CWA’s Permit Shield Spans SMCRA 

On March 30 in the case of Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc., the Fourth Circuit upheld a district court’s dismissal of a citizen suit to enforce alleged violations of the Surface Mining Control and Reclamation Act (SMCRA) where the surface coal mine’s discharges were covered by a permit issued under the Clean Water Act (CWA) and SMCRA.

Certain non-profit groups alleged a mine operator had violated the SMCRA, CWA and Resource Conservation and Recovery Act by discharging pollutants without a permit from certain underdrains at a now-inactive mine in Virginia. The underdrains were associated with sedimentation ponds and had been identified as outfalls in an earlier permit for the mine. In a later permit renewal, those outfalls were removed after the Division of Mined Land Reclamation (DMLR) within Virginia’s Department of Mines, Minerals and Energy authorized the removal of those sedimentation ponds following reclamation. The underdrains continued to discharge groundwater contributing to elevated total dissolved solids (TDS) and conductivity in receiving streams, which were the subject of a Total Maximum Daily Load for TDS and total suspended solids (TSS). 

Although the permittee and DMLR did not consider groundwater discharging from the underdrains to constitute point source discharges, the Environmental Protection Agency (EPA) disagreed and objected to the issuance of the renewed permit because it considered such discharges to not be covered by a permit. Despite the EPA’s objection, DMLR reissued the renewed permit without the outfalls for the underdrains. The EPA notified DMRL it considered the renewed permit to be invalid and informed the permittee it was violating the CWA by discharging pollutants without a CWA permit (i.e., a National Pollutant Discharge Elimination System or “NPDES” permit).

In analyzing the alleged CWA violations, the district court considered whether the permit shield defense applied given that the joint NPDES and SMCRA permit included monitoring requirements for outfalls as point sources and for underdrains as groundwater monitoring sites. The court concluded that the underdrain discharges were within the ambit of the NPDES permit shield because they had been disclosed in the permit application. And even though the DMLR had chosen to regulate these discharges under the SMCRA portion of the permit, it knew these discharges would contribute TDS and conductivity and had not imposed discharge limits. The court concluded that, because the permittee did what the DMLR told it to do and met its CWA obligations, it could rely upon the regulators’ clear directives and on the permit shield, and therefore dismissed the CWA claim.

The permit shield defense also came into play in the dismissal of the SMCRA claim. However, there is no permit shield under SMCRA permits. Instead, the district court determined that if liability could lie for alleged violations of SMCRA based on the very same water quality issues raised in the CWA claim, such an outcome would allow SMCRA to override the CWA and would violate SMCRA’s savings clause. 

SMCRA’s savings clause provides that “[n]othing in this chapter shall be construed as superseding, amending, modifying, or repealing” various laws, including the CWA. 30 USC § 1292. The permittee had urged the court to adopt the Sixth Circuit’s reasoning in Sierra Club v. ICG Hazard LLC, in which “the court held that where a discharger
complies with the CWA based on application of the permit shield, SMCRA’s savings clause prohibits a finding of liability under SMCRA for the same discharges.” The Sixth Circuit had reasoned that “[t]o hold, in connection with the very same selenium discharges that [the permittee] is in compliance with Kentucky water quality-based effluent limitations for purposes of the CWA but in violation of those same water quality standards under [SMCRA] would create an inconsistency or conflict in regulatory practice, in direct contravention” of SMCRA’s savings clause.

The Red River Coal Co. district court agreed that, even though certain narrative water quality standards applicable under SMCRA (e.g., prohibiting material damage to the hydrologic balance outside the permit area) were not expressly inconsistent with the CWA, applying these narrative standards as the plaintiffs suggested “would impermissibly circumvent the CWA’s permit shield” and dismissed the SMCRA claim. The court also dismissed the RCRA claim because plaintiffs had agreed to pursue this claim only if the underdrains were non-point sources, which the court had determined they were not.

The Fourth Circuit reached the same conclusion as the district court.

Hopefully, other courts will follow the lead of the Fourth and Sixth circuits. But even in other jurisdictions, mine operators should bear in mind that the NPDES permit shield can potentially do double duty. When faced with a citizen suit premised on water quality violations under SMCRA and/or the CWA, confer with legal counsel and assess whether the discharges at issue are authorized by a state or the EPA-issued NPDES permit.

Coty Hopinks-Baul is senior counsel with Husch Blackwell LLP. She can be reached at

coty.hopinks-baul@huschblackwell.com.