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Page 6 504 F.3d 1007, 65 ERC 1289, 07 Cal. Daily Op. Serv. 11,947, 2007 Daily Journal D.A.R. 15,420 (Cite as: 504 F3d 1007) referred to § 1288(b)(2), which provides for the de- velopment of area-wide programs to eliminate exist- ing pollution in the context of area-wide waste treat- ment management. Id. That section provides details required of any plan to eliminate the pollution, in- cluding schedules, time lines, identification of agen- cies, and identification of measures necessary to carry out the plan. The Appeals Board stated that prior Agency pro- nouncements "confirm our position that, rather than completely banning new source discharges, 122.46) provides new sources 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 stan- dards by submitting information demonstrating that there is sufficient loading capacity remaining in waste load allocations (WLAs) for the stream seg- ment 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. statement illustrates the Appeals Board's er- roneous view of the objective of § 122.4(i)(2): The goal of the proposal is not, as Peti- tioners 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). 171 The EPA has the responsibility to regulate dis- charges 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 sche- duled 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. 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. 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. €`° FN2. The 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 The EPA contends that it cannot be judicially com- pelled to act against point sources that are illegally discharging into Pinto Creek. The EPA notes that while it *1015 has the authority to act against viola- tors, its decision to do so in ordering its priorities is a matter that is typically committed to its absolute dis- cretion, citing Sierra Club v. nitman, 268 F.3d 898, 903 (9th Cir.2001) and Heckler v. Chanev. 470 U.S. 821, 831-32, 105 S.Ct. 1649.84 L.Ed.2d 714 (1985). In Carlota's case, there is nothing in 122.46) 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 J1 22.4(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 compul- sion 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 s © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.