ELR Citation: ELR 20642
No(s). 2:87-0834 (S.D. W. Va. Dec 28, 1989)

In dismissing a case for lack of subject matter jurisdiction, the court holds that the United States Environmental Protection Agency (EPA) has authority under the Federal Water Pollution Control Act (FWPCA) to adopt a policy prohibiting instream treatment ponds and fills and to object to draft national pollutant discharge elimination system (NPDES) permits submitted to it by the West Virginia Department of Natural Resources on the basis that the draft permits authorize such ponds and fills. To analyze the jurisdictional question, the court first looks at whether EPA exceeded its authority under the FWPCA when it promulgated its policy. The court first holds that EPA's policy does not conflict with the Surface Mining Control and Reclamation Act to the extent that that law authorizes instream fills and ponds. The court also holds that EPA's regulation of surface mining instream fills and treatment ponds does not conflict with the Secretary ofthe Army's authority to issue §404 permits. The court then holds that impoundments of waters of the United States remain "waters of the United States" and thus are within EPA's FWPCA authority. The court further holds that EPA can base its objection to instream ponds on its own interpretation of West Virginia Water Quality Standards because it retains dominion over state NPDES programs. Finally, the court holds that EPA's 1987 and 1988 policies on instream treatment ponds and fills did not constitute a rule so that compliance with the Administrative Procedure Act's notice and comment requirements was unnecessary.

Counsel for Plaintiffs
James R. Snyder
Jackson & Kelly
1600 Laidley Tower, P.O. Box 553, Charleston WV 25322
(304) 340-1000

Counsel for Defendant
Stephen M. Horn, Ass't U.S. Attorney
4106 Federal Bldg., 500 Quarrier St., P.O. Box 3234, Charleston WV 25332
(304) 345-2200

Bradley S. Bridgewater
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-6240