A federal court in the District of Columbia has ruled that the U.S. Environmental Protection Agency (EPA) exceeded its authority under the Clean Water Act (CWA) in connection with permits for surface mines in Kentucky and West Virginia. Nat’l Mining Ass’n v. Jackson, Nos. 10-1220, 11-0295, -0446, -0447 (D.D.C. 7/31/12).

Plaintiffs challenged EPA guidance relating to permits for surface coal mining in Appalachia, claiming that the agency made “sweeping pronouncements regarding the need for water quality-based limits in [CWA] Section 402 and 404 permits.” According to plaintiffs, at least in Kentucky, the guidance is being implemented as binding and had been interpreted to change the timing of the determination of a discharge’s reasonable potential to cause violation of an applicable water-quality standard.  

The guidance expressly applies to EPA’s consultation on Surface Mining Control and Reclamation Act (SMCRA) permits under the National Environmental Policy Act (NEPA) and to EPA’s review of proposed state National Pollutant Discharge Elimination System (NPDES) permits and Section 404 permits issued by the U.S. Army Corps of Engineer. The case consolidated multiple claims from Virginia and Kentucky in which plaintiffs asserted that EPA lacked jurisdiction to issue such guidance and that the guidance, although couched as non-binding, constituted a rule imposing specific requirements both on states issuing NPDES permits and NPDES permittees, and was not properly promulgated.  

The court found that the guidance, as EPA implemented it, amounted to a legislative regulation and exceeded EPA’s jurisdiction. Under SMCRA, the court held, EPA has only consultation authority on mining permits. Under the CWA, for delegated states such as West Virginia and Kentucky, the relevant decisions are entrusted to the states issuing the permits. EPA reviewers had required that permits be revised to be consistent with the guidance. The court concluded that “EPA has overstepped its statutory authority under the CWA and the SMCRA, and infringed on the authority afforded state regulators by those statutes.”