APPENDIX

23a
pipe, ditch [or] channel * * * ” (§ 502(14) of
the FWPCA) and includes all such conveyances.
However, a proper interpretation
of the FWPCA as explained in the legislative
history and supported by the [district] court
in NRDC v. Train is that not every “ditch,
water bar or culvert” is “means [sic] to be a
point source under the Act [FWCPA].” It is
evident, therefore, that ditches, pipes and
drains that serve only to channel, direct, and
convey non-point runoff from precipitation
are not meant to be subject to the § 402 permit
program.
41 Fed. Reg. 6282 (Feb. 12, 1976). A sentence-bysentence
analysis shows the weakness of EPA’s justification.
In the first sentence, EPA wrote that
“[t]echnically, a point source is defined as a ‘confined
and discrete conveyance, including but not limited to
any pipe, ditch, [or] channel.’” The words quoted by
EPA in this sentence were a direct (though partial)
quotation of the statutory definition of “point source”
contained in § 502(14) of the FWPCA. EPA’s choice of
the word “technically” is somewhat odd and even
misleading; perhaps EPA hoped that the word would
diminish the force of the statutory definition. But
whatever its motive, EPA would have been more accurate
if it had written “textually” instead of “technically.”
In the second sentence, EPA wrote that “a proper
interpretation of the FWCPA as explained in the legislative
history and supported by the court in NRDC
v. Train is that not every ‘ditch, water bar or culvert’
is ‘mean[t] to be a point source under the Act
[FWCPA].’” EPA was putting words into the district