ELR Citation: ELR 20092
No(s). 90-2034 (4th Cir. May 13, 1991)

In an unpublished decision, the court holds that in-stream treatment ponds for treatment of coal mining wastes are "waters of the United States" subject to regulation by the Environmental Protection Agency (EPA) under the Federal Water Pollution Control Act (FWPCA). After identifying certain problems with West Virginia's national pollutant discharge elimination system (NPDES) permit program, EPA issued a policy concerning in-stream treatment of mining waste water. EPA applied the policy to object to NPDES permits issued by West Virginia that utilized surface coal mine related fills and in-stream treatment ponds. The court first holds that the case is ripe for review because it involves a purely legal issue and there has been final agency action. The court next holds that EPA acted within its authority under the FWPCA in regulating the in-stream treatment ponds. Under a memorandum of agreement between EPA and the Army Corps of Engineers, regulation of the discharge of fill material for the purpose of disposing of waste or spoil from mining operations is subject to EPA's permitting authority under FWPCA §402. Neither the Surface Mining Control and Reclamation Act nor the FWPCA §404 nationwide permit program apply to this activity. Finally, the court holds that in-stream treatment ponds and the waters above them are "waters of the United States" subject to regulation under the FWPCA.

[The district court's decision is published at 20 ELR 20642.]

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

Counsel for Appellee
Blake A. Watson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.