The Clean Water Act prohibits the discharge of pollutants to waters of the United States from any point source without a permit, and the CWA established the National Pollutant Discharge Elimination System (NPDES) to regulate such discharges. Originally the CWA did not regulate stormwater runoff, however, in 1987 Congress amended the CWA to establish a phased approach for regulating stormwater runoff under the NPDES system.

As detailed by the 9th Circuit in Decker, the EPA’s Silvicultural Rule (40 CFR 122.27(b)(1)), which was originally promulgated in 1973, has a long history and was the subject of prior lawsuits shortly after it was promulgated (and again after it was revised). The Rule regulates “any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States.” However, it exempts “non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.”

The 9th Circuit found that the CWA was intended to be comprehensive in controlling pollution and the Court took issue with the EPA’s attempt to exempt an entire category of point sources on the basis of the origin of the water (natural ran versus man made). Essentially the Court determined that this differentiation was not justifiable and could not be given the deference that is normally afforded to governmental agencies. Thus, the 9th Circuit held that the Silvicultural Rule did not exempt stormwater runoff from logging roads that is “collected and channeled into a system of ditches, culverts and conduits before being discharged” to rivers and streams.

Further, the Court held that Congress did not approve of the Silvicultural Rule by enacting the 1987 CWA amendments. The 9th Circuit pointed out that Congress’1987 amendments addressed five categories of industrial discharges in Phase I and one of those categories included logging operations. Thus, in the 9th Circuit’s view, even though the EPA’s Phase I industrial stormwater regulations exempted those activities covered by the Silvicultural Rule, the Court ruled that a NPDES permit was required under the EPA’s industrial stormwater regulations for logging road runoff because logging operations were encompassed within one of the CWA’s “industrial activities.”

The Supreme Court agreed to review the 9th Circuit’s decision on June 25, 2012, however, a hearing date has not been announced. In the meantime, the Court will have to sort through the numerous amici briefs that have already been filed on behalf of the Petitioner and those that will undoubtedly be filed in support of the 9th Circuit decision and the Northwest Environmental Defense Center.

The post Regulating Runoff From Logging Roads appeared first on Dawda PLC.

The SMCRA, which was enacted in response to concerns with strip mining, sets minimum federal standards for regulating coal mining, and was enacted to ensure that land could be reclaimed after surface mining. Coal mine operators are required to comply with strict performance standards, permitting conditions, inspection requirements, and enforcement actions. The Department of the Interior administers the SMCRA through the Office of Surface Mining Reclamation and Enforcement, and may delegate permitting authority under the program to states with approval of the Secretary of the Interior.

In addition to SMCRA permits, mining operators also must obtain CWA permits to begin coal mining projects. The U.S. Army Corps of Engineers issues permits under §404 of the CWA for discharge of dredged and fill material into navigable waters of the U.S. at disposal sites. Once the EPA approves a State permitting program, the State may issue §402 permits, which cover discharge of pollutants that do not fall under §404. Section §404 permits contain effluent limitations restricting the amounts of specified pollutants that may be discharged. States must also adopt water quality standards under §303 that the EPA reviews for approval.

The controversy began in 2009 when the EPA issued guidance on the use of conductivity testing to determine the levels of dissolved solids in stream water. The guidance was to be used by regional offices for issuing surface mining permits.

The District Court found that the guidance was being employed in the field more like a rule than a recommendation, and held that EPA failed to follow the formal notice and comment procedures for promulgating a new rule. Although this holding was a win for the National Mining Association, it will remain to be seen whether this ruling will stand as the Justice Department recently filed a notice of appeal. Several environmental groups also filed a notice of appeal in the same matter.

(Thank you to DMMS law clerk, Kylie Angileri, who assisted with the preparation of this post.)

The post Justice Department Appeals Ruling on Epa’s Final Mine Waste Guidance appeared first on Dawda PLC.