Abstract: On May 3, 2002, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) announced a regulation redefining two key terms, “fill material” and “discharge of fill material,” in rules that implement Section 404 of the Clean Water Act. This report discusses the 2002 rule, focusing on how it changes which material and types of activities are regulated under Section 404 and the significance of these issues, especially for the mining industry.

The Clean Water Act contains two different permitting regimes: (1) Section 402 permits (called the National Pollutant Discharge Elimination System, or NPDES, permit program) address the discharge of most pollutants, and (2) Section 404 permits address the discharge of dredged or fill material into navigable waters of the United States at specified sites. These permit programs differ in nature and approach. The NPDES program focuses on the effects of pollutant discharges on water quality. The 404 program considers effects on the aquatic ecosystem and other national and resource interests.

The Corps and EPA have complementary roles under Section 404. Landowners seeking to discharge dredged or fill material must obtain a permit from the Corps under Section 404. EPA provides environmental guidance on 404 permitting. The determination of what is “fill material” is important, since fill material is subject to 404 permit requirements, while discharge of non-fill material is regulated by EPA under the Section 402 NPDES permit program.

The revised rule was intended to clarify the regulatory definition of fill material by replacing two separate and inconsistent definitions with a single, common definition. It expanded the types of discharge activities that are subject to Section 404 specifically to include construction or maintenance of the infrastructure associated with solid waste landfills and mining overburden. Further, the revised rule removed regulatory language which previously excluded “waste” discharges from Section 404 jurisdiction, a change that some argue allows the use of 404 permits to authorize certain discharges that harm the aquatic environment.

The final rule completed a rulemaking begun in April 2000 by the Clinton Administration. Its proposal had generated support from the mining industry and other regulated groups, and considerable opposition from environmental groups. The final rule is substantially similar to the earlier proposal. Environmental groups say the rule allows for inadequate regulation of certain disposal activities, including disposal of coal mining waste. The Clinton and Bush Administrations said that the regulatory changes were intended to conform Corps and EPA regulations to existing lawful practice, but opponents contend that those practices violate the Clean Water Act. Legislation to reverse the revised regulations has been introduced in the 111th Congress (H.R. 1310, the Clean Water Protection Act). Similar legislation was introduced in previous Congresses. Separate legislation (S. 696, the Appalachia Restoration Act) that is intended to effect a narrower reversal of the 2002 rule also has been introduced in the 111th Congress. The Obama Administration’s views on these issues are unknown for now.

 [read report]

Topics: Water, Pollution, Waste Management