The Fourth Circuit Court of Appeals has upheld an injunction requiring the West Virginia Department of Environmental Protection (WVDEP) to obtain NPDES permits under the Clean Water Act (CWA) for reclamation efforts at abandoned coal mining sites. W.Va. Highlands Conservancy, Inc. v. Huffman, No. 09-1474 (4th Cir. 11/8/10).

The dispute stems from WVDEP’s reclamation efforts at several bond forfeiture sites in north-central West Virginia. In 2007, plaintiffs requested water quality data from those sites and determined from the data that 18 bond forfeiture mining sites were actively discharging acid mine drainage into state streams. Plaintiffs then sued WVDEP in federal court under the CWA’s citizen-suit provision. 33 U.S.C. § 1365. The complaint sought declaratory and injunctive relief, including an order requiring WVDEP to obtain NPDES permits at the sites within 30 days. After the suit was filed, WVDEP stipulated that pH, iron, manganese, and aluminum levels in the water at the sites frequently exceed both EPA and state water quality standards. The agency also stipulated that those chemicals are pollutants under the CWA and that they are being discharged into navigable waters. The district court granted plaintiff’s motion for summary judgment in January 2009, and the agency appealed, arguing that NPDES permits are not necessary for state agencies cleaning up acid mine drainage generated by others.

The three-judge appellate panel disagreed with WVDEP, ruling that the state agency was not exempt from CWA permit requirements. According to the court, “[t]he text of the CWA, as well as the corresponding regulations issued by the [EPA], confirm that the permit requirements apply to anyone who discharges pollutants into waters of the United States.”