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Discharges From Historic Mining Properties: Asserting and Defending Citizen Suits Under the Clean Water Act

James R. May, Proceedings of 50th Annual Rocky Mountain Mineral Law Institute (2004)

By-products from mining activities can pollute surface water and groundwater in a variety of ways. These include discharges from internal mine workings, such as seepage from active and historical mining tunnels and corresponding shafts, pipes, stopes, drains, adits, and laterals. 1 Contaminated runoff and “acid mine drainage” from external workings, such as waste and and slag piles, 2 tailings ponds, 3 exposed inactive mining pits, 4 and other ongoing surface operations 5 can also cause water quality problems. Mountaintop removal, 6 longwall or surface mining, 7 and pumping unaltered but contaminated groundwater in a coalbed methane extraction operation can also adversely affect water quality. 8

Warts and all, the Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA or Act), 9 provides the most straightforward federal regulatory response to the water quality impacts of mining. Its objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 10 To help achieve this goal, the CWA prohibits illegal discharges of pollutants, that is, “additions” of “any pollutants” from “point sources” into “navigable waters” by “persons” without, or violating the conditions of, a permit. 11 The two most common CWA permits are the National Pollutant Discharge Elimination System (NPDES) permit, issued for most pol