This section contains the nature of the case and procedural background.

Ps are contesting D permits (National Pollution Discharge Elimination System Permits) to two uranium milling or mining facilities. Ps contend that Arroyo del Puerto and San Mateo Creek are not 'waters of the United States,' and therefore D has no jurisdiction under the Clean Water Act to require permits authorizing discharges into these waters. This appeal is from two written determinations of D to deny review. The Arroyo del Puerto and the San Mateo Creek flow for short distances from the discharge points. Although neither the Arroyo del Puerto nor the San Mateo Creek is navigable. Surface flow occasionally occurs, at times of heavy rainfall, providing a surface connection with navigable waters independent of the underground flow. The waters of the Arroyo del Puerto and the San Mateo Creek soak into the earth's surface, become part of the underground aquifers, and after a lengthy period, perhaps centuries, the underground water moves toward eventual discharge at Horace Springs or the Rio San Jose.

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