Order Code RL31411.
Controversies over Redefining “Fill Material”
Under the Clean Water Act
Updated August 21, 2008
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
March 17, 2009
Congressional Research Service
7-5700
www.crs.gov
RL31411
CRS Report for Congress
Prepared for Members and Committees of Congress
c11173008
.
Controversies over Redefining “Fill Material” Under the
Clean Water Act
Summary
On May 3, 2002, the Environmental Protection Agency (EPA) and the U.S.
Army Corps of
Engineers (the Corps) announced a final ruleregulation redefining two key
terms, “fill material” and
“discharge of fill material,” in regulationsrules that implement
Section 404 of the Clean Water Act. This
report discusses the revised2002 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
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
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 arewere 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 110th111th
Congress (H.R. 21691310, the Clean Water Protection Act). Similar legislation was
introduced in previous Congresses.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background — The Law and Prior Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Redefinition of Key Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Discharges Identified as Fill Material under the Redefinition . . . . . . . . . . . . . . . . 5
Controversies Concerning Coal Mining Overburden . . . . . . . . . . . . . . . . . . . . . . 6
Controversies over Redefining “Fill Material”
Under the Clean Water Act
Introduction
On May 3, 2002, the Environmental Protection Agency (EPA) and the U.S.
Army Corps of Engineers (the Corps) announced a final rule which redefined two key
terms, “fill material” and “discharge of fill material,” that identify the scope of
activities subject to regulation under Section 404 of the Clean Water Act.1
The 2002 final rule completed a rulemaking begun in April 2000 by the Clinton
Administration.2 Its proposal had generated support from the mining industry and
other regulated groups, and opposition from environmental groups. Their relative
positions in support and opposition did not change when the final rule was issued,
because it is substantially similar to the earlier proposal. The agencies received over
17,000 comments on the proposed rule.
The revised rule was specifically intended to clarify the regulatory definition of
fill material under Section 404 by replacing two separate and inconsistent definitions
with a single, common definition. In terms of the types of regulated filling activities,
it expanded the types of discharge activities that are subject to Section 404 permit
requirements 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 could harm the aquatic environment. This part of
the rule conforms with positions taken by the Clinton Administration and endorsed
by the Bush Administration in litigation brought by environmental groups which
challenged regulation of surface coal mining practices in Appalachia. The
Administration’s position supported industry’s view concerning the proper Clean
Water Act mechanism for regulating coal mining. However, that position was
opposed by environmental groups, who believe that disposal of coal mining and other
waste should be regulated more stringently under other provisions of the Clean Water
Act, not Section 404. Thus, at issue was whether the rule change was largely
procedural, as proponents argued, or whether it allowed weaker regulatory practices
to apply to coal mining, as opponents argued.
1
U.S. Department of the Army, Corps of Engineers, and Environmental Protection Agency,
“Final Revisions to the Clean Water Act Regulatory Definitions of ‘Fill Material” and
‘Discharge of Fill Material,’” 67 Federal Register No. 90, May 9, 2002, pp. 31129-31143.
2
U.S. Department of the Army, Corps of Engineers, and Environmental Protection Agency,
“Proposed Revisions to the Clean Water Act Regulatory Definitions of ‘Fill Material” and
‘Discharge of Fill Material,’” 65 Federal Register No. 77, April 20, 2000, pp. 21292-21300.
CRS-2
Background — The Law and Prior Regulations
Under the Clean Water Act (CWA), it is unlawful to discharge any pollutant
into waters of the United States without a permit issued under that act. The 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 waters3 of the United States at
specified sites. The NPDES permit program is administered by EPA. The Corps and
EPA have complementary roles under Section 404. Landowners seeking to discharge
dredged or fill material must obtain a permit to do so from the Corps. EPA provides
environmental guidance on Section 404 permitting and can veto a Corps permit,
based on environmental impacts of the proposed discharge activity.
The act’s two separate permit programs differ in nature and approach. The
NPDES program focuses primarily on the effects of discharges from industrial
facilities and municipal sewage treatment plants on water quality and evaluates
whether the discharge will adversely affect the chemical, physical, or biological
integrity of the water. Under that program, pollutant discharges are controlled
through the imposition of effluent limitations which restrict the quantities, rates, and
concentrations of discharged constituents. Section 402 permits include limitations
that reflect treatment with available pollution control technology, either to meet
national minimum standards established by EPA, or more stringent treatment levels
where needed to meet state-established water quality standards. The standard for
issuance of a 402 permit is compliance with the effluent limitation and toxic
pollutant control provisions of the act. EPA is authorized to issue NPDES permits;
the agency has delegated this responsibility to 45 states, and EPA is the permitting
authority in the remaining states.
The Section 404 program focuses on discharges of two materials: dredged
material and fill material. As described in the April 2000 proposal, “Fill material
differs fundamentally from the types of pollutants covered by section 402 because the
principal environmental concern is the loss of a portion of the water body itself.”4
In contrast to the NPDES program’s specific focus on water quality, the Section 404
program has a broader focus on effects of the discharge on the aquatic ecosystem as
a whole, including wetlands. It requires evaluation of alternatives to the discharge
and of measures to minimize and compensate for unavoidable adverse effects.
Discharges that would have significant adverse effects on aquatic ecosystems are not
allowed, and discharges also are not allowed if there are practicable alternatives with
less adverse effects on the aquatic ecosystem. The standard for issuance of a 404
permit is consideration of the full public interest by balancing the favorable impacts
3
“Navigable waters” means the waters of the United States, including the territorial seas.
CWA §502(7). “Waters of the United States” means those waters that are subject to the ebb
and flow of the tide and/or are presently used, or have been used in the past, or may be
susceptible to use to transport interstate or foreign commerce, including their tributaries,
adjacent wetlands, and isolated waters where the use, degradation or destruction of such
waters could affect interstate or foreign commerce. 33 CFR Part 328.
4
65 Federal Register 21293.
CRS-3
against the detrimental impacts of a proposed activity to reflect the national concerns
for both the protection and utilization of important resources.
The Corps and EPA have complementary roles and regulations for the Section
404 program. The Corps’ regulations (at 33 CFR Parts 320-330) describe general
regulatory policies, permit procedures and processing, and program definitions.
EPA’s regulations (at 40 CFR Parts 230-232) provide the environmental guidelines
for specifying disposal sites for dredged or fill material, procedures for a possible
EPA veto of a permit, and definitions.
Among the definitions of key terms contained both in the Corps’ and EPA’s
regulations are two closely related definitions, “fill material” and “discharge of fill
material.” Neither term is defined in the Clean Water Act, leaving it to the
administrative agencies to do so. Both the 404 and the NPDES programs regulate
the “discharge of a pollutant,” which the act defines as including, among others,
dredged spoil, solid waste, chemical wastes, biological materials, rock, sand, and
cellar dirt discharged into water.
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 subject to
NPDES permit requirements.5 EPA’s and the Corps’ definitions of “discharge of fill
material” previously were identical6 and remain so in the revised definitions to mean
“the addition of fill material into waters of the United States.” They list, by way of
example, activities typically related to construction for site development, roadways,
erosion protection, etc., where the filling in of a waterbody occurs as a necessary
element of the project. (40 CFR §232.2 and 33 CFR §323.2(f))
While the two agencies previously defined “discharge of fill material” in
identical terms, they had different regulatory definitions for the related term “fill
material.” The Corps’ definition, at 33 CFR §323.2(e), which was adopted in 1977,
stated:
The term “fill material” means any material used for the primary purpose of
replacing an aquatic area with dry land or of changing the bottom elevation of an
[sic] water body. The term does not include any pollutant discharged into the
5
CWA Section 404(f) exempts certain activities from 404 permit requirements. Most are
related to agricultural practices. These include normal farming, silviculture, and ranching
activities; maintenance of existing dikes, dams, levees, or causeways; construction or
maintenance of farm or stock ponds or irrigation ditches; construction of temporary
sedimentation basins on construction sites; and construction or maintenance of farm or
forest roads. Section 402 NPDES permits are not required for these discharges. Section
404(f) also exempts federal projects specifically authorized by Congress. However, these
activities may require other federal or state environmental permits, including under Section
402.
6
However, the Corps’ definition at 33 CFR §323.2(f) also included the statement that the
term does not include plowing, cultivating, seeding and harvesting for the production of
food, fiber, and forest products — activities which are part of the “normal farming”
exemption under Section 404(f).
CRS-4
water primarily to dispose of waste, as that activity is regulated under section 402
of the Clean Water Act.
While the Corps’ definition centered on evaluating what is the primary purpose of a
prospective discharge to determine whether it would be regulated by Section 404 or
Section 402, EPA’s definition, at 40 CFR §232.2, focused on the effect of the
material. The EPA definition had remained unchanged since it was adopted in 1988.
It stated:
Fill material means “any pollutant” which replaces portions of the “waters of the
United States” with dry land or which changes the bottom elevation of a water
body for any purpose.
Redefinition of Key Terms
A central purpose of changing the agencies’ rules was to conform the Corps’
purpose-based definition of “fill material” with EPA’s effects-based definition. This
change was widely supported in public comments on the proposed rule. In the
proposal and the final rule, the two agencies acknowledged that the different
definitions and the “primary purposes” basis of the Corps’ separate definition had
caused confusion for some time, and had led to extensive litigation, as well. For
example, the primary purpose test in the Corps’ definition appeared to require the
Corps to make a subjective determination about the primary purpose of a prospective
discharge, and it also allowed a project proponent to seek to affect which regulatory
regime would apply (Section 404 or Section 402) by simply asserting a purported
purpose. Thus, in the May 2002 revision, the agencies said that they were adopting
an identical definition of “fill material” that is more consistent with EPA’s previous
rule. It now states:
[T]he term fill material means material placed in waters of the United States
where the material has the effect of:
(i) Replacing any portion of a water of the United States with dry land; or
(ii) Changing the bottom elevation of any portion of a water of the United
States.
In addition, however, the revised definition of fill material eliminated language
contained in the Corps’ previous regulation which had excluded “any pollutant
discharged into the water primarily to dispose of waste” from Section 404
authorization. This change reflected the agencies’ view that an exclusion for all
waste is inappropriate, a view supported in industry comments but opposed by
environmental groups.
Simply because a material is disposed of for purposes of waste disposal does not,
in our view, justify excluding it categorically from the definition of fill. Some
waste (e.g., mine overburden) consists of material such as soil, rock and earth,
CRS-5
that is similar to “traditional” fill material used for purposes of creating fast land
for development.7
The agencies explained that, while trash or garbage discharges are “generally
excluded” from Section 404 because of environmental and health concerns, such
discharges may be permissible in some circumstances. “An example would be where
recycled porcelain fixtures are cleaned and placed in waters of the U.S. to create
environmentally beneficial artificial reefs. Such material would not be considered
trash or garbage and thus would not be subject to the exclusion.”8 EPA and the
Corps believe that this is appropriate, and even environmentally beneficial, in
situations where the otherwise excluded materials are being discharged in a manner
consistent with traditional uses of fill material and where the review of the discharges
under Section 404 can effectively ensure that the material will not cause or contribute
to adverse environmental impacts.
The final rule clarified the term “discharge of fill material” (previously identical
for both agencies) by adding two additional examples of 404-regulated activities
when these discharges have the effect of fill. First, it added “placement of fill
material for construction or maintenance of any liner, berm, or other infrastructure
associated with solid waste landfills” to distinguish fill material used for construction
of solid waste landfills from discharges of leachate from landfills into waters of the
U.S. which are subject to CWA Section 402. Second, the final rule’s language
concerning “mine overburden” expanded language in the 2000 proposal, which
specified “placement of coal mining overburden.” Based on comments that this
language created confusion concerning whether under the proposal overburden or
similar materials from other mining processes might not be covered, the agencies
amended the definition in the final rule to include “placement of overburden, slurry,
or tailings or similar mining-related materials.”
Discharges Identified as Fill Material under the
Redefinition
The agencies’ revised rules define certain types of discharges as specifically
outside of the requirements of Section 404 and, conversely, define others as
specifically subject to Section 404, thus not to Section 402.
First, as discussed above, the final rule narrowed the regulatory definition of fill
material: “The term fill material does not include trash or garbage.”
Second, the final rule included specific examples of materials that, according
to EPA and the Corps, often constitute fill and thus should be subject to Section 404
requirements, not Section 402. The agencies added the following new text as further
explanation of “fill material:”
7
67 Federal Register 31133.
8
67 Federal Register 31134.
CRS-6
Examples of such material include, but are not limited to: rock, sand, soil, clay,
plastics, construction debris, wood chips, overburden from mining or other
excavation activities, and materials used to create any structure or infrastructure
in the waters of the United States. (revised 33 CFR §323.2(e)(2) and revised 40
CFR §232.2(2))
In summary, EPA and the Corps did not de-list or remove from Section 404
coverage any of the types of construction-related activities previously defined as fill
material but did narrow it to exclude trash or garbage. They modified their
definitions by adding examples of several additional specific types of materials which
will be considered as fill material.
Controversies Concerning Coal Mining Overburden
The most controversial aspect of the final rule was elimination of the waste
exclusion previously contained in the Corps’ definition of fill material, coupled with
the specific inclusion of mining overburden to be regulated under Section 404. In
some parts of the country, particularly in Appalachia, waste material that results from
coal surface mining operations is deposited or discharged into waters of the United
States as part of the overall mining activity.9
Historically, the Corps has regulated this type of discharge as fill, on the basis
that such discharges result in the placement of rock and other material in such a way
as to replace portions of a water body with dry land.10 The Corps believes that this
existing practice is the most effective way to regulate activities associated with coal
mining which involve discharge of pollutants into waters of the United States.
However, some persons contend that the placement of such material is more a
polluting activity than a filling activity, since the characteristics and quantities of
material can alter the chemical, physical, or biological integrity of a waterbody, and
thus, they argue, should be regulated by EPA as waste under CWA Section 402.
This latter argument was made by plaintiffs in several lawsuits. The first was
brought in West Virginia in 1998 by a citizens group, the West Virginia Highlands
Conservancy, challenging regulation of “mountaintop removal” surface coal mining
practices in that state. Mountaintop mining involves removing large portions of a
mountain in order to expose coal seams and depositing the dirt and rock into nearby
valleys and streams. An October 1999 Opinion and Order by the U.S. District Court
in that case held, in dicta, that the “primary purpose” of the mountaintop mining
9
For additional information, see CRS Report RS21421, Mountaintop Mining: Background
on Current Controversies, by Claudia Copeland.
10
The Corps authorizes dredged and fill activities either through individual permits for
environmentally significant projects or through nationwide general permits covering
categories of activities that are similar in nature and will likely have a minor effect on the
environment. Surface mining activities are generally authorized by one of these general
permits, nationwide permit 21. For additional information, see CRS Report 97-223, The
Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory
Developments.
CRS-7
refuse discharge is waste disposal, which is subject to Section 402, and, therefore,
that the Corps lacks authority to regulate mountaintop removal under Section 404
(Bragg v. Robertson, 72 F.Supp. 2d 642 (S.D.W.Va. 1999)). In appealing the ruling,
industry groups and labor unions said the court decision threatened the economy in
West Virginia, because more stringent regulation would render mountaintop mining
infeasible, while environmental and citizen groups supported the decision and argued
that it should be upheld.
Following the district court’s ruling, the Clinton Administration sided with the
industry in disagreeing with the court’s finding that mountaintop mining must be
regulated as waste under CWA Section 402, but it concurred with the court’s related
finding, supported by environmentalists, that the activity violates stream buffer zone
requirements under the Surface Mining Control and Reclamation Act. On appeal, the
4th U.S. Circuit Court of Appeals vacated the ruling, but did so on grounds of
jurisdiction and state sovereignty, not the merits of the case. The court held that the
regulation at issue was, in fact, a matter of state law, not federal law and, thus, the
case should not have been brought in federal court (Bragg v. Robertson, 248 F.3d
275 (CA4 2001)). In January 2002, the Supreme Court declined to review the 4th
Circuit’s decision.
Other legal challenges to mountaintop mining practices have occurred. A
second lawsuit was brought challenging issuance of a permit under the Corps’
nationwide permit program for a mountaintop mining operation in Martin County,
Kentucky. In May 2002, the same U.S. District Court judge who issued the 1999
ruling in the West Virginia case issued a similar ruling in the Kentucky mountaintop
mining case, holding that Section 404 does not allow filling waters of the U.S. solely
for waste disposal and that agency rulemaking or permit approval that holds
otherwise is beyond agency authority. “Only the United States Congress can rewrite
the Act to allow fills with no purpose or use but the deposit of waste,” the court
stated.11 The court permanently enjoined the Corps from issuing Section 404 permits
for the disposal of mountaintop mining overburden where the sole purpose is to
dispose of waste. The government appealed the district court ruling, arguing that the
court erred as a matter of law in holding that the Corps lacks authority under the
CWA to regulate discharge of surface mining overburden as fill material into waters
of the United States. In January 2003, a federal appeals court overruled the district
court’s action and lifted the injunction prohibiting the Corps from issuing Section
404 permits for disposal of mountaintop mining waste (Kentuckians for the
Commonwealth v. Rivenburgh, 317 F.3d 425 (CA4 2003)).
The Clinton Administration’s position in the Bragg litigation was that the most
appropriate and effective regulation of coal mining refuse, consistent with existing
practice, is as fill under Section 404. Thus, the April 2000 proposal to amend EPA’s
and the Corps’ regulations to include coal mining overburden in the definition of
“discharge of fill material” was intended to conform those regulations with the
historical practice, which both the Clinton and Bush Administrations believe is
11
Kentuckians for the Commonwealth v. Corps of Engineers, 204 F.Supp. 927, 929 (S.D.
W.Va. 2002).
CRS-8
lawful, and the Administrations’ position in that lawsuit.12 EPA’s and the Corps’
justification of the revised rule is that the changes are necessary to conform the
agencies’ rules and to bring those rules in line with current practice, i.e., of treating
mining overburden as fill to be regulated under Section 404.
The coal mining industry supports the practice of regulating mountaintop
mining discharges under Section 404 and thus supported the redefinition. Industry
groups such as the National Mining Association contend that Section 404 is the
appropriate regulatory mechanism for addressing activities that convert waters to dry
land, but requiring Section 402 permits would effectively prohibit a broad range of
mining activities which have been allowed by longstanding current practice. As
described above, the types of materials associated with surface mining activities (e.g.,
rock and sand) are defined in the Clean Water Act as pollutants when discharged into
U.S. waters. If such materials are subject to the act’s Section 402 NPDES
requirements, they are evaluated on the basis of whether they alter the chemical,
physical, or biological integrity of the water. That standard is more stringent than
evaluation under Section 404, which authorizes permits for fill discharges for
constructive or useful purposes.
Environmental groups strongly criticized the agencies’ regulatory action to
define coal mining overburden and other waste material as fill material. More
generally, the environmental community opposed any proposal to allow additional
discharges of waste into any waters of the United States.13 Thus, environmentalists
opposed eliminating language in the Corps’ previous regulation which had excluded
waste discharges from Section 404. They argued that the prior waste exclusion
language in 33 CFR §323.2(e) correctly barred the Corps from issuing a 404 permit
for waste disposal activities. Eliminating the waste exclusion, in their view, blurs the
distinction between authority to regulate discharges for waste disposal (given to EPA
under Section 402) and authority to regulate discharges of dredged or fill material
(given to the Corps under Section 404). According to these groups, the changes
contained in the May 2002 final rule codify a practice which is contrary to the Clean
Water Act.14 They contend that under the revised definition, the Corps has the
discretion to interpret the term “fill” broadly and to authorize any waste discharges
— including those detailed in the final rule and others, such as coal ash refuse — so
long as the effect of the discharge is to convert waters of the United States to dry land
or change the bottom elevation, but irrespective of the impact on water quality or
possible destruction of the waterbody.
One analyst observed that the result of the 2002 rule revisions was to change the
baseline of what is regulated by the 404 program, compared with the NPDES
program. Under the Corps’ previous regulation, the disposal of waste was solely
subject to Section 402. Now, where the waste has the effect of fill, the government
12
Frampton, George T., Jr., Acting Chair, Council on Environmental Quality, letter to The
Honorable Christopher Shays, April 18, 2000, 2 p.
13
“Activists Fear Broad Water Impact of New Wetlands ‘Fill’ Definition,” Inside E.P.A.
Weekly Report, Vol. 21, no. 16, April 21, 2000, pp. 1, 12-13.
14
“EPA, Army Corps Sign Final Rule Refining Definition of Fill; Senate Hearing
Expected,” Daily Environment Report, No. 87, May 6, 2002, p. A-11.
CRS-9
believes that regulation under Section 404 is appropriate. Thus, fill material now
defines the extent of the NPDES program, because only pollutants subject to effluent
limitations are excluded from regulation as fill. According to this view, the Section
404 permitting program has been expanded at the expense of EPA’s NPDES
program.15
Some congressional interest in these issues has been evident. Members of
Congress criticized the April 2000 proposal by the Clinton Administration, and
House and Senate Members also requested that the Bush Administration delay the
final rule until Congress could review it.16 On June 6, 2002, following issuance of
the revised regulations by the Corps and EPA, the Senate Environment and Public
Works Committee held an oversight hearing to examine the rule, receiving testimony
from Administration, mining industry, and public witnesses.17 Legislation intended
to reverse the revised regulations has been introduced in the 110th Congress (H.R.
2169, the Clean Water Protection Act). It would add a definition of “fill material”
to the Clean Water Act similar to EPA’s regulatory definition that was in effect
before 2002 (see page 4), plus a statement that the term does not include “any
pollutant discharged into the water primarily to dispose of waste.” Similar legislation
was introduced in the 107th, 108th, and 109th Congresses, but no further action
occurred.
15
Browand, Nathaniel, “Shifting the Boundary Between the Sections 402 and 404
Permitting Programs by Expanding the Definition of Fill Material,” Boston College
Environmental Affairs Law Review, Vol. 31, no. 3, fall 2003, pp. 617, 645-648.
16
“Delay Urged in Effort to Revise Definition of Fill Pending Senate Review, Letter Says,”
Daily Environment Report, No. 86, May 3, 2002, p. A-2.
17
U.S. Congress, Senate, Committee on Environment and Public Works, Subcommittee on
Clean Air, Wetlands, and Climate Change, Clean Water Act: Review of Proposed Revisions
to Section 404 Definitions of “Fill” and “Dredged Fill,” Hearing, 107th Congress, 2d
Session, June 6, 2002 (S. Hrg. 107-1000), 225 p.
previous Congresses. The Obama Administration’s views on these issues are unknown for now.
Congressional Research Service
.
Controversies over Redefining “Fill Material” Under the Clean Water Act
Contents
Introduction ................................................................................................................................1
Background—The Law and Prior Regulations.............................................................................1
Redefinition of Key Terms ..........................................................................................................3
Discharges Identified as Fill Material under the Redefinition.......................................................5
Controversies Concerning Coal Mining Overburden....................................................................5
Contacts
Author Contact Information ........................................................................................................8
Congressional Research Service
.
Controversies over Redefining “Fill Material” Under the Clean Water Act
Introduction
On May 3, 2002, the Environmental Protection Agency (EPA) and the U.S. Army Corps of
Engineers (the Corps) announced a regulation which redefined two key terms, “fill material” and
“discharge of fill material,” that identify the scope of activities subject to regulation under Section
404 of the Clean Water Act. 1
The 2002 final rule completed a rulemaking begun in April 2000 by the Clinton Administration.2
Its proposal had generated support from the mining industry and other regulated groups, and
opposition from environmental groups. Their relative positions in support and opposition did not
change when the final rule was issued, because it is substantially similar to the earlier proposal.
The agencies received over 17,000 comments on the proposed rule.
The revised rule was specifically intended to clarify the regulatory definition of fill material under
Section 404 by replacing two separate and inconsistent definitions with a single, common
definition. In terms of the types of regulated filling activities, it expanded the types of discharge
activities that are subject to Section 404 permit requirements 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 could harm the aquatic environment. This part of the rule
conforms with positions taken by the Clinton Administration and endorsed by the Bush
Administration in litigation brought by environmental groups which challenged regulation of
surface coal mining practices in Appalachia. The Administration’s position supported industry’s
view concerning the proper Clean Water Act mechanism for regulating coal mining. However,
that position was opposed by environmental groups, who believe that disposal of coal mining and
other waste should be regulated more stringently under other provisions of the Clean Water Act,
not Section 404. Thus, at issue was whether the rule change was largely procedural, as proponents
argued, or whether it allowed weaker regulatory practices to apply to coal mining, as opponents
argued.
Background—The Law and Prior Regulations
Under the Clean Water Act (CWA), it is unlawful to discharge any pollutant into waters of the
United States without a permit issued in accordance with that act. The CWA 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 waters3 of
1
U.S. Department of the Army, Corps of Engineers, and Environmental Protection Agency, “Final Revisions to the
Clean Water Act Regulatory Definitions of ‘Fill Material” and ‘Discharge of Fill Material,’” 67 Federal Register No.
90, May 9, 2002, pp. 31129-31143.
2
U.S. Department of the Army, Corps of Engineers, and Environmental Protection Agency, “Proposed Revisions to the
Clean Water Act Regulatory Definitions of ‘Fill Material” and ‘Discharge of Fill Material,’” 65 Federal Register No.
77, April 20, 2000, pp. 21292-21300.
3
“Navigable waters” means the waters of the United States, including the territorial seas. CWA §502(7). “Waters of
the United States” means those waters that are subject to the ebb and flow of the tide and/or are presently used, or have
been used in the past, or may be susceptible to use to transport interstate or foreign commerce, including their
(continued...)
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the United States at specified sites. The NPDES permit program is administered by EPA. The
Corps and EPA have complementary roles under Section 404. Landowners seeking to discharge
dredged or fill material must obtain a permit to do so from the Corps. EPA provides
environmental guidance on Section 404 permitting and can veto a Corps permit, based on
environmental impacts of the proposed discharge activity.
The act’s two separate permit programs differ in nature and approach. The NPDES program
focuses primarily on the effects of discharges from industrial facilities and municipal sewage
treatment plants on water quality and evaluates whether the discharge will adversely affect the
chemical, physical, or biological integrity of the water. Under that program, pollutant discharges
are controlled through the imposition of effluent limitations which restrict the quantities, rates,
and concentrations of discharged constituents. Section 402 permits include limitations that reflect
treatment with available pollution control technology, either to meet national minimum standards
established by EPA, or more stringent treatment levels where needed to meet state-established
water quality standards. The standard for issuance of a 402 permit is compliance with the effluent
limitation and toxic pollutant control provisions of the act. EPA is authorized to issue NPDES
permits; the agency has delegated this responsibility to 45 states, and EPA is the permitting
authority in the remaining states.
The Section 404 program focuses on discharges of two materials: dredged material and fill
material. As described in the April 2000 proposal, “Fill material differs fundamentally from the
types of pollutants covered by section 402 because the principal environmental concern is the loss
of a portion of the water body itself.”4 In contrast to the NPDES program’s specific focus on
water quality, the Section 404 program has a broader focus on effects of the discharge on the
aquatic ecosystem as a whole, including wetlands. It requires evaluation of alternatives to the
discharge and of measures to minimize and compensate for unavoidable adverse effects.
Discharges that would have significant adverse effects on aquatic ecosystems are not allowed,
and discharges also are not allowed if there are practicable alternatives with less adverse effects
on the aquatic ecosystem. The standard for issuance of a 404 permit is consideration of the full
public interest by balancing the favorable impacts against the detrimental impacts of a proposed
activity to reflect the national concerns for both the protection and utilization of important
resources.
The Corps and EPA have complementary roles and regulations for the Section 404 program. The
Corps’ regulations (at 33 CFR Parts 320-330) describe general regulatory policies, permit
procedures and processing, and program definitions. EPA’s regulations (at 40 CFR Parts 230-232)
provide the environmental guidelines for specifying disposal sites for dredged or fill material,
procedures for a possible EPA veto of a permit, and definitions.
Among the definitions of key terms contained both in the Corps’ and EPA’s regulations are two
closely related definitions, “fill material” and “discharge of fill material.” Neither term is defined
in the Clean Water Act, leaving it to the administrative agencies to do so. Both the 404 and the
NPDES programs regulate the “discharge of a pollutant,” which the act defines as including,
(...continued)
tributaries, adjacent wetlands, and isolated waters where the use, degradation or destruction of such waters could affect
interstate or foreign commerce. 33 CFR Part 328.
4
65 Federal Register 21293.
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Controversies over Redefining “Fill Material” Under the Clean Water Act
among others, dredged spoil, solid waste, chemical wastes, biological materials, rock, sand, and
cellar dirt discharged into water.
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 subject to NPDES permit
requirements. 5 EPA’s and the Corps’ definitions of “discharge of fill material” previously were
identical6 and remain so in the revised definitions to mean “the addition of fill material into
waters of the United States.” They list, by way of example, activities typically related to
construction for site development, roadways, erosion protection, etc., where the filling in of a
waterbody occurs as a necessary element of the project. (40 CFR §232.2 and 33 CFR §323.2(f))
While before 2002 the two agencies defined “discharge of fill material” in identical terms, they
had different regulatory definitions for the related term “fill material.” The Corps’ definition, at
33 CFR §323.2(e), which was adopted in 1977, stated:
The term “fill material” means any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom elevation of an [sic] water body. The
term does not include any pollutant discharged into the water primarily to dispose of waste,
as that activity is regulated under section 402 of the Clean Water Act.
While the Corps’ definition centered on evaluating what is the primary purpose of a prospective
discharge to determine whether it would be regulated by Section 404 or Section 402, EPA’s
definition, at 40 CFR §232.2, focused on the effect of the material. EPA’s definition had remained
unchanged since it was adopted in 1988. It stated:
Fill material means “any pollutant” which replaces portions of the “waters of the United
States” with dry land or which changes the bottom elevation of a water body for any
purpose.
Redefinition of Key Terms
A central purpose of changing the agencies’ rules was to conform the Corps’ purpose-based
definition of “fill material” with EPA’s effects-based definition. This change was widely
supported in public comments on the proposed rule. In the proposal and the final rule, the two
agencies acknowledged that the different definitions and the “primary purposes” basis of the
Corps’ separate definition had caused confusion for some time, and had led to extensive litigation,
as well. For example, the primary purpose test in the Corps’ definition appeared to require the
Corps to make a subjective determination about the primary purpose of a prospective discharge,
and it also allowed a project proponent to seek to affect which regulatory regime would apply
5
CWA Section 404(f) exempts certain activities from 404 permit requirements. Most are related to agricultural
practices. These include normal farming, silviculture, and ranching activities; maintenance of existing dikes, dams,
levees, or causeways; construction or maintenance of farm or stock ponds or irrigation ditches; construction of
temporary sedimentation basins on construction sites; and construction or maintenance of farm or forest roads. Section
402 NPDES permits are not required for these discharges. Section 404(f) also exempts federal projects specifically
authorized by Congress. However, these activities may require other federal or state environmental permits, including
under Section 402.
6
However, the Corps’ definition at 33 CFR §323.2(f) also included the statement that the term does not include
plowing, cultivating, seeding and harvesting for the production of food, fiber, and forest products—activities which are
part of the “normal farming” exemption under Section 404(f).
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Controversies over Redefining “Fill Material” Under the Clean Water Act
(Section 404 or Section 402) by simply asserting a purported purpose. Thus, in the May 2002
revision, the agencies said that they were adopting an identical definition of “fill material” that is
more consistent with EPA’s previous rule. It now states:
[T]he term fill material means material placed in waters of the United States where the
material has the effect of:
(i) Replacing any portion of a water of the United States with dry land; or
(ii) Changing the bottom elevation of any portion of a water of the United States.
In addition, however, the 2002 revised definition of fill material eliminated language contained in
the Corps’ previous regulation which had excluded “any pollutant discharged into the water
primarily to dispose of waste” from Section 404 authorization. This change reflected the
agencies’ view that an exclusion for all waste is inappropriate, a view supported in industry
comments but opposed by environmental groups.
Simply because a material is disposed of for purposes of waste disposal does not, in our
view, justify excluding it categorically from the definition of fill. Some waste (e.g., mine
overburden) consists of material such as soil, rock and earth, that is similar to “traditional”
fill material used for purposes of creating fast land for development.7
The agencies explained that, while trash or garbage discharges are “generally excluded” from
Section 404 because of environmental and health concerns, such discharges may be permissible
in some circumstances. “An example would be where recycled porcelain fixtures are cleaned and
placed in waters of the U.S. to create environmentally beneficial artificial reefs. Such material
would not be considered trash or garbage and thus would not be subject to the exclusion.”8 EPA
and the Corps believe that this is appropriate, and even environmentally beneficial, in situations
where the otherwise excluded materials are being discharged in a manner consistent with
traditional uses of fill material and where the review of the discharges under Section 404 can
effectively ensure that the material will not cause or contribute to adverse environmental impacts.
The final rule clarified the term “discharge of fill material” (previously identical for both
agencies) by adding two additional examples of 404-regulated activities when these discharges
have the effect of fill. First, it added “placement of fill material for construction or maintenance
of any liner, berm, or other infrastructure associated with solid waste landfills” to distinguish fill
material used for construction of solid waste landfills from discharges of leachate from landfills
into waters of the U.S. which are subject to CWA Section 402. Second, the final rule’s language
concerning “mine overburden” expanded language in the 2000 proposal, which specified
“placement of coal mining overburden.” Based on comments that this language created confusion
concerning whether under the proposal overburden or similar materials from other mining
processes might not be covered, the agencies amended the definition in the final rule to include
“placement of overburden, slurry, or tailings or similar mining-related materials.”
7
8
67 Federal Register 31133.
67 Federal Register 31134.
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Controversies over Redefining “Fill Material” Under the Clean Water Act
Discharges Identified as Fill Material under the
Redefinition
The agencies’ revised rules define certain types of discharges as specifically outside of the
requirements of Section 404 and, conversely, define others as specifically subject to Section 404,
thus not to Section 402.
First, as discussed above, the final rule narrowed the regulatory definition of fill material: “The
term fill material does not include trash or garbage.”
Second, the final rule included specific examples of materials that, according to EPA and the
Corps, often constitute fill and thus should be subject to Section 404 requirements, not Section
402. The agencies added the following new text as further explanation of “fill material:”
Examples of such material include, but are not limited to: rock, sand, soil, clay, plastics,
construction debris, wood chips, overburden from mining or other excavation activities, and
materials used to create any structure or infrastructure in the waters of the United States.
(revised 33 CFR §323.2(e)(2) and revised 40 CFR §232.2(2))
In summary, EPA and the Corps did not de-list or remove from Section 404 coverage any of the
types of construction-related activities previously defined as fill material but did narrow it to
exclude trash or garbage. They modified their definitions by adding examples of several
additional specific types of materials which will be considered as fill material, and thus are
subject to Section 404 permitting.
Controversies Concerning Coal Mining Overburden
The most controversial aspect of the final rule was elimination of the waste exclusion previously
contained in the Corps’ definition of fill material, coupled with the specific inclusion of mining
overburden to be regulated under Section 404. In some parts of the country, particularly in
Appalachia, waste material that results from coal surface mining operations is deposited or
discharged into waters of the United States as part of the overall mining activity. 9
Historically, the Corps has regulated this type of discharge as fill, on the basis that such
discharges result in the placement of rock and other material in such a way as to replace portions
of a water body with dry land. 10 The Corps believes that this practice is the most effective way to
regulate activities associated with coal mining which involve discharge of pollutants into waters
of the United States. However, some persons contend that the placement of such material is more
9
For additional information, see CRS Report RS21421, Mountaintop Mining: Background on Current Controversies,
by Claudia Copeland.
10
The Corps authorizes dredged and fill activities either through individual permits for environmentally significant
projects or through nationwide general permits covering categories of activities that are similar in nature and will likely
have a minor effect on the environment. Surface mining activities are generally authorized by one of these general
permits, nationwide permit 21, “Surface Coal Mining Operations.” For additional information, see CRS Report 97-223,
The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory Developments, by Claudia
Copeland.
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Controversies over Redefining “Fill Material” Under the Clean Water Act
a polluting activity than a filling activity, since the characteristics and quantities of material can
alter the chemical, physical, or biological integrity of a waterbody, and thus, they argue, should be
regulated by EPA as waste under CWA Section 402.
This latter argument was made by plaintiffs in several lawsuits. The first was brought in West
Virginia in 1998 by a citizens group, the West Virginia Highlands Conservancy, challenging
regulation of “mountaintop removal” surface coal mining practices in that state. Mountaintop
mining involves removing large portions of a mountain in order to expose coal seams and
depositing the dirt and rock into nearby valleys and streams. An October 1999 Opinion and Order
by the U.S. District Court in that case held, in dicta, that the “primary purpose” of the
mountaintop mining refuse discharge is waste disposal, which is subject to Section 402, and,
therefore, that the Corps lacks authority to regulate mountaintop removal under Section 404.11 In
appealing the ruling, industry groups and labor unions said the court decision threatened the
economy in West Virginia, because more stringent regulation would render mountaintop mining
infeasible, while environmental and citizen groups supported the decision and argued that it
should be upheld.
Following the district court’s ruling, the Clinton Administration sided with the industry in
disagreeing with the court’s finding that mountaintop mining must be regulated as waste under
CWA Section 402, but it concurred with the court’s related finding, supported by
environmentalists, that the activity violates stream buffer zone requirements under the Surface
Mining Control and Reclamation Act. On appeal, the 4th U.S. Circuit Court of Appeals vacated
the ruling, but did so on grounds of jurisdiction and state sovereignty, not the merits of the case.
The court held that the regulation at issue was, in fact, a matter of state law, not federal law and,
thus, the case should not have been brought in federal court.12 In January 2002, the Supreme
Court declined to review the 4th Circuit’s decision.
Other legal challenges to mountaintop mining practices have occurred. A second lawsuit was
brought challenging issuance of a permit under the Corps’ nationwide permit program for a
mountaintop mining operation in Martin County, Kentucky. In May 2002, the same U.S. District
Court judge who issued the 1999 ruling in the West Virginia case issued a similar ruling in the
Kentucky mountaintop mining case, holding that Section 404 does not allow filling waters of the
U.S. solely for waste disposal and that agency rulemaking or permit approval that holds otherwise
is beyond agency authority. “Only the United States Congress can rewrite the Act to allow fills
with no purpose or use but the deposit of waste,” the court stated. 13 The court permanently
enjoined the Corps from issuing Section 404 permits for the disposal of mountaintop mining
overburden where the sole purpose is to dispose of waste. The government appealed the district
court ruling, arguing that the court erred as a matter of law in holding that the Corps lacks
authority under the CWA to regulate discharge of surface mining overburden as fill material into
waters of the United States. In January 2003, a federal appeals court overruled the district court’s
action and lifted the injunction prohibiting the Corps from issuing Section 404 permits for
disposal of mountaintop mining waste. 14
11
Bragg v. Robertson, 72 F.Supp. 2d 642 (S.D.W.Va. 1999).
Bragg v. Robertson, 248 F.3d 275 (CA4 2001)
13
Kentuckians for the Commonwealth v. Corps of Engineers, 204 F.Supp. 927, 929 (S.D. W.Va. 2002).
14
Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (CA4 2003).
12
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The Clinton Administration’s position in the Bragg litigation was that the most appropriate and
effective regulation of coal mining refuse, consistent with existing practice, is as fill under
Section 404. Thus, the April 2000 proposal to amend EPA’s and the Corps’ regulations to include
coal mining overburden in the definition of “discharge of fill material” was intended to conform
those regulations with the historical practice, which both the Clinton and Bush Administrations
believe is lawful, and the Administrations’ position in that lawsuit.15 EPA’s and the Corps’
justification of the revised rule was that the changes are necessary to conform the agencies’ rules
and to bring those rules in line with current practice, i.e., of treating mining overburden as fill to
be regulated under Section 404.
The coal mining industry supports the practice of regulating mountaintop mining discharges
under Section 404 and thus supported the redefinition. Industry groups such as the National
Mining Association contend that Section 404 is the appropriate regulatory mechanism for
addressing activities that convert waters to dry land, but requiring Section 402 permits would
effectively prohibit a broad range of mining activities which have been allowed by longstanding
current practice. As described above, the types of materials associated with surface mining
activities (e.g., rock and sand) are defined in the Clean Water Act as pollutants when discharged
into U.S. waters. If such materials are subject to the act’s Section 402 NPDES requirements, they
are evaluated on the basis of whether they alter the chemical, physical, or biological integrity of
the water. That standard is more stringent than evaluation under Section 404, which authorizes
permits for fill discharges for constructive or useful purposes.
Environmental groups strongly criticized the agencies’ regulatory action to define coal mining
overburden and other waste material as fill material. More generally, the environmental
community opposed any proposal to allow additional discharges of waste into any waters of the
United States.16 Thus, environmentalists opposed eliminating language in the Corps’ previous
regulation which had excluded waste discharges from Section 404. They argued that the prior
waste exclusion language in 33 CFR §323.2(e) correctly barred the Corps from issuing a 404
permit for waste disposal activities. Eliminating the waste exclusion, in their view, blurs the
distinction between authority to regulate discharges for waste disposal (given to EPA under
Section 402) and authority to regulate discharges of dredged or fill material (given to the Corps
under Section 404). According to these groups, the changes contained in the May 2002 final rule
codify a practice which is contrary to the Clean Water Act. 17 They contend that under the revised
definition, the Corps has the discretion to interpret the term “fill” broadly and to authorize any
waste discharges—including those detailed in the final rule and others, such as coal ash refuse—
so long as the effect of the discharge is to convert waters of the United States to dry land or
change the bottom elevation, but irrespective of the impact on water quality or possible
destruction of the waterbody.
One analyst observed that the result of the 2002 rule revisions was to change the baseline of what
is regulated by the 404 program, compared with the NPDES program. Under the Corps’ previous
regulation, the disposal of waste was solely subject to Section 402. Now, where the waste has the
15
Frampton, George T., Jr., Acting Chair, Council on Environmental Quality, letter to The Honorable Christopher
Shays, April 18, 2000, 2 p.
16
“Activists Fear Broad Water Impact of New Wetlands ‘Fill’ Definition,” Inside E.P.A. Weekly Report, Vol. 21, no.
16, April 21, 2000, pp. 1, 12-13.
17
“EPA, Army Corps Sign Final Rule Refining Definition of Fill; Senate Hearing Expected,” Daily Environment
Report, No. 87, May 6, 2002, p. A-11.
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Controversies over Redefining “Fill Material” Under the Clean Water Act
effect of fill, the government believes that regulation under Section 404 is appropriate. Thus, fill
material now defines the extent of the NPDES program, because only pollutants subject to
effluent limitations are excluded from regulation as fill. According to this view, the Section 404
permitting program has been expanded at the expense of EPA’s NPDES program.18
Some congressional interest in these issues has been evident. Members of Congress criticized the
April 2000 proposal by the Clinton Administration, and House and Senate Members also
requested that the Bush Administration delay the final rule until Congress could review it.19 On
June 6, 2002, following issuance of the revised regulations by the Corps and EPA, the Senate
Environment and Public Works Committee held an oversight hearing to examine the rule,
receiving testimony from Administration, mining industry, and public witnesses. 20
Legislation intended to reverse the revised regulations has been introduced in the 111th Congress
(H.R. 1310, the Clean Water Protection Act). It would add a definition of “fill material” to the
Clean Water Act similar to EPA’s regulatory definition that was in effect before 2002 (see page 4,
in “Redefinition of Key Terms”), plus a statement that the term does not include “any pollutant
discharged into the water primarily to dispose of waste.” Similar legislation was introduced in
each Congress since the 107th, but no further action occurred.
The Obama Administration is reportedly reviewing regulations that govern mining under the
Clean Water Act and other laws,21 but officials’ specific views on the 2002 fill material rule are
unknown for now.
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
18
Browand, Nathaniel, “Shifting the Boundary Between the Sections 402 and 404 Permitting Programs by Expanding
the Definition of Fill Material,” Boston College Environmental Affairs Law Review, Vol. 31, no. 3, fall 2003, pp. 617,
645-648.
19
“Delay Urged in Effort to Revise Definition of Fill Pending Senate Review, Letter Says,” Daily Environment Report,
No. 86, May 3, 2002, p. A-2.
20
U.S. Congress, Senate, Committee on Environment and Public Works, Subcommittee on Clean Air, Wetlands, and
Climate Change, Clean Water Act: Review of Proposed Revisions to Section 404 Definitions of “Fill” and “Dredged
Fill,” Hearing, 107th Congress, 2d Session, June 6, 2002 (S. Hrg. 107-1000), 225 p.
21
“Fearing Ruling’s Effect, Activists Seek Quick EPA Review of Coal Mining Rule,” InsideEPA.com, March 16, 2009.
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