Further, the EPA may withdraw its approval of a state NPDES program if it determinesthe state is not administering the program in compliance with the federal _ | requirement. (33 U.S.C. § 1342(c)(3); 40 C.F.R. §§ 123.63, 123.64.) Ifa state repeatedly issues permits that are vetoed by the EPA, the EPA mayfindthis constitutes grounds for withdrawal ofthe state’s program approval.

Under the Clean Water Act,.all MS4 operators must have a permitthat, at a minimum, meets the maximum-extent-practicable standard. (33 U.S.C. § 1342(p); 40 C.F.R. § 122.26(a)(3)(i), (d)(iv).) They cannot discharge from their MS4sto waters of the United States without one.

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 32 of 33 Page ID #:10030 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 Given Disney’s limousine fleet of more than 75 vehicles are fueled, detailed, washed and serviced at an auxiliary site within its 51 acre complex, there is no material fact in dispute that Disney is operating transportation services. The fact these services are auxiliary to Disney’s other commercial operations does not shield Disney from liability under the stormwater regulations, CWA § 402(p), 33 U.S.C. § 1342(p). Furthermore, the moratorium on requiring permits for all stormwater discharges expired in 1994.

If EPA does not withdraw its objection and the State does not cure the problem to EPA’s satisfaction within 30 days of the hearing or 90 days of EPA’s objection, EPA may take over the process. 33 U.S.C. § 1342(d)(4); 40 C.F.R. § 123.44(h).

Moreover, if a state permitting authority fails to incorporate relevant information or set appropriate permit limits, EPA has full authority to object to the permit as unlawful. 33 U.S.C. § 1342(d)(2). As part of deciding whether to object to a permit, EPA judges whether the permit complies with section 122.

For example, with regard to industrial activities, Section 1342(p)(4) required EPA to promulgate regulations mandating that persons engaged in industrial activities that discharge storm water apply for a NPDES permit by not later than February 4, 1990. 33 U.S.C. § 1342(p)(4)(A). EPA or the State had to issue a permit for such industrial storm water discharges by not later than February 4, 1991.

None of the Ninth Circuit decisions suggest that CWA section 402(p) altered NRDC v. Costle’s holding. In AMC, the Ninth Circuit held that storm water discharges from inactive mines were still subject to CWA section 301(a) and required to obtain NPDES permits even if EPA had not classified them as industrial discharges: The NPDES permit program of the CWA, see CWA §§ 301(a), 402(a), 33 U.S.C. §§ 1311(a), 1342(a), regulates point source discharges of pollutants from inactive mines regardless of whether EPA classifies such discharges as “associated with industrial activity” under CWA § 402(p)(2)(B), 33 U.S.C. § 1342(p)(2)(B). AMC, 965 F.2d at 767.

Case 2:11-cv-02980-KJM-CKD Document 51 Filed 11/01/12 Page 22 of 27 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 PLAINTIFFS’ MOTION FOR JUDGMENT ON THE PLEADINGS Case No. 2:11-cv-02980-KJM-CKD- 16 - 3. The CWA’s Legislative History Demonstrates That Polluted Groundwater Is Not Exempt from NPDES Permitting If, despite the unambiguous language of 33 U.S.C. § 1342(l)(1) that specifies that only “discharges composed entirely of return flows from irrigated agriculture” are exempted from the NPDES permit program, and despite the general common law preference for avoiding the use of legislative history, this Court resorts to legislative history to interpret the statutory exemption, it will find, as it did in its Order, that this history supports Conservation Groups’ interpretation. Congress intended to exempt surface irrigation return flows, not polluted drainwater from tile drains.

The court reasoned that EPA’s regulations extending coverage to municipalities through submission of an NOI were invalid because they did not require a permitting authority to ensure that the measures “will in fact 84 399 F.3d at 498. 85 33 U.S.C. § 1342(p)(3)(B)(iii). 86 344 F.3d 832.

The CWA requires industrial and construction sites to hold permits authorizing their discharge of stormwater. 33 U.S.C. § 1342(p)(2)(B) and (3)(A); 40 C_F.R. § 122.26(b)(14) and (c). In California, the State Board has issued GIASP and GCASP permits to industrial and construction facilities pursuant to Water Code §13377.