Court Decision May Bring Clean Water Act 'Uncertainty'

Language in discharge permits is landing some companies in court in a trend some attorneys describe as rising uncertainty around Clean Water Act compliance.

“A West Virginia coal company learned the hard way that it’s not enough to do everything it was required to do under its Clean Water Act permit. It also has to ensure that the water into which it discharges meets water quality standards,” Bloomberg BNA reported.

The U.S. Court of Appeals for the Fourth Circuit decided in January that Fola Coal, a Consol Energy subsidiary, violated the Clean Water Act by failing to abide by language in its discharge permit about underlying water quality standards.

The decision “which has been cited in other federal courts, has spurred lawyers for national groups representing municipal-owned wastewater utilities and mining companies to warn their members about the potential pitfalls of ignoring boilerplate language,” the report said.

Experts urged lawyers for facilities operating under discharge permits to read the language carefully. Amanda Aspatore, associate general counsel for the National Mining Association, which includes Consol Energy, said court decisions like this one “are causing uncertainty among the permit holders,” Bloomberg BNA reported

Attorney L. Marissa Grace wrote in The National Law Review that the decision could “severely” impact the regulated community.

Another expert said companies should seek precise language in their discharge permits to protect them from lawsuits, according to Bloomberg BNA.

Claudia V. Colón García-Moliner of Manko Gold Katcher & Fox, a law group devoted to energy and environmental issues, explained the implications of the ruling like this:

The Clean Water Act (“CWA”) generally forbids discharging contaminated effluent into waters of the United States unless the discharger holds a National Pollution Discharge Elimination System (“NPDES”) permit. Once a discharger holds a permit, they are shielded from discharge related liability- unless, as the Fourth Circuit observed in the recent case of Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, No. 161024 (4th Cir., 1/04/2017), the permit holder is noncompliant.

Environmentalists say industry stakeholders are making too much of the ruling. Larry Levine, staff attorney for the Natural Resources Defense Council, said their reactions amount to making a “mountain out of a molehill.”

“This ruling reaffirms existing law,” Levine said, per Bloomberg BNA.