Forty years after passage of the Clean Water Act, interpretation of the act's applicability to the surface coal mining industry continues to evolve. Due to the very nature of surface mining, where enormous amounts of overlying rock is blasted, excavated, and placed, any regulation that impacts the operations can have significant impact, not only on these methods of operation, but on the viability of the industry itself. Such is the case with surface coal mining in Appalachia, where mining techniques have evolved to recover entire coal seams within the mountains encompassing thousands of acres of surface disturbance. This article addresses the regulatory friction between modern surface coal mining techniques and aspects of the Clean Water Act governing activities in "waters of the United States."
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This article is reprinted with the permission of American Bar Association's Section of Environment, Energy and Resources, Copyright ©2012.