PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 16-1024


OHIO   VALLEY   ENVIRONMENTAL   COALITION;      WEST     VIRGINIA
HIGHLANDS CONSERVANCY; and SIERRA CLUB,

                Plaintiffs - Appellees,

           v.

FOLA COAL COMPANY, LLC,

                Defendant - Appellant.

------------------------------------

AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN PETROLEUM
INSTITUTE; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES;
NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL MINING ASSOCIATION; UTILITY WATER
ACT GROUP,

                Amici Supporting Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Robert C. Chambers,
Chief District Judge. (2:13-cv-05006)


Argued:   October 27, 2016                 Decided:    January 4, 2017


Before MOTZ and DIAZ, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Diaz and Judge Lee joined.
ARGUED: Michael Shane Harvey, JACKSON KELLY PLLC, Charleston,
West Virginia, for Appellant.      Joseph Mark Lovett, APPALACHIAN
MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellees.
Thomas M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Amici The State of West
Virginia   and    West    Virginia   Department    of   Environmental
Protection.    ON BRIEF: Robert G. McLusky, Jennifer L. Hughes,
JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant.
J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg,
West Virginia; James M. Hecker, PUBLIC JUSTICE, Washington,
D.C., for Appellees.     Karen C. Bennett, Samuel L. Brown, Brian
R. Levey, Kristy Bulleit, HUNTON & WILLIAMS LLP, Washington,
D.C.; Jan A. Poling, AMERICAN FOREST & PAPER ASSOCIATION,
Washington,   D.C.;    Amanda   Waters,   Erica   Spitzig,   NATIONAL
ASSOCIATION OF CLEAN WATER AGENCIES, Washington, D.C.; Linda E.
Kelly, Quentin Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS,
Washington, D.C.; Peter Tolsdorf, AMERICAN PETROLEUM INSTITUTE,
Washington, D.C.; Tom Ward, NATIONAL ASSOCIATION OF HOME
BUILDERS, Washington, D.C., for Amici American Forest & Paper
Association, American Petroleum Institute, National Association
of Clean Water Agencies, National Association of Home Builders,
National    Association     of   Manufacturers,     National   Mining
Association and Utility Water Act Group.            John C. Cruden,
Assistant   Attorney    General,   David   S.   Gualtieri,   Jennifer
Neumann, Environment and Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
United   States    Environmental    Protection   Agency.      Patrick
Morrisey, Attorney General, Elbert Lin, Solicitor General, Erica
N. Peterson, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia; Kristin
Boggs, General Counsel, Thomas L. Clarke, Senior Policy Advisor
and   Counsel,    WEST    VIRGINIA   DEPARTMENT    OF   ENVIRONMENTAL
PROTECTION, Charleston, West Virginia, for Amici The State of
West Virginia and West Virginia Department of Environmental
Protection.




                                 2
DIANA GRIBBON MOTZ, Circuit Judge:

     Several environmental groups brought this action against a

coal company, alleging that the company had violated the Clean

Water Act and seeking appropriate injunctive relief.                        After a

bench    trial,   the    district    court     found    that     the    company   had

indeed    violated      the   Act   and    ordered     it   to   take    corrective

measures.    The company appeals, principally asserting that its

National Pollution Discharge Elimination System (“NPDES”) permit

shields it from liability.           Because the company did not comply

with the conditions of its permit, the permit does not shield it

from liability under the Clean Water Act, and the district court

properly ordered appropriate remedial measures.                   Accordingly, we

affirm the judgment of the district court.



                                          I.

                                          A.

     The Clean Water Act forbids all discharges of pollutants

into waters of the United States, unless the discharger holds a

permit.     33 U.S.C. §§ 1311(a), 1342, 1362 (2012).                        The Act

shields NPDES permit holders from liability if their discharges

comply with their permits.                33 U.S.C. § 1342(k).            A typical

NPDES permit lists numerical limitations on specific types of

effluents and includes other conditions required for compliance

with state and federal law.                The Act requires that effluent

                                          3
limits    reflect        applicable        water         quality       standards.      See   33

U.S.C.     § 1312(a).            These      water         quality        standards    may     be

numerical or narrative, 40 C.F.R. § 131.3(b) (2016), and may,

but need not be, contained in a permit.

        Under    the     Act,    if    a    state        receives       approval     from    the

Environmental Protection Agency (“EPA”), it can administer its

own NPDES permitting program.                       See 33 U.S.C. § 1342(b).                 EPA

reviews and must approve any substantive changes to a state’s

permit program.              See id.       In 1981, West Virginia received EPA

approval to administer its own permit program and has done so

ever since.

        West    Virginia        has    promulgated          a    number     of     regulations

necessary to comply with the national NPDES program.                                 All West

Virginia        NPDES    permits       incorporate          (either       expressly    or    by

reference)       numerous       provisions          of    the    West     Virginia    Code    of

State Rules.            These include a series of regulations governing

NPDES    permits        in    general,     as   well        as     a    separate    series   of

regulations governing NPDES permits for coal mining.                                   Compare

W. Va. Code R. § 47-10 (2016) (general NPDES regulations), with

W. Va. Code R. § 47-30 (coal mine NPDES regulations).

        In 1996, Fola Coal Company, LLC obtained a West Virginia

NPDES coal mine permit to discharge into Stillhouse Branch, a

tributary of Twentymile Creek and a waterway adjacent to Fola’s

surface mining facility in central West Virginia.                                Fola applied

                                                4
for and received a renewed NPDES permit in 2009.                              The provisions

of that permit lie at the heart of this case.

                                              B.

        On    March    13,   2013,      three      environmental          groups     --    Ohio

Valley        Environmental        Coalition,            West        Virginia      Highlands

Conservancy, and Sierra Club (collectively “the Coalition”) --

filed    this       action   under      the   Clean      Water        Act’s    citizen    suit

provision, 33 U.S.C. § 1365.                  The Coalition alleged that Fola

violated       5.1.f,    a     West     Virginia        regulation       incorporated       in

Fola’s permit.          At the time Fola’s renewal permit was issued in

2009, 5.1.f provided:

        The discharge or discharges covered by a WV/NPDES
        permit are to be of such quality so as not to cause
        violation   of  applicable  water   quality  standards
        adopted by the Department of Environmental Protection,
        Title 47, Series 2.

W. Va. Code R. § 47-30-5.1.f (2009).                     The Coalition alleged that

Fola     violated       5.1.f     by     discharging          ions      and    sulfates     in

sufficient          quantities     to     cause         increased        conductivity        in

Stillhouse       Branch,       which     resulted        in     a    violation     of     water

quality standards.              Specifically, the Coalition asserted that

Fola’s discharges violated two narrative water quality standards

contained       in    Fola’s     permit.          See    id.        §§ 47-2-3.2.e,      -3.2.i

(2016); see infra n.8.

        In response to the Coalition’s allegations, Fola pointed

out    that    it     disclosed    the    nature        of    its     discharges     when   it

                                              5
applied for the 2009 renewal permit.                              At that time, Fola had

stated that its discharges would include ions and therefore be

highly conductive.             Despite this disclosure, the West Virginia

Department of Environmental Protection (“WVDEP”) set no specific

limitations on conductivity in Fola’s permit.                                      By declining to

do so, Fola asserted, WVDEP made an affirmative choice not to

impose    any     limit       on     conductivity.                According          to     Fola,    it

followed     that          5.1.f     did     not       obligate         Fola        to    limit      the

conductivity          of     its     discharges          even       if     that          conductivity

resulted    in     a       violation       of   water        quality       standards.               Fola

reasoned    that,          because    it     complied         with       the       effluent    limits

expressly set out in its permit, the permit shielded it from all

liability under the Act.

     To     gain       support       for     its       view       that     5.1.f         imposed      no

obligation on it, in 2013 Fola sought clarification from WVDEP

regarding    a     new       West    Virginia          law    enacted          a    year     earlier,

involving       the    permit        shield.            The       new     law       provided        that

“Notwithstanding             any      rule      or       permit          condition           to     the

contrary, . . . compliance with a permit issued pursuant to this

article shall be deemed compliance for purposes of” the Clean

Water    Act’s     permit          shield.         2012      W.     Va.    SB       615     (formerly

codified at W. Va. Code § 22-11-6(2) (2013)).                                      WVDEP responded

that, in its view, this legislation did not substantively change

existing    law       but    simply        clarified         West    Virginia’s            consistent

                                                   6
interpretation    of    the    permit       shield.         Under    this     assertedly

consistent     view,    a     permit       holder      need    only        disclose     its

discharges of effluents to WVDEP and comply with the effluent

limits in the permit.          If the permit holder did this, according

to WVDEP, the permit would shield the permit holder from all

liability under the Clean Water Act.

     In 2015, WVDEP attempted to remove from 5.1.f the language

at issue in this case, which requires permit holders to comply

with water quality standards.              In doing so, WVDEP admitted that

when the agency had issued Fola a renewal permit in 2009, 5.1.f

“require[d]     coal    NPDES        permittees        to     meet        water   quality

standards, whether or not such standards are delineated in the

permit   or    contained       in    the        administrative        record      of    the

permitting process.”          WVDEP, Response to Comments, 47 CSR 30,

WV/NPDES Rule for Coal Mining Facilities, at 1 (2014), http://

apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=26342&Format=PDF.

Nonetheless,    WVDEP       opined    that       its   removal       of    the    relevant

language from 5.1.f “does nothing more than make [state law]

consistent with” the Clean Water Act, which, according to WVDEP,

did not require compliance with water quality standards.                          Id.

     Notwithstanding WVDEP’s views, EPA did not approve WVDEP’s

attempted changes to 5.1.f.            Instead, in a series of letters to

WVDEP, EPA explained its concerns that the elimination of the

water quality standards language in 5.1.f could cause state law

                                            7
to    conflict      with       federal     law       and    weaken    the     state’s       NPDES

program.       WVDEP’s explanations did not assuage EPA’s concerns,

and EPA did not approve any changes to 5.1.f or to any other

language      incorporated          in    Fola’s      permit.         In    2015,     the    West

Virginia Legislature enacted another provision similar to SB 615

that    explicitly         prohibited        enforcing        water        quality    standard

violations         against       permit    holders.          But     again,    EPA     did    not

approve the removal of the relevant portion of 5.1.f or any

similar changes to the state’s NPDES permit program that might

affect Fola’s permit.

       Nevertheless, armed with WVDEP’s interpretation of SB 615

and    the    legislative          actions      outlined       above,       Fola     urged   the

district      court       to   hold      that    permit      provision       5.1.f     did    not

prohibit       Fola       from     violating         West     Virginia        water    quality

standards.          Fola further contended that it could not be held

accountable         for    increased        conductivity           and     resulting        water

quality      violations          because    the      effluents       it     discharged       fell

within       the   numerical        levels      allowed       in   its      permit     or    were

disclosed during the permitting process.

                                                C.

       After a bench trial, at which the district court considered

mountains of expert testimony, reports, and charts, the court

issued a thorough written opinion.                         The court found that 5.1.f

constituted an enforceable permit provision that required Fola

                                                 8
to     refrain    from    violating     West     Virginia’s    water    quality

standards,       including     the   narrative    water    quality     standards

contained in §§ 47-2-3.2.e and -3.2.i.

       The court found that mine drainage like that which Fola

discharged into Stillhouse Branch deposited significant amounts

of ions into the receiving water. 1            Ohio Valley Envtl. Coalition,

Inc. v. Fola Coal Co., 82 F. Supp. 3d 673, 686–87 (S.D. W. Va.

2015).      These ions are measured by conductivity, id. at 687, and

the    conductivity      of   Stillhouse    Branch   had   markedly    increased

since Fola began discharging mine drainage into the water, id.

at 696–98.

       As conductivity in Stillhouse Branch increased, the experts

explained and the court found, sensitive insect species, which

could not adapt to the sudden and dramatic change, died.                 Id. at

687.       The decrease in aquatic diversity caused a decrease in the

stream’s score on the West Virginia Stream Condition Index (“the




       1
       In order to extract coal, Fola blasted rock and dumped it
into Stillhouse Branch. See Gregory J. Pond et al., Downstream
Effects   of  Mountaintop   Coal   Mining:  Comparing  Biological
Conditions Using Family- and Genus-Level Macroinvertebrate
Bioassessment Tools, 27 J. N. Am. Benthological Soc’y 717, 718
(2008) (explaining surface coal mining).     The minerals in the
rock reacted with the flowing water to release calcium,
bicarbonate, and sulfate ions.    See Emily S. Bernhardt et al.,
How Many Mountains Can We Mine? Assessing the Regional
Degradation of Central Appalachian Rivers by Surface Coal
Mining, 46 Envtl. Sci. & Tech. 8115, 8115 (2012).


                                        9
Index”), 2 which WVDEP and EPA had long used to measure the health

of streams.       The court noted that EPA considered Index scores

below 68 to indicate impairment and that, in 2009 when WVDEP

issued Fola’s renewal permit, WVDEP had generally shared that

view.      See    id.     at    677,     679    &   n.4.      The   trial    evidence

established that since 2003 Stillhouse Branch had consistently

scored well below 68, ranging from 31.6 to 58.17.                     Id. at 696.

     The     district      court        concluded      that   “when     conductivity

reaches 300 [µS/cm], it is more likely than not that” the Index

score    will    drop    below     68    and    “the   subject      stream   will   be

biologically impaired.”            Id. at 687 (citing EPA, A Field-Based

Aquatic Life Benchmark for Conductivity in Central Appalachian

Streams    (Final       Report),    EPA/600/R-10/023F,         at     A-36   (2011)).

Samples from Stillhouse Branch reported conductivity that was

ten times higher than this 300 µS/cm threshold.                      Id. at 696–98.

The court found that Fola’s mining increased conductivity in

Stillhouse      Branch    and    that     “high     conductivity      in   downstream

Stillhouse Branch is causing -- or, at the very least materially

contributing to -- a significant adverse impact to the chemical

and biological components of the stream’s aquatic ecosystems” in




     2 See A Stream Condition Index for West Virginia Wadeable
Streams 1-2 (2000), http://www.dep.wv.gov/WWE/watershed/bio_fish
/Documents/WVSCI.pdf.


                                           10
violation of the West Virginia narrative water quality standards

incorporated into Fola’s permit.                    Id. at 698.

      With      respect      to     remedy,     the    district       court,     at    Fola’s

urging,        rejected       the    Coalition’s           proposed     remedy        as     too

burdensome.           Instead, the court appointed a Special Master of

Engineering to monitor Fola’s implementation of less burdensome

methods Fola proposed.              Fola timely noted this appeal.

                                               D.

      A    court      must    interpret       an     NPDES    permit    as     it     would    a

contract.       Piney Run Pres. Ass’n v. Cty. Comm’rs, 268 F.3d 255,

269 (4th Cir. 2001).                Thus, to the extent that the judgment of

the   district        court    rests     on    interpretation          of    Fola’s        NPDES

permit, that interpretation constitutes a legal question, which

we review de novo.             Id.     But to the extent that judgment rests

on factual findings made after a bench trial, we can reverse

only if those findings are clearly erroneous.                         Id.



                                              II.

        Fola     principally          contends        that     the      district           court

misinterpreted its permit.

      In doing so, Fola presents a narrow argument.                            The company

expressly       acknowledges         that     its    permit    “incorporates”          5.1.f.

Reply     Br.    at    3.     Fola     admits       that    “permit    holders        are    not

shielded from violations of permit conditions.”                             Id. at 1.        And

                                               11
the company forgoes any claim that 5.1.f does not impose water

quality standards, including those found in 3.2.e and 3.2.i.

Fola’s     sole    argument    is    that       5.1.f   controls      the    conduct    of

WVDEP, the state regulator, and imposes no requirements on Fola,

the regulated entity.

      Fola     offers      three     points        assertedly         supporting       this

argument.      First, the company maintains that 5.1.f is ambiguous

but   is    best    interpreted      as     a    regulation      of    the    permitting

authority, not the permit holder.                   Second, Fola contends that

the district court failed to examine “extrinsic evidence,” which

it argues eliminates any ambiguity and demonstrates that, in the

“contemplation       of    the      parties,”       5.1.f     clearly        imposed    no

obligation on the permit holder.                  Finally, Fola claims that our

holding and analysis in Piney Run requires a court to conclude

that 5.1.f imposes obligations only on the permitting authority.

We consider each of these arguments in turn.

                                            A.

      We    initially     examine     the       language    of    Fola’s      permit     to

determine if it is indeed ambiguous.                    As we recognized in Piney

Run, “if ‘the language [of a permit] is plain and capable of

legal      construction,      the    language       alone   must       determine’      the

permit’s meaning.”         Piney Run, 268 F.3d at 270 (quoting FDIC v.

Prince George Corp., 58 F.3d 1041, 1046 (4th Cir. 1995)).



                                            12
        Contrary to Fola’s assertions, the text of 5.1.f of the

permit    seems      straightforward         and    unambiguous.          The   provision

prohibits     “discharges          covered    by”    the    permit    from      violating

water quality standards.                  Of course, it is the permit holder

that generates “discharges covered by” the permit.                              Thus, the

provision controls the activities of the permit holder -- here

Fola.     The state agency simply drafts the permit.                       That agency,

WVDEP, has no control over the permit holder’s discharges.

        Further,     there    is     no   mention    in    5.1.f     of    “regulating,”

“drafting a permit,” or “determining effluent limits,” all core

activities      of   the     state    regulator.          Rather,    the    language   of

5.1.f focuses on the discharges themselves.                         One would have to

rewrite 5.1.f substantially to read it as imposing obligations

on WVDEP. 3     As written, the plain language of 5.1.f indicates it

applies    to     Fola,     the    permit     holder,      not   WVDEP,      the   agency

granting the permit.

        Review of the provisions surrounding 5.1.f further supports

this conclusion.           5.1.f is contained in a section of the permit


     3 For example, if 5.1.f imposed requirements on the state
regulator rather than the permit holder, it would more naturally
read: “The discharge or discharges covered by a WV/NPDES permit
are to be of such quality regulated by the Department of
Environmental Protection so as not to cause violation of
applicable water quality standards adopted by the Department of
Environmental Protection that agency, Title 47, Series 2.”
Notably, these changes would require both insertions and
deletions.


                                             13
entitled     “Conditions         Applicable     to   All     Permits,”        and    in    a

subsection       entitled    “Duty    to   Comply;        Penalties.”         The    first

mandate of the subsection states, “The permittee must comply

with all conditions of a WV/NPDES permit.”                       See W. Va. Code R.

§ 47-30-5.1.a (2009) (emphasis added).

     This subsection then lists several ways a permit holder can

violate the permit separate and apart from violations of the

permit’s effluent limits.             For example, under this subsection, a

permit holder violates the permit when it “falsifies, tampers

with, or knowingly renders inaccurate any monitoring device or

method required to be maintained under a WV/NPDES permit.”                               Id.

§ 47-30-5.1.d.           And a permit holder violates a permit when it

“knowingly       makes      any    false      statement,         representation,          or

certification       in    any     record   or   other      document      submitted        or

required    to    be     maintained    under    this      permit.”        Id.    § 47-30-

5.1.e.

     It seems unlikely that immediately following these clear

restrictions       on    permit    holders,     in   a    subsection      specifically

addressed to permit holders, the drafters inserted in 5.1.f a

directive    not    to    permit     holders,    but      only    to    the   regulating

agency.       Indeed,       it    makes    little        sense    for    5.1.f      to    be

incorporated into all coal mining permits, see id. § 47-30-5, if

5.1.f does not obligate the permit holder in any way.



                                           14
        Accordingly,   the   district   court’s   conclusion   that   5.1.f

unambiguously regulates permit holders seems entirely warranted. 4

                                      B.

        Furthermore, rather than supporting Fola’s interpretation,

all relevant extrinsic evidence points to the conclusion that

5.1.f imposes obligations on the permit holder, not the state

permitting agency.

     Fola’s argument to the contrary relies almost entirely on

statements from WVDEP and the West Virginia Legislature.                Fola

contends that these statements prove that neither body intended

5.1.f to create an obligation on permit holders to meet water

quality standards beyond the numerical effluent limits in the

permit.     The Legislature’s 2013 and 2015 amendments and WVDEP’s

statements certainly evince West Virginia’s present desire to

cease    enforcement   of    water   quality   standards   against    permit

holders.      But neither WVDEP’s current interpretation nor the

Legislature’s actions in amending state law in 2013 and 2015

constitute extrinsic evidence supporting Fola’s interpretation

of its 2009 permit.


     4 Fola contends that the district court’s holding renders
the effluent limits in the permit superfluous.   But by Fola’s
own admission, the effluent limits do not delineate all the
discharges disclosed to the regulating agency.  5.1.f captures
those discharges, not explicitly regulated by effluent limits,
which nonetheless decrease water quality and harm the aquatic
ecosystem.


                                      15
      And Fola is simply wrong in contending that “[t]here is no

evidence    that    West     Virginia       ever       intended”     to        hold     permit

holders liable for violations of water quality standards.                                  Br.

of Appellant at 34 (emphasis added).                   In fact, Fola has provided

no evidence that the Legislature or WVDEP lacked this intent

when Fola’s renewal permit was issued in 2009.                                 Rather, the

record evidence indicates this was precisely what was intended.

      In 2011, two years after the issuance of Fola’s current

permit,    WVDEP    pursued       an     enforcement        action    against           Fola’s

parent company based on violations of the exact water quality

standards at issue here as incorporated into the NPDES permit

through    5.1.f.      See      Complaint    in    Intervention           at    12,     United

States v. Consol Energy, Inc., No. 1:11-cv-0028 (N.D. W. Va.

Mar. 14, 2011), ECF No. 6-1.                And Fola’s parent company agreed

to    injunctive    relief       to    remedy     these     violations.                Consent

Decree, Consol Energy, No. 1:11-cv-0028 (N.D. W. Va. Jun. 15,

2011),     ECF   No.     3-1.          Moreover,       as   late     as        2015,     WVDEP

interpreted      5.1.f     to    require        coal    companies         holding        NPDES

permits to meet water quality standards.                    See WVDEP, Response to

Comments, at 1.        This was the very reason why WVDEP attempted to

amend 5.1.f.     See id.

      Fola nonetheless insists that 5.1.f cannot subject it to

any    substantive        obligations        because,         during           the      formal

rulemaking in which 5.1.f was added to West Virginia’s NPDES

                                           16
program,    EPA      stated   that    the    new       rules    would     not    alter    any

“substantive         rights    or     obligations.”               Revision        of     West

Virginia’s NPDES Program Transferring Authority over Coal Mines

and Coal Preparation Plants from the West Virginia Department of

Natural Resources; Division of Water Resources to Its Division

of Reclamation, 50 Fed. Reg. 2996, 2997 (Jan. 23, 1985).                                 That

argument      both     misreads      the     history       of     5.1.f     and    ignores

important record evidence.

      5.1.f’s        prohibition       against          violating        water     quality

standards     originated      in     pre-1984       West       Virginia    surface       coal

mining     regulations.              See    West        Virginia        Surface        Mining

Reclamation       Regulations,       ch.    20-6,       ser.     VII,    § 6B.04       (1983)

(“Effluent Limitations - Discharge from the permit area shall

not violate effluent limitations or cause a violation of water

quality standards.”).             At that time, the surface coal mining

regulations clearly recognized that permit holders were subject

to enforcement actions for violating both effluent limitations

and   water    quality    standards.             Id.       In    1984,    West    Virginia

consolidated its surface coal mining regulations with its water

pollution     regulations.           See    Preamble       to    Proposed       Regulations

Consolidating the Article 5A and Article 6 Program (filed Nov.

9, 1984).       As a result of this consolidation, the regulations

governing     NPDES     permits      for     coal      mines     thereafter       included



                                            17
provisions like 5.1.f that were previously found in the surface

mining regulations.            See WVDEP, Response to Comments, at 1.

       The origin of 5.1.f renders untenable Fola’s reliance on

EPA’s determination that the consolidated new regulations did

not alter “substantive rights or obligations.”                           EPA was correct.

The    new    regulations          did    not   alter       any   obligations       under   a

permit; they simply brought existing obligations on surface coal

mines    into    a    single       regulatory        scheme.      Surface    coal     mining

facilities       were     already         subject      to    substantively         identical

obligations       prior       to    the    consolidation          of   the   regulations.

Thus,    EPA    had     no     reason     to    conclude       that    the   consolidated

regulations altered any “substantive rights or obligations.”

       Moreover, although ignored by Fola, EPA’s view as to the

reach of 5.1.f has been consistent, as has the acceptance by

courts of EPA’s view when interpreting similar water quality

provisions.          In contrast to WVDEP’s recent change of heart, EPA

has     remained       clear       through      the    years      that    5.1.f      imposes

obligations on permit holders.                       Before us, EPA has filed an

authoritative amicus brief pointing this out and reiterating its

position.       As EPA notes in its brief, some of the NPDES permits

that    EPA     itself       has    issued      impose      narrative      water    quality




                                                18
standards       like      those    in   Fola’s         permit. 5       That    water     quality

standards        have      been    enforced            against     NPDES      permit     holders

demonstrates the error in Fola’s contention that 5.1.f cannot

reasonably           be   interpreted        to        impose    obligations       on     permit

holders like Fola.

       In sum, both the plain language of the provision and the

extraneous evidence support the district court’s holding that

5.1.f        constitutes,         as    it    has        for     decades,      a   regulation

enforceable           against      NPDES      permit        holders,       not     the    state

permitting agency.

                                                  C.

        Finally, Fola argues that our holding in Piney Run somehow

prohibits this conclusion.                   According to Fola, Piney Run held

that        permit    holders      “who      disclose          their   pollutants        to   the

permitting agency and thereafter comply with the effluent limits

        5
       See, e.g., EPA NPDES Permit No. NH0100099 for the Town of
Hanover, New Hampshire, pt. I.A.2, .3 and .6, https://www3.epa
.gov/region1/npdes/permits/2015/finalnh0100099permit.pdf;       EPA
2015 Multi-Sector General Permit for Stormwater Discharges
Associated   with  Industrial   Activity,   pt.   2.2.1,   https://
www.epa.gov/sites/production/files/2015-10/documents/msgp2015
_finalpermit.pdf.   Moreover, courts have enforced water quality
standards   provisions   when,   as   here,   the    NPDES   permit
incorporates these standards.       See, e.g., Nat. Res. Def.
Council, Inc. v. Cty. of Los Angeles, 725 F.3d 1194, 1199, 1205
(9th Cir. 2013); Nw. Envtl. Advocates v. City of Portland, 56
F.3d 979, 985–90 (9th Cir. 1995); Nat. Res. Def. Council v.
Metro. Water Reclamation Dist. of Greater Chicago, 175 F. Supp.
3d 1041, 1049–54 (N.D. Ill. 2016).    In support of its contrary
view, Fola relies on inapposite, unpublished, and overruled
cases.


                                                  19
in their NPDES permits are shielded from liability” under the

Clean Water Act.              Br. of Appellant at 43.               Therefore, Fola

contends, since it “disclosed the presence of conductivity in

its     discharges      and    has   complied         with    the   effluent   limits

established by . . . WVDEP,” it too is shielded from liability

under     the   Act,    even    if   it    violated        provision   5.1.f   of   its

permit.     Id.   There are multiple problems with this contention.

      First, and most fundamentally, Fola misstates our holding

in Piney Run.           We expressly held that a permit shields “its

holder from liability . . . as long as . . . the permit holder

complies with the express terms of the permit and with the Clean

Water Act’s disclosure requirements.”                      Piney Run, 268 F.3d at

259 (emphasis added). 6          Fola ignores the emphasized language and

wishes     away   its    violation        of    one   of    “express   terms   of   the

permit” -- provision 5.1.f.                    Piney Run offers no support for

this approach.

      Fola attempts to bolster its misunderstanding of Piney Run

by misinterpreting the careful examination of the history of the

Clean Water Act we set forth in that case.                      See id. at 264-66.

We recognized that requirements that permit holders meet water


      6Of course, to obtain the benefits of the permit shield a
permit holder must also not discharge a pollutant in excess of
the effluent limitations for that pollutant as listed in the
permit. Piney Run, 268 F.3d at 259. That requirement is not at
issue here.


                                               20
quality      standards       had     been       the   “primary      means      of    federal

regulation” prior to the 1972 enactment of the Clean Water Act.

Id. at 264.         The Act provided regulators with another tool --

“direct limitations on the discharge of pollutants” in the form

of numerical caps on those discharges -- and a means to regulate

-- NPDES permits.            Id. at 265 (quoting Friends of the Earth,

Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 151 (4th

Cir. 2000)(en banc)).

      In Piney Run, we explained that adherence to its permit

shielded a permit holder from liability under the Act.                              Id.    But

contrary     to    Fola’s       apparent        belief,     we    did    not     hold      that

numerical         limitations         on        specific        pollutant        discharges

constituted       the    only      proper    subject       of    regulation      under     the

Clean Water Act.         Rather, we noted that, despite the Clean Water

Act’s “shift in focus of environmental regulation towards the

discharge of pollutants, water quality standards still have an

important role in the [Clean Water Act’s] regulatory scheme.”

Id. (emphasis added).

      Compounding its error, Fola refuses to recognize that Piney

Run involved very different issues than those presented here.

In   Piney    Run,      we   did    not     consider      the    enforceability           of   a

permit’s     requirement        that      the    permit     holder      adhere      to    water

quality standards, let alone the enforceability of the specific

narrative water quality standards required by West Virginia’s

                                                21
NPDES permit.            Piney Run involved the enforcement of numerical

limitations         on    the    discharge        of    pollutants       under       a        very

different Maryland NPDES permit. 7                 In that context, we concluded

that       the   holder    of   a   Maryland      NPDES       permit    who     “discharges

pollutants that are not listed in its permit” was nonetheless

shielded         from    liability     under      the    Clean        Water    Act       if     it

“adequately         disclosed”       those     discharges        “to     the     permitting

authority.”        Id. at 268.

       But this conclusion in Piney Run does not allow an NPDES

permit holder in West Virginia to ignore 5.1.f’s requirement

“not to cause violation of applicable water quality standards.”

Indeed, although Piney Run involved a permit that regulated only

numerical         effluent      limitations,       rather       than     also     directing

adherence to water quality standards like the permit at issue

here,      we    iterated    and    reiterated         that    only    “follow[ing]           the

terms of their NPDES permits” allows permit holders to avoid

liability.         Id. at 265; see also id. at 259 (explaining that to

be shielded from liability under the Clean Water Act, a permit

holder must comply “with the express terms of [its] permit”).

Piney Run provides Fola no way to avoid liability if Fola has

       7Maryland’s NPDES permits do not contain a provision
similar to 5.1.f. Rather, unlike in West Virginia, the Maryland
permitting agency simply will not issue a permit unless it
“finds that the discharge meets . . . applicable State and
federal water quality standards.”   Md. Code Ann., Envir. § 9-
324(a)(1) (West 2016).


                                             22
not complied “with the express terms of its permit,” including

provision 5.1.f.

     Nothing in Piney Run forbids a state from incorporating

water quality standards into the terms of its NPDES permits.

Rather, Piney Run held, as we do today, that a permit holder

must comply with all the terms of its permit to be shielded from

liability.     The terms of Fola’s permit required it to comply

with water quality standards.        If Fola did not do so, it may not

invoke the permit shield.



                                    III.

     Having    rejected    Fola’s    principal    contention    that   5.1.f

imposes   no   obligations   on     it,   we   turn   to   Fola’s   remaining

argument -- that the district court erred in finding that Fola

violated 5.1.f.

                                     A.

     Through 5.1.f., Fola’s permit incorporates narrative water

quality standards prohibiting discharges into Stillhouse Branch

that are “harmful” or have a “significant adverse impact” on

aquatic ecosystems. 8     In a long, remarkably thorough opinion, the


     8 These standards provide in relevant part:
          3.2 No sewage, industrial wastes or other wastes
     present in any of the waters of the state shall cause
     therein or materially contribute to any of the
     following conditions . . .
(Continued)
                                     23
district court explained its reasons for concluding that Fola’s

discharges into Stillhouse Branch violated these narrative water

quality standards in Fola’s permit.                  The court relied on the

testimony,    reports,          charts,    studies,        and     exhibits     from

experienced scientists who had published extensively in peer-

reviewed journals.        All of the experts supported the Coalition’s

contention    that    Fola      violated       the   permit’s     narrative    water

quality standards. 9

     In   doing     so,   the    experts   used      the   West   Virginia    Stream

Condition    Index        to    determine        whether     Fola’s    discharges

biologically compromised Stillhouse Branch.                  Both EPA and WVDEP

have long used the Index to measure water quality.                            When a




            . . .
                3.2.e. Materials in concentrations which are
          harmful, hazardous or toxic to man, animal or
          aquatic life;
          . . .
                3.2.i.   Any   other   condition,   including
          radiological exposure, which adversely alters the
          integrity of the waters of the State including
          wetlands; no significant adverse impact to the
          chemical, physical, hydrologic, or biological
          components    of   aquatic  ecosystems   shall   be
          allowed.
W. Va. Code R. § 47-2-3 (2016).

     9 Fola offered a witness whom the district court found
“h[eld] no training in the study of ecology” and, prior to being
retained by Fola as an expert in this litigation, “had never
analyzed the type of ecological data” at issue here.     Fola, 82
F. Supp. 3d at 681. On appeal, Fola does not suggest that the
district court should have credited this witness’s testimony.


                                          24
stream’s Index score falls below 68, EPA considers the stream

impaired     under   33   U.S.C.    §     1313(d).        See    infra      n.11.      The

experts      explained     that     the    release        of    ions      from      Fola’s

discharges     caused     the     conductivity       in    Stillhouse        Branch     to

increase and sensitive insect species to die, thereby causing

the stream’s Index score to fall well below 68.                           Fola, 82 F.

Supp. 3d at 696.           On the basis of the expert evidence, the

district court found that Fola’s discharges caused or materially

contributed to the impairment of Stillhouse Branch by increasing

the conductivity of the stream.

     On appeal, Fola makes no contention that the district court

erred   in    finding     that    Fola’s    discharges          in   fact    caused     or

materially      contributed        to     the    biological          impairment         in

Stillhouse Branch.        And Fola does not argue that narrative water

quality standards cannot be enforced; it could not do so given

that the Supreme Court has held to the contrary.                       See PUD No. 1

of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 716

(1994) (explaining that the Clean Water Act “permits enforcement

of broad, narrative criteria” and “only one class of criteria,

those   governing    ‘toxic       pollutants    listed         pursuant     to   section

1317(a)(1),’ need be rendered in numerical form”).

     Instead, Fola offers brief and largely derivative “process”

arguments.      A substantial portion of those arguments involve

Fola’s mischaracterization of the district court’s careful and

                                          25
detailed     fact-finding.            Fola      attempts      to       treat     that    fact-

finding,     which        of   course     can     only   be       reversed       if    clearly

erroneous, as “rulemaking” subject to de novo review.

                                             B.

       First, Fola maintains that it was deprived of “fair notice”

that water quality standards were enforceable provisions of its

permit.      This assertion rests on Fola’s own misinterpretation of

the    language      in    its    2009    permit     and      a    studied       refusal    to

acknowledge        that    language’s      history,      all      of    which     we    detail

above.      Suffice it to say again that, when the Coalition filed

this lawsuit in March 2013, Fola had been bound by the 2009

permit at issue here for four years.                       Moreover, in 2011, two

years prior to the commencement of this action, WVDEP brought

suit   to    enforce       the    water    quality       standards        at     issue    here

against Fola’s parent company.                  And, prior to initiation of this

case, Fola’s parent company had in fact agreed to take measures

to remedy its violations of those water quality standards.                                Fola

thus   had    ample,       personalized         notice    that      the    water       quality

standards in a West Virginia NPDES permit were enforceable, and

would be enforced, against a permit holder.

       Fola next contends that it relied on guidance from WVDEP

that the State would not pursue any enforcement action based on

conductivity or water quality standards.                      But again as explained

above,      Fola    offers       no   evidence      that      WVDEP       made    any     such

                                             26
assurance     in    2009    when       WVDEP          last        renewed       Fola’s      permit.

Moreover,    such    contemporaneous              assurances            seem     unlikely     given

WVDEP’s decision in 2011 to bring an enforcement action based on

these very water quality standards.                          Further, even if Fola had

offered evidence that WVDEP made such assurances when it issued

Fola’s renewal       permit      in     2009,         that     would      not     foreclose     the

Coalition from bringing this lawsuit.                          For Congress enacted the

citizen     suit    provision         of     the       Clean       Water       Act    to    address

situations,     like      the    one       at    hand,       in    which       the    traditional

enforcement agency declines to act.                         See Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 53, 60 (1987).

An   agency’s       informal         assurance          that        it     will       not    pursue

enforcement cannot preclude a citizen’s suit to do so.                                       See 33

U.S.C. § 1365(b)(1)(B).

        Finally, Fola argues that the district court engaged in

unlawful     rulemaking.             That        argument          is     similarly         unsound.

Hornbook     law    defines       “a       rule”       as     “a        generally      applicable

principle    or     standard      developed            by    some        authority       including

administrative authorities.”                    1 Admin. L. & Prac. § 1:20 (3d ed.

2016).       The    district         court       did     not       create       any    “generally

applicable    principle         or     standard.”              The       court       made   factual

findings    based    on    the       evidence         presented          in    this    particular

case.     The only rules for which the court found Fola liable are

contained in its permit, specifically §§ 47-30.5.1.f and 47-2-

                                                 27
3.2.e and -3.2.i.           These rules have long been incorporated into

Fola’s permit, and EPA has never approved their removal.                                       They

remain unchanged and controlling.

       We must reject Fola’s attempts to transform the district

court’s detailed fact-finding into rulemaking.                              After carefully

assessing the record before it, the district court found as a

fact   that    that    a     failing      Index        score    indicated          an   impaired

stream and that Fola’s mining caused the increased conductivity

that   resulted       in    that    impairment.            These      findings          are    well

supported by the record evidence.                     None are clearly erroneous.

       Some even rest on undisputed facts.                        For example, EPA has

identified, and Fola does not dispute, “mining” as the source of

the impairment of Stillhouse Branch.                      See WVDEP, 2012 Final West

Virginia      Integrated         Water    Quality        Monitoring         and     Assessment

Report List Page 14 (reviewing the 2012 Clean Water Act Section

303(d) Impaired Waters List).                       Moreover, Fola stipulated that

its    mine   is    the     only       mine    that     discharges          into    Stillhouse

Branch.       And   WVDEP        itself       has    explained,       and    Fola       does    not

disagree,      that        the    Index        “was     specifically          designed          for

assessment     of     the    biological             component    of    the     47       C.S.R.    2

§ 3.2.i    narrative        criteria”         as     applicable       to    waters       such    as

Stillhouse     Branch.           WVDEP,       Justification        and       Background         for

Permitting      Guidance         for     Surface        Coal    Mining       Operations          to

Protect West Virginia’s Narrative Water Quality Standards, 47

                                                28
C.S.R.         2     §§       3.2.e      and       3.2.i,      at       4      (2010),

http://www.dep.wv.gov/pio/Documents/Narrative/Narrative Standard

s Guidance Justification.pdf.

       Despite this historic consensus, Fola argues that WVDEP has

recently      rejected    the    Index    as   a   sole     determinant      of   water

quality, and that the court has therefore “usurped” the agency’s

role    in    its   use   of    the   Index.       This     argument    rests     on    a

mischaracterization of the district court’s use of the Index.

The court did not enshrine the Index as the sole acceptable

method of establishing violations of water quality standards.

Rather, the court explained that it only relied on the Index

“[i]n        the    absence     of     [WVDEP]      advancing       a       meaningful

methodological alternative.”              Fola, 82 F. Supp. 3d at 679.                 On

appeal, neither Fola nor WVDEP points to any “methodological

alternative” to the Index.               In the absence of any alternative,

the district court simply applied the methodology both WVDEP and

EPA have applied for years.

       The district court found that, until 2012, EPA and WVDEP

had generally agreed to use an Index score of 68 to determine

whether water quality standards were being met.                         If a stream

scored below 68, the stream was to be listed as impaired.                          Id.




                                          29
at 677. 10      The record offers abundant support for this finding.

See,        e.g.,    Letter     from     Shawn       M.   Garvin,     EPA    Regional

Administrator,         to      Randy      C.       Huffman,    Secretary,       WVDEP

[hereinafter Garvin Letter], Enclosure 1, at 16 (Mar. 25, 2013)

(“When       determining      whether    to    add   waters   to    West    Virginia’s

Section 303(d) list, EPA used West Virginia’s narrative water

quality criteria (W. Va. CSR §§ 47-2-3.2(e) & (i)) as applied to

the       aquatic    life     uses,     and    WVDEP’s    bioassessment       listing

methodology for its 2010 Section 303(d) list (i.e., [the Index])

. . . .”); see also WVDEP, 2010 West Virginia Integrated Water

Quality Monitoring and Assessment Report 14 (2010) (explaining

the direct relationship between § 47-2-3.2.i, Index scores, and

impaired water listing).

       Indeed, Fola concedes that EPA and WVDEP have long used the

Index.        Neither agency -- nor anyone else before this case --

suggested that this use required promulgation of a formal rule.

Rather, the Index has been used, as the district court used it,

as    a     method   for    assessing     compliance       with     narrative    water


       10
       Prior to 2012 when it ceased using the Index to determine
impairment, WVDEP had attempted to include a “gray-zone” listing
between 60.6 and 68.0.        EPA rejected this approach as
“unsupportable,” and continues to use 68 as the threshold. See
Garvin Letter, Enclosure 1, at 12 n.3.    For our purposes, this
dispute is immaterial because the district court found that
Stillhouse Branch had an Index score ranging from 31.60 to
58.17.   Fola, 82 F. Supp. 3d at 696.   Fola does not challenge
these findings.


                                              30
quality standards.           Far from creating a rule for determining

violations of water quality standards, the court simply made a

factual    determination      using     the       Index     as    a    well-established

methodology.         Employing   this       methodology,         the    district       court

came to the same conclusion as EPA had -- Stillhouse Branch was

impaired. 11

     Similarly,       contrary    to    Fola’s          assertions,          the    district

court’s    determinations        as    to        conductivity         also     constituted

findings of fact, not rulemaking.                      The court heard extensive

expert testimony on the causal relationship between increased

conductivity in Appalachian streams and impairment as evidenced

by declining Index scores.            Fola, 82 F. Supp. 3d at 679-86.                     The

court     credited     the    testimony          of    accepted       experts       and   an

authoritative       EPA   publication.                All   concluded        that     mining

activities cause increases in conductivity, which in turn cause

impairment.    Id. at 686–96.

     The    court     noted    that    peer-reviewed             scientific         articles

first recognized the relationship of mining, conductivity, and


     11While Fola focuses on notice as it relates to procedure,
it is worth mention that Fola also had notice of the court’s
factual determination that Stillhouse Branch was impaired.
WVDEP (with EPA approval) has listed Stillhouse Branch on its
impaired waters list based on biological impairment since 2006.
See WVDEP, 2006 Integrated Water Quality Monitoring and
Assessment Report List Page 15 (2006); id. at 20 (explaining
that WVDEP assessed biological impairment using the Index).



                                            31
decreased Index scores in 2008, a year before issuance of Fola’s

renewal permit.       See id. at 690 (citing Pond et al., supra n.1).

Other articles strengthened these findings.                Id. (citing, among

others, M.A. Palmer et al., Mountaintop Mining Consequences, 327

Sci. 148 (2010) (finding that as conductivity increased, Index

scores decreased)).          In rebuttal, Fola offered an expert whom

the district court found unqualified -- an assessment Fola does

not challenge on appeal.

       Finally, the relief the district court ordered belies any

suggestion that it engaged in rulemaking.                  The court had the

“discretion to determine” appropriate relief.                  See Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 192 (2000).         In exercising that discretion, the district

court    refused   to    order   Fola    to    implement   the    solution    the

Coalition proposed, a reverse osmosis system.                 The court deemed

this    solution      “too   expensive       and   too   uncertain.”         Order

Specifying Relief at 5, Fola, No. 2:13-cv-5006 (S.D. W. Va. Dec.

8, 2015), ECF No. 183.           Instead, the court appointed a special

master to oversee implementation of Fola’s proposed solution,

which focused on water management practices that respond to the

unique characteristics of Stillhouse Branch.                Id. at 6–7.        The

court did not require Fola to achieve any particular Index score

or     conductivity     level,    but    simply     ordered      Fola   to   take

appropriate measures either to reduce the conductivity in its

                                        32
discharges or to increase the Index score of Stillhouse Branch.

Id. at 1.   The relief ordered by the district court reflects its

careful fact-based findings, not unprincipled rulemaking.

     In sum, Fola’s arguments as to why the district court erred

in finding that Fola violated its permit, like Fola’s arguments

as to the permit’s reach, uniformly fail.



                               IV.

     Accordingly, for the reasons set forth above, the judgment

of the district court is

                                                        AFFIRMED.




                               33