ELR Citation: ELR 20201
No(s). 2:07-0410 (S.D. W. Va. Aug 24, 2009)

A district court held that the West Virginia Department of Environmental Protection violated the CWA's NPDES requirements when it allowed acid mine drainage to be discharged from "bond forfeiture" or abandoned mining sites without a permit. The groups successfully demonstrated that the agency is discharging pollutants without a permit in violation of the CWA. As the Secretary admittedly exercises control over the abandoned sites and is now responsible for the discharges occurring there, the causation requirement is met. In addition, bond forfeiture sites that discharge acid mine drainage may be deemed point sources, and the outfalls at issue here have the physical characteristics of a point source. The Secretary also argued that he is immune from suit under the Eleventh Amendment because the state has an approved NPDES permitting program and is therefore the primary regulator with respect to the issuance of NPDES permits in West Virginia. But not all of the CWA provisions drop out or are suspended upon approval of a state permit program under the CWA. The claim that the Secretary is discharging pollutants without a permit retains its federal character notwithstanding state regulation of the permit program. As such, the Ex Parte Young exception to the Eleventh Amendment is applicable.