PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WEST VIRGINIA HIGHLANDS 

CONSERVANCY, INCORPORATED;

WEST VIRGINIA RIVERS COALITION,

Plaintiffs-Appellees,

v.

RANDY C. HUFFMAN, Secretary,

West Virginia Department of  No. 09-1474

Environmental Protection,

Defendant-Appellant.

INTERSTATE MINING COMPACT

COMMISSION,

Amicus Supporting Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(1:07-cv-00087-IMK)

Argued: September 21, 2010

Decided: November 8, 2010

Before WILKINSON, SHEDD, and DUNCAN,

Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Shedd and Judge Duncan joined. 
COUNSEL

ARGUED: Benjamin L. Bailey, BAILEY & GLASSER,

LLP, Charleston, West Virginia, for Appellant. James M.

Hecker, PUBLIC JUSTICE, Washington, D.C., for Appellees.

ON BRIEF: Raymond S. Franks, WEST VIRGINIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Charleston, West Virginia, for Appellant. Joseph M. Lovett,

Derek Teaney, APPALACHIAN CENTER FOR THE

ECONOMY AND THE ENVIRONMENT, Lewisburg, West

Virginia, for Appellees. Gregory E. Conrad, Executive Director, INTERSTATE MINING COMPACT COMMISSION,

Herndon, Virginia; Richard S. Morrison, Assistant Counsel,

COMMONWEALTH OF PENNSYLVANIA, Department of

Environmental Protection, Harrisburg, Pennsylvania, for

Amicus Supporting Appellant.

OPINION

WILKINSON, Circuit Judge:

The West Virginia Department of Environmental Protection ("WVDEP") appeals an injunction requiring it to obtain

National Pollutant Discharge Elimination System permits

under the Clean Water Act ("CWA"), see 33 U.S.C. § 1342

et seq., for reclamation efforts at abandoned coal mining sites.

The injunction was based on the district court’s conclusion

that the plain language of the CWA and applicable EPA regulations require such a permit. 

The trial court’s ruling was correct. The text of the CWA,

as well as the corresponding regulations issued by the Environmental Protection Agency, confirm that the permit requirements apply to anyone who discharges pollutants into the

waters of the United States. Under the CWA, it does not matter that a mining company may have created the conditions

2 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the

waters of the United States. In fact, the statute contains no

exceptions for state agencies engaging in reclamation efforts;

to the contrary, it explicitly includes them within its scope. 

At bottom, WVDEP’s arguments stem from little more than

policy disagreements with the statutory text. Finding that to

be an insufficient basis for deviating from the law as written,

we affirm the judgment of the district court.

I.

A.

Congress enacted the Federal Water Pollution Control Act

Amendments of 1972, better known as the Clean Water Act

("CWA"), in order to "restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters." Pub.

L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C.

§ 1251 et seq.). In furtherance of those goals, the CWA bans,

among other things, "the discharge of any pollutant by any

person." 33 U.S.C. § 1311(a). On its face, the ban is sweeping

in scope: the Act defines "person" to include not just private

individuals and companies, but also states and municipalities,

see 33 U.S.C. § 1362(5), and covers "any addition of any pollutant to navigable waters from any point source," see 33

U.S.C. § 1362(12)(A). 

In the coal industry, "the discharge of . . . pollutant[s]"

occurs frequently. The mining process often contaminates

water associated with the mine site (such as stormwater or

wastewater) with pollutants like iron and manganese. This

polluted water is known as "acid mine drainage" because mining makes the water quite acidic, often decreasing the pH to

well below 6.0. Under the pH scale, a pH of 7.0 is neutral, a

pH of less than 7.0 is acidic, and a pH of greater than 7.0 is

basic. The fact that acid mine drainage has a pH of at most

WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 3
6.0 means that it is substantially more acidic than a neutral

solution.

Of course, the CWA does not set out to ban coal mining.

Instead, it allows mining companies to apply for pollution

permits, known as National Pollutant Discharge Elimination

System ("NPDES") permits. These permits set forth limitations on the type and quantity of pollutants that will ultimately be released into navigable waters. See S. Fla. Water

Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102 (2004);

Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1375

(D.C. Cir. 1977) (observing that the permit scheme recognizes

that "pollution continues because of technological limits, not

because of any inherent rights to use the nation’s waterways

for the purpose of disposing of wastes."). While NPDES permits are normally issued by the EPA, states can petition to run

their own NPDES permit programs. See 33 U.S.C.

§§ 1342(a)-(b). In administering these programs, states are

free to treat the EPA’s pollution limits as a floor and impose

more stringent requirements. See 40 C.F.R. §§ 123.1(i)(1),

123.25. Once an NPDES permit has been issued, however, the

state, the EPA, and citizens alike can sue to enforce it. See 33

U.S.C. §§ 1319(a)(3) (EPA enforcement), 1365(a) (citizensuit provision).

West Virginia has successfully petitioned to run its own

NPDES permit program, meaning that putative mine operators must apply to the West Virginia Department of Environmental Protection ("WVDEP") rather than the EPA.1

See 47

1Under the federal Surface Mining Control and Reclamation Act of

1977 ("SMCRA"), Pub. L. No. 95-87, 91 Stat. 447, codified at 30 U.S.C.

§ 1201 et seq., mining companies must also obtain a general permit for

mining operations. See 30 U.S.C. § 1256. As a baseline rule, these permits

are issued by the federal Office of Surface Mining Reclamation and

Enforcement (known as "OSM"). Id. Yet states can petition to exercise

exclusive regulatory jurisdiction over coal mining so long as they agree to

and can enforce the minimum standards set forth in SMCRA. See 30

U.S.C. § 1253(a). West Virginia has successfully petitioned to administer

its own program, and WVDEP manages this permit scheme as well. See

30 C.F.R. § 948.10. 

4 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
Fed. Reg. 22363 (May 24, 1982) (approving West Virginia’s

program); W. Va. Code R. § 47-10-1 et seq. (setting forth regulations governing NPDES program). Because acid mine

drainage is one of the most serious water quality problems

facing West Virginia, its NPDES permits carry a corresponding obligation to neutralize the adverse effects of the effluent.

See W. Va. Code R. § 22-3-9(a)(16) (requiring the submission

of a reclamation plan along with a permit application); id. at

§ 22-3-10 (outlining reclamation plan requirements). In other

words, mine operators must raise the overall pH level and

reduce the harmful chemical levels in the acid mine drainage.

West Virginia, however, does not just blindly trust the mine

operators to carry out their obligations. Instead, as a condition

of receiving their permits, mine operators must post bonds

with the state designed to guarantee their compliance. See W.

Va. Code § 22-3-11(a). If the mine operators default on their

duties, WVDEP can revoke the permits and force the performance bonds into forfeiture. See W. Va. Code § 22-3-17(b).

The consequences of revocation are what bring this case

before us. State regulations require WVDEP to treat acid mine

drainage at bond forfeiture sites in accordance with the EPA’s

effluent limitations for coal mining point sources and "applicable water quality standards." W. Va. Code R. § 38-2-12.5.e

(referencing standards set forth in 40 C.F.R. § 434); see id. at

§ 38-2-12.4.b. The EPA limitations are known as

"technology-based" limitations because they are predicated

upon the "best practicable" known technologies for treatment.

40 C.F.R. § 434.32. Based on average daily emissions, these

standards require, among other things, a pH level between 6.0

to 9.0, an iron concentration of no more than 3 mg/l of effluent, and a manganese concentration of at most 2 mg/l. See 40

C.F.R. § 434.35. These limits are stringent, but ultimately less

so than West Virginia’s applicable water quality standards, as

the state has decided to require iron and manganese limitations that are twice as strict (1.5 mg/l and 1.0 mg/l, respectively). See W. Va. Code R. § 47-2, app. E, tbl.1, parameters

8.15, 8.17. 

WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 5
According to WVDEP’s own regulations, WVDEP must

meet these standards by taking "the most effective actions

possible to remediate acid mine drainage, including chemical

treatment where appropriate, with the resources available."

W. Va. Code R. § 38-2-12.4.c. Generally speaking, WVDEP

initially employs the existing treatment system as a temporary

salve and then installs a series of water wheels that mechanically release neutralizing agents. That system increases the

pH of the water out of the acidic range and precipitates out the

harmful chemicals. In short, it is intended to turn acid mine

drainage back into normal water. 

As effective as this treatment may be, it is not cheap.

WVDEP’s regulations require the agency to direct the entire

proceeds of the forfeited penal bond towards reclamation. W.

Va. Code R. § 38-2-12.4.b. Often, the bond proceeds are

insufficient; in such circumstances, WVDEP must continue

treatment by drawing upon the Special Reclamation Fund

("SRF"). W. Va. Code R. § 38-2-12.4.d; see also West Virginia ex rel. W. Va. Highlands Conservancy, Inc. v. WVDEP,

447 S.E.2d 920, 925 (W. Va. 1994) (holding that duty to

expend SRF funds is "mandatory" and "nondiscretionary"); 67

Fed. Reg. 37610, 37612 (May 29, 2002) (removing limitations on expenditure of funds). The SRF is funded by a tax on

coal mined throughout the state. W. Va. Code §§ 22-3-11(g),

-11(h)(1) (setting tax at 14.4 cents/ton). 

B.

The dispute before us stems from WVDEP’s reclamation

efforts at several bond forfeiture sites in Preston, Monongalia,

and Upshur counties in north central West Virginia. In 2007,

the West Virginia Highlands Conservancy and West Virginia

Rivers Coalition (collectively, "the Conservancy") requested

water quality data from those sites. Based on the data, the

Conservancy determined that there were eighteen bond forfeiture sites in northern West Virginia that were actively discharging acid mine drainage into state streams. 

6 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
In 2007, the Conservancy filed suit in the United States

District Court for the Northern District of West Virginia

under the CWA’s citizen-suit provision. See 33 U.S.C.

§ 1365. The lawsuit sought declaratory and injunctive relief

requiring WVDEP to obtain NPDES permits at the bond forfeiture sites within thirty days.2

 According to the Conservancy, it was not enough for WVDEP to comply with its state

regulatory mandate to "take the most effective actions possible to remediate acid mine drainage." See W. Va. Code R.

§ 38-2-12.4.c. Instead, WVDEP had to obtain NPDES permits

for the bond forfeiture sites because it was violating the CWA

by discharging pollutants into navigable waters. See 33 U.S.C.

§§ 1311, 1362(12)(A).

After the suit was filed, WVDEP stipulated that the pH,

iron, manganese, and aluminum levels in the water at the sites

frequently exceeded both the EPA technology-based and

West Virginia water quality standards. It also stipulated that

those chemicals are pollutants under the CWA and that they

are being discharged into navigable waters. At his deposition,

WVDEP’s designated representative Larry Ellison further

acknowledged that the pollutant levels at the sites would not

meet the West Virginia water quality standards and admitted

that the discharge points have "the physical characteristics of

a point source" under the CWA. Ellison also conceded that

WVDEP had not issued itself any permits for the eighteen

bond forfeiture sites despite having issued permits to the former site operators when the sites were active. In recent history, in fact, WVDEP has issued itself only one permit for a

bond forfeiture site, and only did so after being sued by the

2The Conservancy also filed a companion suit in the United States District Court for the Southern District of West Virginia based on elevated

pollutant levels at three bond forfeiture sites in that portion of the state.

The Conservancy successfully moved for summary judgment in August

2009. See W. Va. Highlands Conservancy v. Huffman, 651 F. Supp. 2d

512 (S.D. W.Va. 2009). On August 31, 2009, the court issued a judgment

requiring WVDEP to file NPDES permit applications within 180 days and

obtain those permits within 360 days. 

WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 7
Conservancy and receiving a letter from the EPA stating that

a permit was required. 

Notwithstanding these facts, WVDEP maintained that

NPDES permits were unnecessary for bond forfeiture sites.3

On its view, permits are simply not necessary for state agencies cleaning up acid mine drainage generated by others.

Unpersuaded, the Conservancy moved for summary judgment

in August 2008. The district court granted the motion on January 14, 2009. After additional briefing on the timing of

injunctive relief, the court issued a final judgment on March

26, 2009 ordering WVDEP to apply for permits within 180

days and obtain final permits within 360 days. This appeal followed.4

II.

WVDEP’s chief obstacle in this appeal is that the Clean

Water Act is a broadly worded statute. See Rapanos v. United

States, 547 U.S. 715, 723 (2006) (plurality opinion) (the terms

"discharge of a pollutant" and "pollutant" in Section 1311(a)

are "defined broadly"); United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133 (1985) ("Congress chose to

define the waters covered by the Act broadly."). The plain

text bears this point out, declaring that "the discharge of any

3WVDEP also argued that the Conservancy’s suit "constitutes a raid on

the State treasury in violation of the Eleventh Amendment," and it renews

that argument here. We disagree. Under Ex parte Young, 209 U.S. 123

(1908), the Conservancy can sue Secretary Huffman to secure WVDEP’s

prospective compliance with the law. Indeed, under longstanding Supreme

Court precedent, the financial burdens of compliance with prospective

decrees raise no Eleventh Amendment concerns. See Milliken v. Bradley,

433 U.S. 267, 288-90 (1977); Edelman v. Jordan, 415 U.S. 651, 666-68

(1974). In any event, the burdens WVDEP foresees are speculative at this

point; this suit is merely about whether or not WVDEP has to obtain permits. 

4WVDEP has issued draft permits and the EPA has commented on

them, but WVDEP has not yet issued final permits. 

8 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
pollutant by any person shall be unlawful." 33 U.S.C.

§ 1311(a) (emphasis added). The definitions do the same: the

CWA defines "person" to include states, municipalities, and

political subdivisions of a State, 33 U.S.C. § 1362(5), and

describes a point source as "any discernible, confined and discrete conveyance," see 33 U.S.C. § 1362(14) (emphasis

added). Lest there be any remaining doubt about the CWA’s

scope, the definition of "discharge of a pollutant" resolves it:

according to that provision, the CWA bans "any addition of

any pollutant to navigable waters from any point source." See

33 U.S.C. § 1362(12)(A) (emphasis added). "Any" is a powerful statutory term. The Clean Water Act uses it frequently.

At first blush, WVDEP’s conduct at bond forfeiture sites

appears covered by these provisions. As a political subdivision of West Virginia, WVDEP is a "person" under the CWA.

See 33 U.S.C. § 1362(5). WVDEP has stipulated that water is

being "discharge[d]" at the bond forfeiture sites, and that the

water contains "pollutant[s]." 33 U.S.C. § 1311(a). WVDEP’s

designated representative has further acknowledged that the

outfalls from these sites have "the physical characteristics of

a point source" and that permits would be required if the

mines were still privately owned. And the parties have agreed

that the receiving streams are "water[s] of the United States

as defined at 33 U.S.C. § 1362(7)." Put together, these facts

establish that WVDEP is a person proceeding in violation of

§ 1311(a) by discharging pollutants into navigable waters

from a point source. As a result, WVDEP must obtain NPDES

permits for the bond forfeiture sites.

As if the statutory language were not clear enough, the

applicable EPA regulations confirm that WVDEP needs to

obtain NPDES permits. The EPA has issued a series of regulations addressing the operations of the NPDES permit

scheme. See 40 C.F.R. § 122.1 et seq. Those regulations

define the term "person" to include state agencies. See 40

C.F.R. § 122.2. They also confirm the broad reach of the term

"discharge of a pollutant," which, under the regulations, "inWEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 9
cludes additions of pollutants into waters of the United States

from . . . surface runoff which is collected or channeled by

man" and "discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which

do not lead to a treatment works." 40 C.F.R. § 122.2; see also

id. (defining a "[p]rivately owned treatment works" as "any

device or system which is (a) used to treat wastes from any

facility whose operator is not the operator of the treatment

works and (b) not a ‘POTW’"); 40 C.F.R. § 403.3 (defining

a "POTW" or "Publicly Owned Treatment Works" as "a treatment works . . . which is owned by a State or municipality").

What is more, the EPA issued regulations in 1985 establishing that post-mining discharges are covered by the

NPDES scheme. See 50 Fed. Reg. 41296 (Oct. 9, 1985). In

those regulations, the EPA "reemphasize[d] that post-bond

release discharges are subject to regulation under the Clean

Water Act," observing that "[i]f a point source discharge

occurs after bond release, then it must be regulated through an

NPDES permit." Id. at 41298. The comments to the rule

sharpen this point, flatly stating that "[a]ny point source discharge after bond release does require a permit." Id. at 41304

(emphasis added). To the extent parties do not comply, the

regulations state that they will be "subject to enforcement

action by EPA under section 309 of the Act and by citizens

under section 505(a)(1) of the Act." Id. at 41298. While these

regulations explicitly address situations where a bond is

released rather than forfeited to the state, the EPA’s intent is

pellucid. Both those who generate pollution and those who

superintend ongoing discharges must obtain NPDES permits.

III.

WVDEP, however, advances a welter of arguments for why

it should not have to obtain NPDES permits. We shall address

them in turn. 

10 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
A.

First, WVDEP argues that it should be exempt from the

NPDES scheme because it is a state agency engaging in reclamation efforts rather than a private company intentionally discharging pollutants. But both the text of the CWA and the

EPA’s implementing regulations squarely reject any exemption for state agencies like WVDEP. See 33 U.S.C. § 1362(5)

(defining "person" as both a "State" and a "political subdivision of a State"); 40 C.F.R. § 122.2 (defining a person as,

among other things, a "State or Federal agency"). Indeed, the

regulations describing the content of a permit application

require the operator to disclose its "status as Federal, State,

private, public, or other entity," thus denoting that state agencies are covered by the Act. 40 C.F.R. § 122.21(f)(4) (emphasis added). 

Moreover, the statute contains no exemption for reclamation efforts; to the contrary, it bans "the discharge of any pollutant by any person," regardless of their motives. 33 U.S.C.

§ 1311(a) (emphasis added). Nonetheless, amicus Interstate

Mining Compact Commission ("IMCC") argues that the word

"addition" in the definition of "discharge of a pollutant"

implies "agency, i.e., responsibility for creating the polluting

condition" and excludes "actions which actually reduce the

load of pollutants which will enter the receiving surface

water." However, the word "addition," in context, means

something different from what IMCC suggests. By defining

"discharge of a pollutant" as "any addition of any pollutant to

navigable waters from any point source," 33 U.S.C.

§ 1362(A) (emphasis added), the statute clearly covers all

additions – no matter how small – rather than merely net additions. In other words, "[t]he Act does not impose liability only

where a point source discharge creates a net increase in the

level of pollution. Rather, the Act categorically prohibits any

discharge of a pollutant from a point source without a permit."

Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist.,

13 F.3d 305, 309 (9th Cir. 1993). Indeed, WVDEP itself

WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 11
offers no serious response to this textual reality; to the contrary, it concedes that "some entity will always be responsible

for obtaining an NPDES permit when discharges requiring a

permit are occurring."

The regulations are fatal to WVDEP’s position in other

ways as well. 40 C.F.R. § 122.3 sets forth a list of

"[e]xclusions" from the NPDES permit requirement, but none

of them come close to covering WVDEP. Nevertheless,

WVDEP urges us to find its conduct covered by the Water

Transfers Rule, which states that no permit is required for "activity that conveys or connects waters of the United States

without subjecting the transferred water to intervening industrial, municipal, or commercial use." 40 C.F.R. § 122.3(i). But

that exception only applies when pollutants are transferred

from one navigable water to another. 73 Fed. Reg. 33697,

33699 (June 13, 2008) ("[T]he water being conveyed must be

a water of the U.S. prior to being discharged to the receiving

waterbody."); see also Friends of the Everglades v. S. Fla.

Water Mgmt. Dist., 570 F.3d 1210, 1227 (11th Cir. 2009)

("[T]he EPA’s [water transfer] regulation . . . accepts the unitary waters theory that transferring pollutants between navigable waters is not an ‘addition . . . to navigable waters.’").

Here, by contrast, neither the acid mine drainage nor the bond

forfeiture sites constitute "navigable waters." See 33 U.S.C.

§ 1362(7); 40 C.F.R. § 122.2. More importantly, the defendants were not "transferring" pollutants; they were discharging them. Any other construction would vitiate the Act.

B.

WVDEP also argues strenuously that it should not have to

obtain NPDES permits because it did not cause the discharges

in the first place. On WVDEP’s view, the only parties that

need to obtain NPDES permits are the mining companies who

commence operations at new locations and set new discharges

in motion. WVDEP argues that those parties must continue to

pay daily civil penalties and cleanup costs even after their per12 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
mit has expired, see W. Va. Code § 22-11-22(a); W. Va. Code

R. § 38-2-12.4.e, meaning that WVDEP need not obtain permits of its own.

This argument flounders for several reasons. First, and

most importantly, there is simply no causation requirement in

the statute. On its face, 33 U.S.C. § 1311(a) bans "the discharge of any pollutant by any person" regardless of whether

that "person" was the root cause or merely the current superintendent of the discharge. In other words, the statute takes

the water’s point of view: water is indifferent about who initially polluted it so long as pollution continues to occur. 

The EPA’s regulatory interpretations of the statute confirm

this point. The regulations make plain that it is the current

operator of a mine site, rather than the initial owner, who

must obtain a permit. See 40 C.F.R. § 122.21(b) ("When a

facility or activity is owned by one person but is operated by

another person, it is the operator’s duty to obtain a permit.").

This provision seems to confirm that where, as here, the mine

owner generates pollution but then abandons the site, the subsequent operator is the party responsible for obtaining a permit. 

Further evidence against WVDEP’s position comes from

the NPDES permits themselves. In West Virginia, the water

quality standards limit the overall levels of individual pollutants in the water rather than solely limiting the addition of

new pollution. See, e.g., W. Va. Code R. § 47-2, app. E, tbl.1,

parameters 8.15, 8.17. The technology-based standards set

forth by the EPA do the same thing. See 40 C.F.R. §§ 434.32,

434.35. The system Congress enacted thus allows the EPA

and the states to regulate overall pollutant levels without

regard to who generated that pollution. 

To be sure, Congress could have mandated a scheme much

more amenable to WVDEP’s arguments. For example, Congress could have required permits only where a new mine

WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 13
operator increases pollution levels over and above those of the

previous operator. But Congress did not do that, perhaps

because a causation approach would eliminate all accountability for states engaging in cleanup efforts, as they did not generate the pollution in the first place, or because a causation

requirement would allow for all manner of gamesmanship

among polluters: so long as a mining company could argue it

was not the root cause of pollution, it too would be free from

permit requirements. Whatever the reason, we take the statute

as it is, not as WVDEP wishes it would be. 

Unsurprisingly, the case law has likewise rejected

WVDEP’s proposed causation requirement. In United States

v. Law, 979 F.2d 977, 978 (4th Cir. 1992), we affirmed Law’s

conviction for knowingly discharging pollutants into the

waters of the United States without an NPDES permit. Law’s

offense was based on his failure to operate a water treatment

system effectively. Id. While Law had not generated the pollution being discharged from his collection and treatment

ponds, he was nevertheless held liable for allowing those pollutants to leach into navigable waters. Id. at 979 ("The origin

of pollutants in the treatment and collection ponds is therefore

irrelevant. The proper focus is upon the discharge from the

ponds."). In other words, root causation was irrelevant. Other

circuits are in accord. See Sierra Club v. El Paso Gold Mines,

Inc., 421 F.3d 1133, 1143 (10th Cir. 2005) ("[T]he liability

and permitting sections of the [CWA] focus on the point of

discharge, not the underlying conduct that led to the discharge."); Mokelumne River, 13 F.3d at 309 (same). 

Finally, in South Florida Water Management District v.

Miccosukee Tribe, the Supreme Court rejected as "untenable"

the argument that NPDES permits are only required when a

pollutant "originates from the point source." 541 U.S. 95,

104-05 (2004). To the contrary, the Court determined that

permits are required for discharges from point sources "that

do not themselves generate pollutants" but merely "convey

[pollutants] to ‘navigable waters.’" Id. at 105. Indeed, the

14 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
Court noted that "one of the [CWA’s] primary goals was to

impose NPDES permitting requirements on municipal wastewater treatment plants," and rejected any proposed interpretation of the Act that would "not cover such plants" on the

theory that they merely "treat and discharge pollutants added

to water by others." Id. Together, Law, El Paso, Mokelumne

River, and Miccosukee Tribe make clear that under the CWA,

the question of who generated pollutants is irrelevant. What

matters is who is currently discharging pollutants into navigable waters. 

C.

We turn next to WVDEP’s contention that the district

court’s position compels "absurd" results. According to

WVDEP, it would be "ridiculous, surreal, and downright perverse" to make WVDEP "apply to itself for permits, issue the

permits to itself, then police the agency’s own inevitable violations."

It is difficult to understand why that is the case. Most large

departments have different branches or divisions, and those

divisions perform different functions. WVDEP is no exception; it has, among other divisions, a Division of Land Restoration that administers cleanup programs, a Division of

Mining and Reclamation that reviews and issues permits for

mine sites, and a Division of Environmental Enforcement that

enforces permits. In fact, WVDEP previously applied to itself

for an NPDES permit for the Alton project, a bond forfeiture

site in Upshur County. By all accounts, the agency had no

problem evaluating the application and issuing the permit.

Moreover, WVDEP has stipulated that NPDES permits were

necessary for the bond forfeiture sites at issue here when they

were being actively mined. As WVDEP has assumed control

over the mines, it should be bound by the very same obligation. Of course, WVDEP might have a compelling argument

for differential treatment if there was some statutory basis for

it. But there is none. 

WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 15
Nor is it "absurd" for WDVEP to enforce permits against

itself. If the agency can issue itself permits, it can just as easily monitor them. And to whatever extent WVDEP is reluctant to do so, the CWA provides ample mechanisms for other

parties to fill the void. For example, the EPA could bring an

enforcement action against WVDEP under 33 U.S.C.

§ 1319(a)(3). Similarly, an environmental group could file

suit under the CWA’s citizen-suit provision, just as the Conservancy did here. See 33 U.S.C. § 1365(a). Viewed from that

perspective, the fact that WVDEP might feel uncomfortable

enforcing permits against itself is hardly a reason to exempt

it from the permit scheme in the first place.

D.

WVDEP’s final contention is that it would be futile to

require it to obtain NPDES permits because it simply cannot

comply with them. After all, the agency already struggles to

meet the EPA’s technology-based standards. Moreover,

argues WVDEP, the hefty costs of attempting to meet the permit requirements might lead the state to abandon reclamation

efforts altogether. Amicus IMCC elaborates on these "serious

negative consequences" of requiring NPDES permits, arguing

that such an approach would result in "more pollutants entering the Nation’s waters," both by increasing the serious financial and administrative burdens on the state and by

discouraging volunteer "good Samaritans" from entering into

"public/private partnerships" at bond forfeiture sites for fear

of "incurring liability and having to defend against lawsuits

by third parties for failure to meet NPDES permit requirements."

These arguments get things backwards. For one thing, these

consequences are as of now largely speculative. The sky did

not fall when WVDEP had to obtain an NPDES permit for the

Alton project site, and for all of WVDEP’s and IMCC’s cataclysmic predictions, we may not assume the sky will fall now.

More importantly, we are not in the business of rewriting laws

16 WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN
whenever parties allege it is difficult to comply with them.

Exempting the state on those grounds risks sending the wrong

message to mining companies: don’t bother complying with

the permits, because the state won’t either. 

Moreover, these arguments about the heavy burdens

imposed by the permit program are hardly novel. Any time

Congress imposes a permit scheme, some regulated entities

will complain that the permits impose onerous costs and will

lead to all manner of hazardous consequences. Here, Congress

has determined that a permitting scheme is the crucial instrument for protecting natural resources. It is for Congress to

weigh the consequences of compliance with the laws it enacts.

In passing the NPDES scheme, Congress considered the costs

and decided that the benefits were worth it. If Congress somehow struck the balance wrong, it is for Congress to correct it.

IV.

In sum, WVDEP’s state law obligations to take over bond

forfeiture sites and engage in reclamation efforts invoke Clean

Water Act obligations to obtain NPDES permits. Permit

requirements are often, and sometimes understandably, a

source of discomfort for those required to obtain them. If so,

West Virginia can attempt to ease the burdens it foresees. It

can petition Congress or the EPA to create exceptions to the

CWA for states that move to ameliorate the problems private

companies leave behind. Or WVDEP can address the other

side of the equation and increase the funds available for reclamation, either by raising the SRF tax on coal or enlarging the

bonds mining companies must post before beginning their

work.

Instead of availing itself of these various options, however,

WVDEP asks us to bring about the very same results by misconstruing the Clean Water Act. There are better audiences

for that invitation. We therefore affirm the judgment of the

district court.

AFFIRMED

WEST VIRGINIA HIGHLANDS CONSERVANCY v. HUFFMAN 17