Management of Water and Water Quality in Coal Mining: A Legal Perspective

With the passage of the federal Surface Mining Control and Reclamation Act1 (“SMCRA”) in 1977 life changed dramatically for coal mine operators. Prior thereto the regulation of coal mines had been solely the province of the states. Now, everything from securing permits to mine to the reclamation of mined lands is controlled by federal law.

Congress sought to impose a nationwide system of coal mining regulation, with the states only re-achieving “primacy” to regulate mining after having state programs approved by the federal Office of Surface Mining and Reclamation Enforcement (“OSM”). Otherwise, OSM retained the regulatory role. In addition, OSM always maintains “oversight” authority should it believe a state is not properly enforcing the law even if a state program has been approved. Both state and OSM inspectors are employed to ensure that mine operators are complying with the regulations and specific permit requirements. Operators found to be in noncompliance are issued a “notice of violation” (“NOV”), which can lead to a monetary fine or even a cessation order stopping production.

The coal producing states with an OSM approved program have adopted their own version of SMCRA and corresponding regulations. Water is one of the primary subjects of SMCRA regulation. As you will see, this has resulted in a situation where water rights and water quality/quantity