Water Act “to restore and maintain the

chemical, physical, and biological integrity of the nation’s

waters.” 33 U.S.C. § 1251(a) (1987). And that “it is the

national policy that the discharge of toxic pollutants in toxic

amounts be prohibited.” 33 U.S.C. § 1251(a)(3) (1987). 

The EPA contends that the partial remediation of the discharge from the Gibson Mine will offset the pollution. However, there is nothing in the Clean Water Act or the regulation

that provides an exception for an offset when the waters

remain impaired and the new source is discharging pollution

into that impaired water.1

1

It is questionable whether there really is an offset. See discussion in the

next section. 

FRIENDS OF PINTO CREEK v. EPA 13515
The regulation does provide for an exception where a

TMDL has been performed and the owner or operator demonstrates that before the close of the comment period two conditions are met, which will assure that the impaired waters will

be brought into compliance with the applicable water quality

standards. The plain language of this exception to the prohibited discharge by a new source provides that the exception

does not apply unless the new source can demonstrate that,

under the TMDL, the plan is designed to bring the waters into

compliance with applicable water quality standards. 

[3] The EPA argues that under the requirements of clause

(1), there are sufficient remaining load allocations to allow for

the discharge because the TMDL provides a method by which

the allocations could be established to allow for the discharge.

There is no contention, however, that these load allocations

represent the amount of pollution that is currently discharged

from the point sources and nonpoint sources, and there is no

indication of any plan that will effectuate these load allocations so as to bring Pinto Creek within the water quality standards. The TMDL merely provides for the manner in which

Pinto Creek could meet the water quality standards if all of

the load allocations in the TMDL were met, not that there are

sufficient remaining pollutant load allocations under existing

circumstances. 

With regard to the requirements of clause (2), the EPA

argues that the requirement of “compliance schedules” pertains only to point sources for which there is a permit. This

does not correspond to the plain language of clause (2), which

provides “the existing discharges into that segment [of Pinto

Creek] are subject to compliance schedules designed to bring

the segment into compliance with applicable water quality

standards.” 40 C.F.R. § 122.4(i)(2) (2000). 

[4] We examine that language utilizing the definitions provided in the regulation. The term “discharge” is defined to

mean “the discharge of a pollutant.” 40 C.F.R. § 122.2 (2000).

13516 FRIENDS OF PINTO CREEK v. EPA
The term “discharge of a pollutant,” is defined as any addition

of any “pollutant” or combination of pollutants to “waters of

the United States” from “any point source.” Id. at § 122.2(a)

(emphasis added). Thus, under the plain language of the regulation, compliance schedules are not confined only to “permitted” point source discharges, but are applicable to “any” point

source. 

The EPA contends that this would amount to a complete

ban of the discharge of pollution to impaired waters. This is

based on its misreading of the plain language of the regulation

to state that the remediation has to be completed before Carlota’s discharge. The plain language of clause (2) of the regulation, instead, provides that existing discharges into that

segment (of the waters) are “subject to compliance schedules

designed to bring the segment into compliance with applicable water quality standards.” 40 C.F.R. § 122.4(i)(2) (2000)

(emphasis added). This is not a complete ban but a requirement of schedules to meet the objective of the Clean Water

Act. 

[5] Here the existing discharges from point sources are not

subject to compliance schedules designed to bring Pinto

Creek into compliance with water quality standards. Thus,

Carlota has not demonstrated that clause (2) of 40 C.F.R.

§ 122.4(i) has been met. This is the regulation upon which

Carlota and the EPA rely for issuance of the permit. 

Initially, Carlota and the EPA contended that the first and

second sentences of § 222.4(i) could be construed to apply

independently, thus not requiring compliance with clauses (1)

and (2) when an offset would result in a substantial net reduction of pollution to the impaired waters. The Petitioners, on

the other hand, maintained that the two sentences must be

read together, not independently. However, the EPA subsequently asked the Appeals Board to assume, for purposes of

this decision, that clauses (1) and (2) do apply. See In re Carlota Copper Co., 11 E.A.D. 692, 766 (EAB 2004). Thus, we

FRIENDS OF PINTO CREEK v. EPA 13517
are concerned in this case with whether the EPA required Carlota to fulfill all of the requirements of § 122.4(i), including

clauses (1) and (2), in order to issue a permit to it as a new

discharger. 

The Respondents and Carlota rely on Arkansas v. Oklahoma, 503 U.S. 91 (1992) in support of their contentions.

That case involved the issuance of a permit for a city in

Arkansas to discharge effluent into a stream in Arkansas that

entered a river that eventually flowed into Oklahoma. Oklahoma challenged the permit before the EPA, alleging that the

discharge violated Oklahoma Water Quality Standards. In that

case, the EPA found that the discharge would not lead to a

“detectable change in water quality,” which the Supreme

Court held was supported by substantial evidence. Arkansas,

503 U.S. at 112. In the opinion, the Court stated that “the parties have pointed to nothing that mandates a complete ban on

discharges into a waterway that is in violation of those standards. The statute does, however, contain provisions designed

to remedy existing water quality violations and to allocate the

burden of reducing undesirable discharges between existing

sources and new sources. See, e.g. § 1313(d).” Id. at 108. Section 1313(d) of the Clean Water Act, referred to by the Court,

is the one that provides for the establishment of water quality

standards and TMDLs. 

The Supreme Court in Arkansas v. Oklahoma also referred

to § 1288(b)(2), which provides for the development of areawide programs to eliminate existing pollution in the context

of area-wide waste treatment management. Id. That section

provides details required of any plan to eliminate the pollution, including schedules, time lines, identification of agencies, and identification of measures necessary to carry out the

plan. 

The Appeals Board stated that prior Agency pronouncements “confirm our position that, rather than completely banning new source discharges, § 122.4(i) provides new sources

13518 FRIENDS OF PINTO CREEK v. EPA
with the opportunity to obtain a permit if the requirements

specified in that section are met.” In re Carlota Copper Co.,

11 E.A.D. 692, 765 (EAB 2004). The prior Agency position

quoted states: 

A new source or new discharger may, however,

obtain a permit for discharge into a water segment

which does not meet applicable water quality standards by submitting information demonstrating that

there is sufficient loading capacity remaining in

waste load allocations (WLAs) for the stream segment to accommodate the new discharge and that

existing dischargers to that segment are subject to

compliance schedules designed to bring the segment

into compliance with the applicable water quality

standards. 

Id. (emphasis added). The language quoted by the Appeals

Board from the prior agency action requires compliance

schedules designed to bring the water segment into compliance with the applicable water quality standards. 

[6] In Carlota’s case, there are no plans or compliance

schedules to bring the Pinto Creek segment “into compliance

with applicable water quality standards,” as required by

§ 122.4(i)(2), which Carlota and the EPA both acknowledge

is the applicable section with which Carlota must comply. The

error of both the EPA and Carlota is that the objective of that

section is not simply to show a lessening of pollution, but to

show how the water quality standard will be met if Carlota is

allowed to discharge pollutants into the impaired waters.2

2The only step the EPA or Carlota has taken to meet the requirements

of § 122.4(i)(2) is the partial remediation of the Gibson Mine discharge.

The following statement illustrates the Appeals Board’s erroneous view of

the objective of § 122.4(i)(2): 

The goal of the proposal is not, as Petitioners and other commenters seemed to believe, the restoration of the entirety of Pinto

Creek to water quality standards. While desirable, this is not the

intent of the proposed action. 

In re Carlota Copper Co., 11 E.A.D. 692, 784 (EAB 2004). 

FRIENDS OF PINTO CREEK v. EPA 13519
[7] The EPA has the responsibility to regulate discharges

from point sources and the states have the responsibility to

limit pollution coming into the waters from non-point sources.

If point sources, other than the permitted point source, are

necessary to be scheduled in order to achieve the water quality standard, then the EPA must locate any such point sources

and establish compliance schedules to meet the water quality

standard before issuing a permit. If there are not adequate

point sources to do so, then a permit cannot be issued unless

the state or Carlota agrees to establish a schedule to limit pollution from a nonpoint source or sources sufficient to achieve

water quality standards. 

The EPA contends that it cannot be judicially compelled to

act against point sources that are illegally discharging into

Pinto Creek. The EPA notes that while it has the authority to

act against violators, its decision to do so in ordering its priorities is a matter that is typically committed to its absolute discretion, citing Sierra Club v. Whitman, 268 F.3d 898, 903 (9th

Cir. 2001) and Heckler v. Chaney, 470 U.S. 821, 831-32

(1985). 

In Carlota’s case, there is nothing in § 122.4(i) that compels

the EPA to act against point sources that are violating the

Clean Water Act by their discharges into Pinto Creek or

requiring judicial review of the EPA’s ordering of priorities

in any failure to act. The requirement of § 122.4(i)(2) is simply a condition that must be met before a permit can be issued

to a new discharger into impaired waters. There is no compulsion on the EPA to act against point source violators, as in

Sierra Club or Heckler. The EPA remains free to establish its

priorities; it just cannot issue a permit to a new discharger

until it has complied with § 122.4(i)(2). 

In this case, the Petitioners do not argue for an absolute ban

on discharges into a waterway that is in violation of the water

quality standards. Rather, the Petitioners point to the

§ 122.4(i) exception by which a new discharger can comply

13520 FRIENDS OF PINTO CREEK v. EPA
with the Clean Water Act requirements. Those requirements

simply were not met. Thus, no conflict exists with the

Supreme Court’s opinion in Arkansas v. Oklahoma. 

C. Pollution From the Diversion Channels.

Carlota proposed to construct two diversion channels that

would divert surface and groundwater around the mine facilities. The Pinto Creek diversion channel would extend approximately 5250 feet and then into Pinto Creek. The Powers

Gulch stream diversion channel would extend approximately

7900 feet into the Powers Gulch stream, which eventually

connects to Pinto Creek. Both channels will eventually add

pollutants, including copper, into Pinto Creek especially from

the groundwater that Carlota will be directing into the channels for discharge into Pinto Creek. 

In order to block groundwater from entering the main Carlota Mine pit, Carlota will construct a cutoff wall down to

bedrock that will divert the groundwater to the surface and

into the Pinto Creek diversion channel. The Forest Service

FEIS stated: “The cutoff wall would be an impermeable barrier extending from the surface down through the alluvium

and into the bedrock. The cutoff wall would be designed to

prevent water from moving toward the pit and would encourage the alluvial flow to surface into the diversion channel to

be routed around the pit.” Fed. Envtl. Impact Statement for

Carlota Copper Project, Vol. 1, Ch. 2, p. 16 (1997). The Forest Service FEIS also noted that the alluvial groundwater that

will enter the diversion channel contains dozens of pollutants,

including copper, that will be added to Pinto Creek. According to the Forest Service FEIS, the amount of dissolved copper in this groundwater would be significant. In addition to

the groundwater directed into Pinto Creek via the Pinto Creek

diversion channel, a similar cutoff wall is proposed to direct

groundwater into the Powers Gulch stream diversion channel

and ultimately into Pinto Creek. Like the groundwater added

to the Pinto Creek via the Pinto Creek diversion channel, the

FRIENDS OF PINTO CREEK v. EPA 13521
groundwater added to the Powers Gulch stream contains elevated levels of copper and other pollutants. The EPA did not

consider the copper contributions from the use of the proposed diversion channels and groundwater cutoffs. The

Appeals Board refused to consider these additional sources of

copper pollution because it was not raised in the first comment period for the permit. 

In the Petitioners’ first Petition for Review of the NPDES

permit and the NEPA documents before the Appeals Board,

the Petitioners contended, among other things, that the EPA

had not allowed a comment period on the two new conditions

added to the permit and that the EPA should establish a

TMDL for copper discharges into Pinto Creek before issuing

Carlota’s permit. The EPA did not respond and, instead, withdrew portions of the challenged NPDES permit stating that

the permit was not severable from the contested conditions

and that the permit should be stayed until pending final

agency action. 

[9] After establishing a TMDL for copper in Pinto Creek,

Carlota then pursued a renewal of the permit based upon 40

C.F.R. § 122.4(i). Carlota has conceded that for the purpose

of this decision § 122.4(i), including clauses (1) and (2), is

applicable. Carlota was thus proceeding on the basis that a

TMDL had been issued and that it was required to comply

with clauses (1) and (2). Section 122.4(i) requires that a new

discharger into impaired waters for which a pollutant’s load

allocation for the pollutant to be discharged “must demonstrate, before the close of the comment period,” the compliance with clauses (1) and (2). 40 C.F.R. § 122.4(i) (2000)

(emphasis added). The comment period referred to could not

have been the initial comment period before a TMDL was

sought or established. The comment period had to relate to the

new basis for Carlota’s permit under § 122.4(i). 

[10] All of the claims that the Petitioners now rely upon

were raised during the comment period after the TMDL was

13522 FRIENDS OF PINTO CREEK v. EPA
performed. They could not have been raised in the first comment period. These claims were made known to the EPA not

only in the second comment period but also at the time of the

preparation of the TMDL by a letter that raised the point, a

copy of which was furnished directly to the EPA. Thus, the

claim with regard to the copper discharge from the diversion

channels and the cutoff walls was timely raised and should

not have been deemed forfeited, but it should have been considered by the Appeals Board. This would be important in

determining whether the requirement for compliance schedules set out in § 122.4(i)(2) had been met and also it would

be important in determining the extent of the pollutants contributed by Carlota that would be offset by the Gibson Mine

remediation. 

D. The State of Arizona’s Requirements.

In addition to violating 40 C.F.R. § 122.4(i), the Petitioners

contend that the permit also violates the provisions of 40

C.F.R. § 122.4(d), which provides that no permit may be

issued “[w]hen the imposition of conditions cannot ensure

compliance with the applicable water quality requirements of

all affected States.” 40 C.F.R. § 122.4(d) (2000). This must be

considered in connection with § 122.4(a), which states that no

permit may be issued “when the conditions of the permit do

not provide for compliance with the applicable requirements

of the Clean Water Act or regulations promulgated under the

Clean Water Act.” Id. at § 122.4(a). Thus, the requirements of

§ 122.4(d) are in addition to complying with all of the requirements of the Clean Water Act and the regulations promulgated under the Clean Water Act. 

[11] Since we here hold that the permit does not comply

with § 122.4(i), the additional requirement of § 122.4(d) need

not be considered at this time. It would be appropriate to consider the requirements of § 122.4(d) if a permit is properly

issued under § 122.4(i). 

FRIENDS OF PINTO CREEK v. EPA 13523
E. Compliance With the Requirements of NEPA.

NEPA requires agencies to examine potential environmental effects of any proposed action, and to inform the public of

its studies and resulting concerns. If any agency determines

that its action may have a significant impact on the environment, the agency is required to prepare an EIS describing the

impacts of the action and possible alternatives. 42 U.S.C.

§ 4332(2)(C) (1975). To determine if the action will require

an EIS, the agency may first prepare an environmental assessment (“EA”). 40 C.F.R. § 1508.9 (1998). If the EA indicates

that there will not be a significant impact on the environment,

the agency may issue a Finding of No Significant Impact, in

which case an EIS is not required. 40 C.F.R. § 1508.13

(1998). 

[12] In the first appellate review before the Appeals Board,

the Petitioners challenged the EPA’s failure to allow comments on the two new permit conditions and also the failure

to conduct a TMDL prior to issuing the permit. The supplemental EA issued by the EPA addressed only the environmental effect of the two new conditions, not the effect of a permit

issued to a new discharger under § 122.4(i), including clauses

(1) and (2). There is nothing wrong with incorporating and

relying upon the Forest Service FEIS because it had discussed

the effect on waters by the proposed Carlota Mine. However,

the EA produced by the EPA should have discussed the

revised permit issued under § 122.4(i), including clauses (1)

and (2). 

[13] The Petitioners argued that the EPA failed to take a

“hard look” at its failure to consider the discharges from the

two diversion channels, including the walls to be established

to prevent groundwater from reaching the mine facilities,

which would contribute alluvial water, including copper pollution, to Pinto Creek. The Appeals Board refused to consider

this argument because it contended that it had not been raised

during the first comment period. As we have previously

13524 FRIENDS OF PINTO CREEK v. EPA
explained, it was not possible to comment upon the request

for a permit based upon the TMDL and the requirements of

§ 122.4(i) until after the TMDL had been issued. Thus, for the

reasons we expressed in the prior section, it was error for the

Appeals Board not to consider additional discharges from the

diversion channels. 

[14] The Petitioners also raised other questions concerning

the compliance with NEPA, such as reasonable alternatives to

the proposed action. Because we have held that the permit

was improperly issued under the provisions of § 122.4(i),

including clauses (1) and (2), these NEPA issues need not be

considered at this time. 

V. CONCLUSION

Because the issuance of the NPDES Permit to Carlota Copper Mine was based on errors of law under the Clean Water

Act, 40 C.F.R. § 122.4(i), and the NEPA, we vacate and

remand the permit to the EPA for further proceedings consistent with this opinion. 

VACATED and REMANDED. 

FRIENDS OF PINTO CREEK v. EPA 13525