West Virginia has filed a lawsuit against EPA seeking to overturn the agency’s April 2010 guidance that clarified existing requirements of the Clean Water Act’s (CWA’s) section 402 and 404 permitting programs as they apply to pollution from surface coal mining operations in streams and wetlands.West Virginia v. EPA, No. N/A (S.D. W. Va. filed 10/6/10). The guidance sets out EPA’s responsibilities and how the agency uses its CWA authorities to ensure that future mining will not cause significant water quality and human health impacts.

The complaint alleges that, in issuing the guidance, EPA acted “unilaterally in reliance on questionable scientific literature, much of which has not withstood proper review from the scientific community.” It asks the court to vacate the guidance as well as a June 2009 “Enhanced Cooperation Process” memorandum jointly issued by EPA and the U.S. Army Corps of Engineers (Corps). On September 17, 2010, the National Mining Association filed a motion in the U.S. District Court for the District of Columbia seeking to stay the guidance. It also asks the court to enjoin implementation of the joint EPA/ Corps memorandum. NMA v. Jackson, No. 10-1220 (D.D.C. filed 9/17/10).