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Amelia Whiting, Esq. <br /> March 18 , 1994 <br /> Page 2 <br /> to states to "address under §208 . Unlike the dam situation where <br /> the statute is silent as to whether they are to be regulated under <br /> §402, the Clean Water Act specifically addresses mine-related <br /> sources of pollution in §208 (b) (2) (G) . This section requires 208 <br /> plans to include : <br /> a process to (i) identify, if appropriate, <br /> mine-related sources of pollution including <br /> new, current, and abandoned surface and <br /> underground mine runoff, and (ii) set forth <br /> procedures and methods (including land use <br /> requirements) to control to the extent <br /> feasible such sources; <br /> Thus, both the Clean Water Act and EPA' s past implementation of the <br /> Act lead to the conclusion that non-point sources associated with <br /> mines are to be dealt with through §208 and not §402 . <br /> As you know, the issue of the interrelationship between ground <br /> water and navigable waters is one that is currently before the loth <br /> Circuit in Colorado Refining Company v. Sierra Club (Case No . 94- <br /> 1062) . Issues in this case include the distinction made in the <br /> Clean Water Act between navigable waters and ground water. More <br /> specifically the appellants argue that the Clean Water Act does not <br /> include authority to regulate discharges to ground water. Further, <br /> they argue that the discharges that entered soil and ground water <br /> and in turn into a navigable water were not from a "point source . " <br /> Rather, they argue that the alleged pollutant releases entered <br /> navigable waters through a diffuse source rather than a discrete <br /> conveyance . As I said at our meeting last week, we have done a <br /> search of the cases and have not found a single case which holds <br /> that a seep is a point source. Thus, I don' t think the requisite <br /> "Point source" element is present in this instance . <br /> EPA has on occasion taken the position that a discharge to the <br /> ground or ground water that moves rapidly into surface water <br /> through a "direct hydrological" connection between the point of <br /> discharge and the surface water is subject to NPDES regulation. <br /> Because of the questionable legal authority for this position EPA <br /> has recommended that the Clean Water Act be amended to: <br /> Confirm and clarify t'--at a point source <br /> discharge to ground or to ground water that <br /> has a direct hydrological connection with <br /> surface waters is subject to regulation as a <br /> NPDES point source discharge if there is 1) a <br /> reasonably foreseeable direct hydrologic <br /> connection to surface waters in the proximity <br /> �o�.naaooarua:nw <br />