Case 4:16-cv-00052-BMM Document 68 Filed 12/21/16 Page 43 of 53 -36- As is proper, the Montana numeric nutrient criteria of Circular 12-A are designed to protect the “most sensitive use,” which in most cases is the most sensitive aquatic life. AR 835, 33 U.S.C. §§ 1251(a)(2) and 1313; 40 C.F.R. § 131.11(a).

Such dramatic environmental harm alone justifies judicial caution, rather than a grant of extraordinary relief that would vacate compliance policy documents and shut down a basic government review to ensure satisfaction of essential legal requirements. The purpose of the Clean Water Act, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), must guide this Court’s review at every stage. In view of this purpose, the threat of serious environmental harm greatly outweighs NMA’s speculative fear.

Consistent with the “vigorous federalism underlying the Clean Water Act,” United States v. Homestake Mining Co., 595 F.2d 421, 429 (8th Cir. 1979), the Act sets forth a highly cooperative system for the exercise of the States’ primary authority for setting water quality standards and, ultimately, TMDLs. See also 33 U.S.C. § 1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.”).

Equivalent to about 46 football fields. 26 33 U.S.C. § 1251(a).27 -20-Pltfs’ Oppos. to Defs’ Motion for SJ 2:09-cv-04045-DMG-PLA Case 2:09-cv-04045-DMG-PLA Document 324 Filed 08/31/12 Page 27 of 33 Page ID #:10025 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The California General Industrial Stormwater Permit (“General Permit”) is intended to cover all facilities engaged in industrial activities whether the facility is primary or is auxiliary to the facility operator’s function.

The Act unequivocally and broadly declares, for example, that “[p]ublic participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States.” 33 U.S.C. § 1251(e). Consistent with this demand, the Act further provides that there be an “opportunity for public hearing” before any NPDES permit issues, see 33 U.S.C. §§ 1342(a), 1342(b)(3); that a “copy of each permit application and each permit issued under this section [1342] shall be available to the public,” see 33 U.S.C. § 1342(j); and that “any citizen” may bring a civil suit for violations of the Act, see 33 U.S.C. § 1365(a).

1. Federal Framework In 1972, Congress passed the Clean Water Act. (33 U.S.C. § 1251 et seg.) The Clean Water Act’s national goal was to eliminate dischargeofpollutants into navigable waters ofthe United States by 1985. (PUD No. | ofJefferson County v. Washington Dept. ofEcology (1994) 511 U.S. 700, 704 [114 S.Ct. 1900, 128 L.Ed.2d 716]; City ofBurbank v. State Water Resources Control Board(2005) 35 Cal.4th 613, 619-620 (City ofBurbank).)

The Corps deprived the public of a hearing on the SPE Mine To ensure informed and transparent environmental decisionmaking, the Clean Water Act and NEPA require the opportunity for significant public engagement. 33 U.S.C. §§ 1251(e), 1344(a); 42 U.S.C. § 4332(2)(C). Corps regulations establish that a request for a public hearing “shall” be granted “unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interested served by a hearing,” makes such a determination in writing, and communicates his reasons with the requesting party.

BACKGROUND I. Total Maximum Daily Loads Under the Clean Water Act In 1972, Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Clean Water Act establishes the goal of eliminating “the discharge of pollutants into the navigable waters,” and, in the interim, of attaining “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.”

The CWA establishes a comprehensive program to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA prohibits the discharge of pollutants, including dredged or fill material, to navigable waters unless authorized by a CWA permit.

Congress Did Not Intend to Provide Citizens with CWA Enforcement Powers Greater Than Those Granted to EPA or States Congress reserved to the states the primary authority to “prevent, reduce, and eliminate pollution.” 33 U.S.C. §1251(b). In contrast, “Congress . . . provided citizens a limited role in the enforcement of the Act.”