Summary of a Recent
Judicial Development in
Clean Water Act

State's Discharge of Pollutants Without NPDES Permit
Violates the Clean Water Act

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In West Virginia Highlands Conservancy, Inc. v. Huffman, 588 F. Supp. 2d 678 (N.D. W. Va. 2009), the United States District Court for the Northern District of West Virginia held that the West Virginia Department of Environmental Protection was acting in violation of the Clean Water Act (CWA) in discharging pollutants into navigable waters without National Pollution Discharge Elimination System (NPDES) permits.

Background

Environmental organizations brought this action against the West Virginia Department of Environmental Protection under the CWA, seeking an injunction to prevent the Department from discharging pollutants from surface mines into navigable waterways without an NPDES permit. Id. at 679-80. The Department had reclaimed certain former surface coal mining operations pursuant to the federal Surface Mining Control Reclamation Act of 1977 (SMCRA), 30 U.S.C. § 1201 et seq., which they were using to treat and release acid mine drainage into streams. Id. at 681. Evidence showed that the levels of acid mine drainage exceeded Environmental Protection Agency (EPA) standards, and despite being the entity charged with issuing NPDES permits in the state of West Virginia, the Department had failed to issue permits to itself for the sites. Id. at 683. The Department admitted that the levels of pollutants being discharged exceeded the effluent standards required by an NPDES permit, and conceded that the pollutants were being discharged into "navigable waters" under the CWA and that the outfalls from the sites had the physical characteristics of "point sources" as defined by the CWA. Id. It also admitted that the former operators of the mining sites had been required to obtain NPDES permits, but claimed that it was not required to issue permits to itself because the forfeited mining sites should not be considered "point sources." Id.

Arguments

Plaintiffs argued that the Department was a "person" discharging pollutants from point sources into the navigable waters of the United States without an NPDES permit, in violation of the CWA; that there was no exception to the CWA permitting requirements for SMCRA activities; and that in case of a conflict, the federal CWA would preempt state law. Id. at 684.

The Department argued that the EPA had never considered the outfalls at the sites as "point sources," and that to require it to obtain permits and meet the more stringent requirements now would be impractical and would work a serious financial hardship on the state. Id. It also argued that the doctrine of sovereign immunity barred the plaintiffs' claim. Id.

Analysis and Holdings

The court rejected the Department's sovereign immunity defense, explaining that this action was brought to obtain prospective injunctive relief for a violation of federal rather than state law, and thus did not "run afoul of the Eleventh Amendment or infringe a state's sovereign immunity." Id. at 687. The court also found that the EPA "clearly has not exempted [bond forfeiture] sites from consideration as point sources for NPDES permitting purposes," and moreover, even if it had intended such, it did not have the authority to do so under the CWA. Id. at 688. Lastly, the court held that the Department was required to obtain an NPDES permit under the plain language of the CWA, and that there were no exceptions for state entities charged with reclamation duties under SMCRA. Id. at 690-92. Therefore, the court granted the plaintiffs' motion for summary judgment and ordered the Department to apply for and obtain NPDES permits for the sites. Id. at 692-93.

The case was decided on January 14, 2009.