concurring:

I concur, but write separately because my position may be somewhat more narrowly based than the position of the majority.

As I understand it, the pollutants in question used to be carried into the Mokelumne River by Mine Run Creek and Hinkley Run Creek. The water from those creeks, and other water, ran across the tailings from the mines and became polluted. The creeks then carried that water to the river. The project has diverted those creeks so that they will stay clean and has captured polluted runoff so that it can be released in a more measured way. In other words, it seems that unregulated quantities of pollutants were flowing into the river and causing fish kills and the like long before EBMUD and the Board did anything at all. Those entities sought to eliminate the disasters caused by that unregulated flow and that is why the project was built. The result has been a significant improvement in the river’s environment and a boon to aquatic life.

The majority appears to agree with appellee’s position that the project is a point source in the sense that the Environmental Protection Agency could not determine that a NPDES permit was not required. I am not so sure. It seems to me that, given the history of this project, the EPA could properly have determined that this really is much more like the dams it dealt with in National Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir.1988), and National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C.Cir. 1982), than it is like the typical point source that truly does add pollution to navigable waters. See 33 U.S.C. § 1362 (12). If it had, we would have shown that determination great deference. 1 See Consumers Power, 862 F.2d at 584-85 . It did not. In fact, the information before the district court and before us indicates that the EPA considers the project to be a point source, which does require a permit containing numerous onerous conditions.

Appellants earnestly argue that the EPA’s approach, and that of the appellee’s, will not serve the long-term purpose of bettering the aquatic environment. They indicate that it takes no genius or epopt to see what the message will be. Do nothing! Let someone else take on the responsibility. Let the water degrade, let the fish die, but protect your pocketbook from vast and unnecessary expenditures. Do not try to bring some order out of environmental chaos. In short, appellants suggest that no Odysseus or Daedalus crafted the policy which we are now asked to follow. Perhaps they are correct; I suspect they are.

Nevertheless, we are not policymakers. We must simply apply the law. The majority opinion demonstrates that with great clarity.

Therefore, I concur.

. One could even consider whether primary jurisdiction principles should be applied. See United States v. General Dynamics Corp., 828 F.2d 1356, 1362-66 (9th Cir.1987).