Fourth Circuit Upholds Decision Requiring DEP to Issue NPDES Permits to Itself

The Fourth Circuit has upheld Judge Irene Keeley's decision that the WV Department of Environmental Protection must issue NPDES permits to itself when it assumes responsibility for reclamation at abandoned coal mines. Here is how the 4th Circuit opened its decision: 

("WVDEP") appeals an injunction requiring it to obtain

National Pollutant Discharge Elimination System permits

under the Clean Water Act ("CWA"),

see 33 U.S.C. § 1342

et seq.

The injunction was based on the district court’s conclusion

that the plain language of the CWA and applicable EPA regulations

require such a permit.

The trial court’s ruling was correct. The text of the CWA,

as well as the corresponding regulations issued by the Environmental

Protection Agency, confirm that the permit requirements

apply to anyone who discharges pollutants into the

waters of the United States. Under the CWA, it does not matter

that a mining company may have created the conditions

, for reclamation efforts at abandoned coal mining sites.

that call for reclamation. What matters is that an entity, private

or public, is currently discharging pollutants into the

waters of the United States. In fact, the statute contains no

exceptions for state agencies engaging in reclamation efforts;

to the contrary, it explicitly includes them within its scope.

At bottom, WVDEP’s arguments stem from little more than

policy disagreements with the statutory text. Finding that to

be an insufficient basis for deviating from the law as written,

we affirm the judgment of the district court.

The Court was unpersuaded by  arguments that requiring the DEP to obtain permits from itself was contrary to the intent of the Clean Water Act, or that enforcing against itself was a practical impossibility.

The decision can be found here.  A story on the decision can be  found in the AP report in the Gazettte