In determining if the pollutant comes from a point source, the Court must find that there is a “discernible, confined and discrete conveyance.” See 33 U.S.C. § 1362(14). The “definition of a point source is to be broadly interpreted” and “embrac[es] the broadest possible definition of any identifiable conveyance from which pollutants might enter waters of the United States.”

These conveyance pipes are “point sources” under the CWA. See 33 U.S.C. § 1362(14); accord 40 C.F.R. § 122.2; see also U.S. v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979) (concept of “point source” intended to embrace “the broadest possible definition of any identifiable conveyance from which pollutants might enter the waters of the United States.”) (cited by Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984)); S.F. Baykeeper v. Tidewater Sand & Gravel Co., No. C 96-01531 CW, 1997 U.S. Dist. LEXIS 22602, at *22-23 (N.D. Cal. Sept. 9, 1997) (quoting Wash. Wilderness Coal. v. Hecla Mining Co., 870 F. Supp. 983, 988 (E.D. Wash 1994)); Comm. to Save the Mokelumne, 13 F.3d at 308.

Under the Clean Water Act “the term ‘point source’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” CWA § 502(14), 33 U.S.C. § 1362(14). As discussed above, Disney’s storm water system meets this definition.

The CWA generally requires these effluent limitations to be set equal to the pollutant reduction attainable with various technologies or to the level needed to ensure attainment of water quality standards. See, e.g., CWA §§ 301-307, 33 U.S.C. §§ 1311-1317; CWA § 502(11), 33 U.S.C. § 1362(11); see Am. Mining Congress v. Envtl. Protection Agency, 965 F.2d 759, 761-62 (9th Cir. 1992) (“AMC”).

For instance, “agricultural stormwater discharges” are specifically exempt from NPDES regulation. 33 U.S.C. § 1362(14); Brown, 640 F.3d at 1070. Obviously, every farm that irrigates is not required to obtain an NPDES permit.

Second, 5 CWA section 502(19) defines "pollution" broadly as meaning "the man-made or rrian-induced alteration of the chemical, physical9 biological, and radiological integrity of water." 33 U.S.C. § 1362(19}. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 12 of 30 1 2 3 4 5 6 7 9 10 I'' 11 12 b3 14 IS 16 17 fl8 19 20 21 22 23 24 25 26 27 2~ the State Water Board uses its authority to condition water rights permits to address any water quality impairments resulting from water ~ivers~ons effected by water projects —the changes in salinity, temperature and flows created by the water diversion facilitges found on almost all major river systems in the State.

10 Based upon their best professional judgment in interpreting their narrative criteria as applied to trash, both the District and Maryland identified the Anacostia River as water-quality-limited segments that are impaired by trash.11 That designation led them to develop the Trash TMDL.12 B. Development of the Anacostia River Trash TMDL Trash is one of the pollutants regulated by the Clean Water Act. 33 U.S.C. § 1362(6) (defining pollutant to mean, among other things, “solid waste,” “garbage,” “discarded equipment,” and “industrial, municipal and agricultural waste”). But among pollutants, trash has unique characteristics.

Pollution resulting in violations of water quality standards can come from point sources—“discernible, confined and discrete conveyance[s]” such as storm sewers that empty into rivers—and from nonpoint sources—any other unconfined route pollution takes to water, such as litter dropped off a bridge. 33 U.S.C. § 1362(14); Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 214 (D.D.C. 2011). The Clean Water Act prohibits point sources from discharging pollution into navigable waters without a permit.

The Act further defines “navigable waters” as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). Thus, discharges to “waters of the United States” are subject to the CWA.

See, United States v. Robison, 521 F. 3d 1319 (11th Cir. 2008)(on denial of rehearing en banc). In light of this ongoing, jurisdictional and jurisprudential mayhem, the government does not discharge its Rule 8(a)(1) obligation to establish subject matter jurisdiction by merely declaring that “Horse Creek and its tributaries are ‘navigable waters of the United States within the meaning of Section 311(b)(3) of the CWA, 33 U.S.C. § 1321(b)(3); and “navigable waters’ 1:08-cv-01707-MBS Date Filed 06/24/08 Entry Number 7 Page 15 of 24 16 within the meaning of Section 502(7) of the CWA, 33 U.S.C. § 1362(7).” (¶ 25).