Controversies over Redefining “Fill Material”
Under the Clean Water Act
Claudia Copeland
Specialist in Resources and Environmental Policy
July 15, 2014
Congressional Research Service
7-5700
www.crs.gov
RL31411
Controversies over Redefining “Fill Material” Under the Clean Water Act
Summary
In May 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 113th Congress (H.R.
1837, the Clean Water Protection Act). Similar legislation was introduced in previous Congresses.
Legislation also has been introduced in the 113th Congress to codify the current regulatory
definition of fill material in the CWA (H.R. 5077). The Consolidated Appropriations Act, 2014
(H.R. 3547/P.L. 113-76) includes a provision barring the Corps from developing or implementing
revised regulations concerning definitions of “fill material” or “discharge of fill material,”
although the Corps has not indicated intention to do so. A similar provision is included in H.R.
4923, FY2015 Energy and Water Development Appropriations Act. The Obama Administration’s
views on the 2002 fill material rule and recent legislation are unknown for now.
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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
Congressional Interest...................................................................................................................... 8
Contacts
Author Contact Information........................................................................................................... 10
Congressional Research Service
Controversies over Redefining “Fill Material” Under the Clean Water Act
Introduction
In May 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 certain 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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Controversies over Redefining “Fill Material” Under the Clean Water Act
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
the phrase “placement of overburden, slurry, or tailings or similar mining-related materials” in the
regulatory definition.
7 67 Federal Register 31133.
8 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 dredge 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. Nationwide permits are intended to provide a streamlined permitting process,
compared with individual permits. 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 has been 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 stated, 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.
Subsequently, environmental groups filed legal challenges to several other individually permitted
mountaintop removal permits. A federal district court granted judgment in favor of the plaintiffs
in 2007, rescinding the permits at issue, and remanding the permits to the Corps for further
proceedings. The district court found that the probable impacts of the valley fills would be
significant and adverse under both the CWA and the National Environmental Policy Act and that
the Corps had inadequately evaluated the cumulative impacts of the projects. However, in 2009,
the 4th Circuit Court of Appeals reviewed the lower court’s ruling and found that the Corps had
acted properly within the scope of its authority in determining the necessary scope of analysis in
reviewing the permits and assessing the cumulative impacts of the proposed valley fills. The
appeals court reversed and vacated the district court’s opinion and order and injunction against
the Corps, thus allowing the Corps to issue permits for mountain removal mining without
requiring more extensive environmental review.13 Environmental groups have continued to pursue
lawsuits to halt or restrict mountaintop mining operations in Appalachia.
Other legal challenges to mountaintop mining practices have occurred, including challenges to
mountaintop mining operations authorized by the Corps under its nationwide general permit
program, specifically nationwide permit 21 (in contrast to individual permits challenged in the
11 Bragg v. Robertson, 72 F.Supp. 2d 642 (S.D.W.Va. 1999).
12 Bragg v. Robertson, 248 F.3d 275 (CA4 2001).
13 Ohio Valley Environmental Coalition et al. v. Aracoma Coal Company et al. and the U.S. Army Corps of Engineers,
556 F.3d 177 (CA4 2009).
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Controversies over Redefining “Fill Material” Under the Clean Water Act
proceedings described above). In several different cases, environmental groups have argued that
the impact of valley fills under nationwide permit 21 (NWP 21) violates the CWA, which
authorizes general permits only for activities that individually and cumulatively will cause only
minimal adverse environmental effect. Federal district courts have ruled in support of the
plaintiffs in several of these cases, but the rulings have subsequently been reversed on appeal.
As part of Administration efforts to strengthen regulatory controls over surface mining activities
in Appalachia,14 in 2010, the Corps suspended use of NWP 21 in the Appalachian region. In
March 2012, the Corps reissued all of the existing nationwide permits, with modification of a
number of them, including NWP 21. The previous version of NWP 21, issued in 2007, did not
have any acreage or linear foot limits and relied on permit conditions and pre-construction
notification reviews to reduce adverse impacts on the aquatic environment. The Corps determined
that this approach has not adequately protected against loss of aquatic resources; thus the reissued
permit adds a ½-acre and 300-linear foot limit for the loss of stream beds when NWP 21 is used.
Further, the reissued permit strictly prohibits use of NWP 21 to authorize discharges of dredged
or fill material into U.S. waters to construct valley fills associated with surface coal mining.
Projects no longer eligible under NWP 21 may seek authorization under a Section 404 individual
permit, which can be issued for longer periods of time than a nationwide permit. The effective
date of the reissued NWPs is March 19, 2012; they will expire on March 18, 2017.15
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
contended is lawful, and the Administrations’ position in that lawsuit.16 EPA’s and the Corps’
justification of the revised rule was that the changes were necessary to conform the agencies’
rules and to bring those rules in line with long-standing 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 long-standing
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.
14 See CRS Report RS21421, Mountaintop Mining: Background on Current Controversies, by Claudia Copeland.
15 See CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory
Developments, by Claudia Copeland.
16 Frampton, George T., Jr., Acting Chair, Council on Environmental Quality, letter to The Honorable Christopher
Shays, April 18, 2000, 2 p.
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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.17 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
codified a practice which is contrary to the Clean Water Act.18 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 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.19
Congressional Interest
Some congressional interest in these issues has been evident. Some Members of Congress
criticized the April 2000 proposal by the Clinton Administration, and several House and Senate
Members also requested that the Bush Administration delay the final rule until Congress could
review it.20 In June 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.21
Legislation intended to reverse the revised regulations was introduced by Representative Pallone
in the 111th Congress (H.R. 1310, the Clean Water Protection Act). It proposed to add a definition
17 “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.
18 “EPA, Army Corps Sign Final Rule Refining Definition of Fill; Senate Hearing Expected,” Daily Environment
Report, No. 87, May 6, 2002, p. A-11.
19 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.
20 “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.
21 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.
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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.” This provision
would allow pollutant discharges that replace portions of the waters of the United States with dry
land or which change the bottom elevation of a water body for any purpose to be considered fill
material. But it would reject the view reflected in the 2002 rule that some discharges for purposes
of waste disposal (including mine overburden) should be allowable within the definition of fill.
A somewhat narrower legislative approach was contained in another bill in the 111th Congress, the
Appalachia Restoration Act (S. 696), introduced by Senators Cardin and Alexander. It was similar
to H.R. 1310 in that it proposed to define fill material to include pollutant discharges that replace
portions of the waters of the United States with dry land or which change the bottom elevation of
a water body for any purpose. But it would have excluded the disposal of excess spoil material
from coal surface mining and reclamation activities, as described in Section 515(b)(22) of the
Surface Mining Control and Reclamation Act, in waters of the United States. This provision
appeared to allow discharges from some mining practices to be considered fill material, such as
hardrock mining or mining of other minerals such as sand and gravel (thus qualifying for a 404
permit), while excluding discharges from surface coal mining activities. The significance of both
bills is that discharges of materials that are not eligible for a Section 404 permit are regulated
under CWA Section 402. As discussed in this report, because Section 402 discharge requirements
are more restrictive than those for Section 404, some discharges that could be permitted under
Section 404 cannot be authorized under Section 402. In June 2009, the Senate Committee on
Environment and Public Works Subcommittee on Water and Wildlife held a hearing on the
impacts of mountaintop removal mining on water quality in Appalachia.
No further action occurred on either proposal in the 111th Congress. In the 113th Congress,
Representative Pallone has reintroduced the Clean Water Protection Act, H.R. 1837.22
Legislation also has been introduced in the 113th Congress to codify the current regulatory
definition of fill material in the CWA (H.R. 5077).
Also in the 113th Congress, the Consolidated Appropriations Act, 2014 (P.L. 113-76), enacted in
January 2014, includes a provision (Division D, Section 115) barring the Corps from developing,
adopting, implementing, or enforcing revised regulations concerning definitions of “fill material”
or “discharge of fill material,” although the Corps has not indicated intention to do so. A similar
provision is included in H.R. 4923, FY2015 Energy and Water Development Appropriations Act,
which the House passed on July 10.
The Obama Administration’s specific views on the 2002 fill material rule and recent legislation
are unknown for now.
Another court ruling that could affect congressional interest in these issues is a 2009 Supreme
Court decision in Coeur Alaska Inc. v. Southeast Alaska Conservation Council.23 The case dealt
with the discharge of gold mining waste, or slurry, into a lake in southeast Alaska. In a 6-3
decision, the Court reversed a ruling by the U.S. Court of Appeals for the Ninth Circuit that had
22 He also introduced the legislation in the 112th Congress (H.R. 1375).
23 557 U.S. 261 (2009). For background on this case, see CRS Report R40441, The Supreme Court Accepts Five
Environmental Cases During Its 2008-2009 Term, by Robert Meltz.
Congressional Research Service
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Controversies over Redefining “Fill Material” Under the Clean Water Act
found that discharges from the gold mine are subject to regulation under CWA Section 402. The
Supreme Court ruled that the mining discharges qualified as fill material regulated under Section
404, and that stricter requirements under Section 402 did not apply. Environmental advocates
criticized the Court’s ruling and urged that, in order to preclude similar rulings in the future,
either Congress or the Administration should change the expansive definition of “fill material”
adopted by the Corps and EPA in 2002.
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
Congressional Research Service
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