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Page 2 <br />504 F.3d 1007, 65 ERC 1289, 07 Cal. Daily Op. Serv. 11,947, 2007 Daily Journal D.A.R. 15,420 <br />(Cite as: 504 F.3d 1007) <br />*1009 Before: PROCTER HUG, JR., A. WALLACE <br />TASHIMA, and RONALD M. GOULD, Circuit <br />Judges. <br />HUG, Circuit Judge: <br />In this case, we determine whether the Environmental <br />Protection Agency ("EPA") properly issued a Na- <br />tional Pollution Discharge Elimination System <br />("NPDES") permit under the Clean Water Act to <br />Carlota Copper Company ("Carlota"). The permit <br />allows mining-related discharges of copper into Ari- <br />zona's Pinto Creek, a waterbody already in excess of <br />water quality standards for copper. Based upon pro- <br />visions of the Clean Water Act, the implementing <br />regulations, and their applicability to the factual sce- <br />nario of this case, we vacate the permit and remand. <br />1. FACTUAL BACKGROUND <br />Pinto Creek is a desert river located near Miami, <br />Arizona, approximately 60 miles east of Phoenix. It <br />has been listed by the American Rivers Organization <br />as one of the country's most endangered rivers due to <br />threats from proposed mining operations. Pinto Creek <br />and its riparian environs are home to a variety of fish, <br />birds, and other wildlife, some of which are specially <br />protected. Due to excessive copper contamination <br />from historical mining activities in the region, Pinto <br />Creek is included on Arizona's list of impaired waters <br />under § 303(d) of the Clean Water Act, 33 U.S.C. & <br />1313(d) as a water quality limited stream due to <br />non-attainment of water quality standards for dis- <br />solved copper. <br />would potentially have a significant impact on the <br />environment, and later finalized the document as its <br />Final EIS ("Forest Service FEIS"). The Army Corps <br />of Engineers also prepared an Environmental As- <br />sessment ("Corps EA") covering the physical con- <br />struction of proposed diversion channels redirecting <br />water from Pinto Creek and the Powers Gulch stream <br />around the mine and into Pinto Creek. Because the <br />proposed action would involve the discharge of pol- <br />lutants into Pinto Creek, Carlota applied to the EPA <br />for an NPDES permit under § 402 of the Clean Water <br />Act, 33 U.S.C. & 1342, in 1996. The EPA ultimately <br />issued the permit, and the Environmental Appeals <br />Board ("Appeals Board"), the internal appellate board <br />of the EPA, denied review. <br />II. ISSUES <br />A. Whether the issuance of the permit to discharge a <br />pollutant, dissolved copper, into Pinto Creek, which <br />already exceeded the amount of dissolved copper <br />allowed under the Section 303(d) Water Quality <br />Standard, is in violation of the Clean Water Act <br />and the applicable regulations. <br />B. Whether the EPA's failure to include and regulate <br />all discharges from the Carlota Copper Mine in the <br />NPDES permit violates the Clean Water Act and <br />the applicable regulations. <br />*1010 C. Whether the EPA complied with the re- <br />quirements of the National Environmental Policy <br />Act ("NEPA"). <br />III. PROCEDURAL BACKGROUND <br />Carlota proposed to construct and operate an <br />open-pit copper mine and processing facility ap- <br />proximately six miles west of Miami, Arizona, cov- <br />ering over 3000 acres while extracting about 100 <br />million tons of ore. Part of the operation plan includes <br />constructing diversion channels for Pinto Creek to <br />route the stream around the mine, as well as ground- <br />water cut-off walls to block the flow of groundwater <br />into the mine. <br />In compliance with the National Environmental Policy <br />Act ("NEPA"), 42 U.S.C. S? 4321 et seq., the U.S. <br />Forest Service prepared an Environmental Impact <br />Statement ("EIS"), after determining the project <br />The EPA published for public comment a draft <br />NPDES permit for Carlota in 1998. To fulfill its <br />information-gathering requirements under NEPA, 42 <br />U.S.C. $ , 4321-4370f, the EPA adopted the Forest <br />Service FEIS and the Corps EA. In response to <br />comments received on its draft NPDES permit, the <br />EPA amended the draft permit by adding two new <br />conditions-(1) requiring additional groundwater dis- <br />charges to augment the stream flow into Pinto Creek, <br />and (2) an offset provision whereby Carlota would be <br />required to remediate sources of copper loading from <br />an upstream inactive mine site called the Gibson <br />Mine. <br />© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.