On Monday, November 8, 2020 the U.S. Court of Appeals for the Fourth Circuit issued a decision concerning Clean Water Act (CWA) Section 402 (NPDES) permitting at reclamation bond forfeiture sites. These sites are the responsibility of the West Virginia Department of Environmental Protection’s (WV DEP) Special Reclamation Fund (SRF). The SRF is the state’s federally-approved Alternative Bonding System (ABS) under the federal Surface Mining Control and Reclamation Act (SMCRA).
The Appeals Court held that WV DEP has a responsibility under the CWA to obtain NPDES permit coverage for bond forfeiture sites. The decision has serious financial implications as to the solvency of the SRF and its ability to qualify as an ABS under SMCRA. Further, if the SRF no longer qualifies as an ABS, it can place the primacy of West Virginia’s state mining regulatory program at risk and subject certain parts or the entire program to a “takeover” by the federal Office of Surface Mining (OSM).
The Association is actively reviewing the decision as is WV DEP and we will advise the membership of further details are they are developed.