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Page 4 504 F.3d 1007, 65 ERC 1289, 07 Cal. Daily Op. Serv. 11,947, 2007 Daily Journal D.A.R. 15,420 (Cite as: 504 Fad 1007) waters 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 con- tinuing planning process as required by § 303(e), 33 U.S.C. S 1313(e). In this case, the state had prepared the § 303(d)(1) list, but it had not prepared a TMDL. Therefore, in re- sponse to the Petitioners' objection, the EPA prepared the TMDL utilized in its awarding of the permit. B. Carlota's Discharge into an Impaired Water- way. The Petitioners contend that as a "new discharger" Carlota's discharge of dissolved copper into a wa- terway 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(1) 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: for the pollutant to be discharged, must demon- strate, before the close of the public comment pe- riod, 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). LU 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 bio- logical 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 pollu- tion. 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. FN 1. It is questionable whether there really is an offset. See discussion in the next section. No permit may be issued: (i) To a new source or a new discharger if the dis- charge from its construction or operation will cause or contribute to the *1012 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 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. The EPA argues that under the requirements of clause © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.