Regulating the Regulators: WVDEP Forced to Issue Permits to Itself

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On November 8, 2010, the U.S. Court of Appeals for the Fourth Circuit issued its decision in West Virginia Highlands Conservancy, et al. v. Huffman (Appeal No. 09-1474). It's an opinion that should be of great interest to government agencies and others who find themselves in a position of seeking to remediate water quality problems left by third parties. The appeals court decision in Huffman affirmed a district court ruling requiring that the West Virginia Department of Environmental Protection (WVDEP) issue National Pollutant Discharge Elimination System (NPDES) permits to itself, to address water discharges emanating from abandoned coal mining sites.

Though the case dealt with so-called bond forfeiture sites (areas that were permitted after passage of the federal Surface Mining Control and Reclamation Act of 1977), the legal principles that lie behind the decision are equally applicable to work done at mining sites that were abandoned before 1977 ("abandoned mine lands" or "AML" sites), for which no site-specific bond monies are available. In essence, the Fourth Circuit held that the federal Clean Water Act establishes a structure whereby states that are delegated NPDES permitting authority are also required, by virtue of that delegation, to regulate themselves.

Please see full article below for more information.

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Published In: Administrative Agency Updates, Civil Procedure Updates, Energy & Utilities Updates, Environmental Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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