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<br />001067 <br /> <br />as point sources, causing them, therefore~ to be subject to direct regulation. The early <br /> <br />regulations of the United States Environmental Protection Agency stated that "[w]hen <br /> <br />discharges from irrigation ditches result from the controlled application of water by any person, <br /> <br />that pollution is considered a point source.029 The EPA. seeing itself as burdened with an <br /> <br />impossibly large administrative task, attempted to limit point source regulation to irrigators <br /> <br />whose return flow was from more than 3000 contiguous acres or 3000 non-contiguous acres <br /> <br />which used the same drainage system. 30 This exemption of "small" irrigators seemed reasonable <br /> <br />to EPA since the land serviced by nearly 1100 irrigation entities (mostly irrigation districts), <br /> <br />each of which provided water to 3000 or more acres, comprised eighty percent of all land under <br /> <br /> <br />. irrigation.31 Shortly afterwards, however, a federal district court invalidated the regulations <br /> <br /> <br />which had sought to exempt whole categories of point sources.32 EPA's response was then to <br /> <br />limit the statutory definition of "surface water" to mean "water that flows exclusively across the <br /> <br />surface of land from the point of application to the point of discharge.".n The effect was that! <br /> <br />water that percolated into the ground and appears later, bypass water, and tile drainage were <br /> <br />no longer included in the EPA definition of irrigation return flow.34 <br /> <br />29 41 Fed. Reg. 7,964 (1976). <br /> <br />30 Hertz, 22 S.D.L. Rev. at 569. <br /> <br />31 Id., citing 38 Fed. Reg. 18,001 (1973). <br /> <br />32 Natural Resources Defense Council, Inc. v. Castle, 568 F.2d 1369 (D.C. Cir. 1977), <br />aff'l! NRDC v. Train, 396 F. Supp. 1393 (D.D.C. 1975). <br /> <br />33 41 Fed. Reg. 28,496 (1976). <br /> <br />34 Hertz, 22 S.D.L. Rev. at 571. <br /> <br />32 <br />