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<br />Ms. Kathy Dolan <br />Ms. Susan Burgmaier <br />January 31, 1994 <br />Page 2 <br />A recent EPA publication3 observed: <br />In practical terms, nonpoint source pollution does not <br />result from a discharge at a specific, single location <br />(such as a single pipe) but generally results from land <br />runoff, precipitation, atmospheric deposition, or <br />percolation. (Emphasis added.) <br />The leading case in the area is Sierra Club v. Abston Constr. <br />Co., 630 F.2d 41 (5th Cir. 1980). This case addressed the issue of <br />whether overflow from sediment basins should be considered "point <br />sources" of pollution as defined in the federal statute. The court <br />ruled that the discharge from the sediment ponds became a "point <br />source" because the operator had "initially collected or channeled <br />the water" in the sediment ponds.° The court further noted that a <br />"point source" also might result if the operator designed the <br />runoff from "spoil piles from discarded overburden" to pass through <br />"ditches, gullies and similar conveyances."3 <br />The court adopted the position of the government, which had <br />argued that <br />surface runoff collected or channeled by the operator <br />constitutes a point source discharge. Simple erosion <br />over the material surface, resulting in the discharge of <br />water and other materials into navigable waters, does not <br />constitute a point source discharge, absent some effort <br />to change the surface, to direct the waterflow or <br />otherwise impede its progress.b (Emphasis added.) <br />It follows that naturally-occurring percolation should not be <br />subject to permitting as a "point source" of water discharge. We <br />find no suggestions in the statute or regulation that a discharge <br />becomes a "point source" simply because it reflects some certain <br />mineral content. <br />We welcome the opportunity to exchange viewpoints in an <br />informal process. Please let us know if there are other points <br />that we should consider in evaluating these issues. <br />ncerely, <br />n W. Paul <br />JWP:gjk <br />3. Nonooint Source Guidance, U.S. EPA 3 (December 1987). <br />4. Id. at 45. <br />5. Zd. at 45. <br />6. Id. at 44. <br />