D.C. District Court Overturns EPA Final Clean Water Act Guidance On Appalachian Surface Coal Mining Operations

On Tuesday, July 31, 2012, the U.S. District Court for the District of Columbia¹ ruled that the U.S. Environmental Protection Agency (EPA) overstepped its statutory authority under the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA), and infringed on the authority reserved to state regulators under those statutes when it issued a "guidance" memorandum on Sections 402 and 404 permitting decisions in Appalachia. This decision is noteworthy for the court's explicit rejection of EPA's attempt to expand its legal authority under the CWA as part of an effort to curb mountaintop mining in Appalachia.

In April 2010, the EPA released its "interim" guidance memorandum (later finalized in July 2011), which addressed its Appalachian Regional offices' involvement in Sections 402 and 404 permitting decisions in Appalachia. The guidance applied to only six states, and most notably contained EPA's "recommendation" that state