Joint Appendix — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)
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SEP 17 2008
OFFICE OF THE CLERK
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Nos. 07-984 and 07-990
IN THE
Supreme Court of the United States
COEUR ALASKA, INC., Petitioner,
Vv.
SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,
Respondents.
STATE OF ALASKA, Petitioner,
.
SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,
Respondents.
On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
JOINT APPENDIX
Volume 1 of 2
(Pages la-286a)
THEODORE B. OLSON THOMAS S. WALDO
Counsel of Record Counsel of Record
GIBSON, DUNN & CRUTCHER LLP EARTHJUSTICE
1050 Connecticut Ave., N.W. 325 Fourth Street
Washington, DC 20036 Juneau, AK 99801
(202) 955-8500 (907) 586-2751
Counsel for Petitioner Counsel for Respondents
Coeur Alaska, Inc. Southeast Alaska
Conservation Council, et al.
[Additional Counsel Listed on Inside Cover]
PETITION FOR WRIT OF CERTIORARI FILED JANUARY 28, 2008
CERTIORARI GRANTED JUNE 27, 2008
1.O0adn 7
ail
MATTHEW D. MCGILL
AARON D. LINDSTROM
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, DC 20036
ROBERT A. MAYNARD
PERKINS Coik LLP
251 East Front St. Ste. 400
Boise, ID 83702
Counsel for Petitioner
Coeur Alaska, Inc.
JONATHAN S. FRANKLIN
TILLMAN J. BRECKENRIDGE
FULBRIGHT & JAWORSKI L.L.P.
801 Pennsylvania Ave., N.W.
Washington, DC 20004
(202) 662-0466
TALIS .J. COLBERG
Attorney General
STATE OF ALASKA
Department of Law
P.O. Box 110300
Juneau, AK 99811
(907) 465-3600
CAMERON M. LEONARD
Assistant Attorney General
STATE OF ALASKA
Department of Law
100 Cushman St., Suite 400
Fairbanks, AK 99701
(907) 451-2311
Counsel for Petitioner
State of Alaska
Scotr L. NELSON
PUBLIC CITIZEN LITIGAITON
GROUP
1600 20th St., N.W.
Washington, DC 20009
(202) 588-1000
Counsel for Respondents
Southeast Alaska
Conservation Council, et al.
GREGORY G. GARRE
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General
ELLEN DURKEE
LANE MCFADDEN
Attorneys
DEPARTMENT OF JUSTICE
Washington, DC 20530-0001
(202) 514-2217
Counsel for Federal Respondents
DAVID C. CROSBY
Counsel of Record
5280 Thane Road
Juneau, AK 99801-7717
(907) 586-6262
Counsel for Respondent
Goldbelt, Inc.
[List of Additional Counsel Continued from Front Cover]
TABLE OF CONTENTS
Page
Volume I
A.
G.
Relevant Docket Entries from the
United States Court of Appeals for the
Ninth Circuit, No. 06-35679 ...............cccccceeceeees la
Relevant Docket Entries from the
United States District Court for the
District of Alaska, No. 1:05-CV-00012-
Response to Comments Document re-
garding Section 404 Definitions of “Fill
Material” and “Discharge of Fill Mate-
gt EEE Sa ea ne 22a
Kline Environmental! Research, Ken-
sington Project Lower Slate Lake
Tailings Impoundment: Habitat Crea-
tion and Mitigation Plan (July 14, 2003).....128a
Memorandum from Ed Kline, Kline En-
vironmental Research, to Susan
Hitchcock, Corps of Engineers (Dec. 23,
ERSTE NCTE ur eae Reena aCe ra 13la
Memorandum from D. Regas, et al.,
EPA, to R. Smith, EPA Region X (May
Si TIL ssdiidisiscteneurnniddcsideiidaimditecnigadcbniabdiaebedenetune 14la
Technical Memorandum from Ed Kline,
Kline Environmental Research, to Rick
PRMD GENE, DF, TO Pccencacccsiccccsevcncsscesccnsces 150a
Letter from Dan Easton, State of
Alaska Department of Environmental
Conservation, to John Leeds III, De-
partment of the Army (Dec. 6, 2004) ........... 155a
il
I. Forest Service, Kensington Gold Project
Final Supplemental Environmental
Impact Statement (Dec. 2004) (ex-
J. Forest Service, Kensington Gold Project
2004 Record of Decision (Dec. 2004)............
K. Coeur Alaska, Inc., Reclamation and
Closure Plan for the Kensington Gold
a
L. Letter from Ron Klein, State of Alaska
Department of Environmental Conser-
vation, to Rich Richins, RTR Resource
Management, enclosing Certificate of
Reasonable Assurance (May 6, 2005) ..........
M. Corps of Engineers, Section 404 Permit
I I cscs caiecaaldndtaniaconentendainenaniel
Volume II
N. EPA, Record of Decision: Kensington
Gold Project, Section 402 NPDES Per-
eB citi tcnniitiiscintitetiatnistninciienosiencee
O. EPA, NPDES Permit No. AK-005057
i iiscctiininspdipeinihinnsinsesndesoeneses
P. Declaration of Joe Kahklen (Oct. 12,
Q. Corps of Engineers, Kevised Record of
SE INN TE, SII vcnisedccnccctinntancocceensens
R. Corps of Engincers, Section 404(b)(1)
Evaluation for Kensington Gold Project
I a caibealenioaioaiion
ili
Corps of Engineers, Section 404(b)(1)
Evaluation for Cascade Point (Mar. 29,
TET SE ATT 434a
First Amended Complaint (Apr. 4,
EERIE ee Se a 459a
Opinion of the United States District
Court for the District of Alaska (Aug. 3,
ST ichlisinsidaeihipininsiihsilgeiliininabatipihiibaiignimddbedeveineineiies 478a
Declaration of Randy Wanamaker (Aug.
a eeisinnenon 497a
Order of the United States Court of Ap-
peals for the Ninth Circuit Granting
Injunction Pending Appeal (Aug. 24,
Ee en a 509a
Order of the United States Court of Ap-
peals for the Ninth Circuit Denying
Motion to Vacate the Injunction Pend-
ing Appeal (Dec. S, 200G).........c.cecccsesseccesesees 5lla
Opinion of the United States Court of
Appeals for the Ninth Circuit (May 22,
Order of the United States Court of Ap-
peals for the Ninth Circuit Denying
Rehearing En Banc (Oct. 29, 2007).............. 552a
. Order of the United States Court of Ap-
peals for the Ninth Circuit Staying the
Mandate (Nov. 14, 2007) .....................ee cece 554a
AB. Order of the United States Court of Ap-
peals for the Ninth Circuit Directing
Preparation of Reclamation Plan (Nov.
SE HE til oteiinaisanenasuedeanaibaisaiadbiniinsiiainescenes 555a
la
APPENDIX A
General Docket
United States Court of Appeals for the Ninth
Circuit
Court of Appeals Docket #: 06-25679
Docketed: 08/10/2006
Termed: 05/22/2007
Nature of Suit: 1893 Environmental Matters
Southeast Alaska, et al v. USACE, et al
Appeal From: US District Court for Alaska, Jun-
eau
Case Type Information:
| 1) civil
2) united states
3) null
Originating Court Information:
District: 097--1 : CV-05-00012-J-JKS
Trial Judge: James K. Singleton, Senior Dis-
trict Judge
Date Filed: 09/12/2005
Dese Order/Judgment: Date NOA
Filed:
Nee OO
08/04/2006 08/07/2006 |
* eK K *
|
2a
SOUTHEAST ALASKA CONSERVATION
COUNCIL; SIERRA CLUB; LYNN CANAL
CONSERVATION,
Plaintiffs - Appellants
UNITED STATES ARMY CORPS OF
ENGINEERS; TIMOTHY J. GALLAGHER, Colo-
nel, in his official capacity as District Engineer;
LARRY L. REEDER, in his official capacity of
Chief of the Regulatory Branch; DOMINIC IZZO,
in his official capacity as Principal Deputy Assis-
tant Secretary of the Army (Civil Works); UNITED |
STATES FOREST SERVICE,
Defendants - Appellees
COEUR ALASKA, INC.; GOLDBELT, INC.;
STATE OF ALASKA,
Defendant-intervenors - Appellees
AMERICAN RIVERS; CLEAN WATER ACTION
| NETWORK; COOK INLETKEEFPER;
EARTHWORKS; FRIENDS OF THE EARTH;
NATIONAL WILDLIFE FEDERATION;
NATURAL RESOURCES DEFENSE COUNCIL,
INC.; OXFAM AMERICA; UNITED STATES
PUBLIC INTEREST RESEARCH GROUP;
_WATERKEEPER ALLIANCE; MEMBERS OF
3a
CONGRESS OF THE UNITED STATES, FRANK
PALLONE, JR.; EARL BLUMENAUR; RAUL
GRIJALVA: MAURICE D. HINCHEY; RUSH
HOLT: MIKE HONDA; DENNIS KUCINICH;
BETTY MCCOLLUM: JAMES A. MCDERMOTT:
MARTIN T. MEEHAN: DONALD M. PAYNE: |
JANICE D. SCHAKOWSKY; CHRISTOPHER H.
SHAYS; FORTNEY H. (PETE) START, JR.; NEW |
| STUYAHOK TRADITIONAL COUNCIL;
MOUNTAIN STATES LEGAL FOUNDATION:
| SOUTHEAST CONFERENCE; CITY AND
| BOROUGH OF JUNEAU: BERNERS BAY
CONSORTIUM: NATIONAL MINING
ASSOCIATION,
Amici Curiae
08/10/2006 8 _ Filed (filed per 8/24/06 order) Ap-
pellants Southeast Alaska
Conservation, et al., emergency
motion for injunction; exhibits;
proposed order; served on 8/10/06
[5915052] (to MOATT)
| 08/14/2006 10 Filed appellee Coeur Alaska, Inc.'s
"faxed" motion to strike plntfs'
emergency motion for injunction
pending appeal; served on 8/14/06 |
[5918608] (to MOATT) (hardcopy
recvd 8/17/06)
* * K K XK
4a
See | " |
| 08/18/2006 13 Filed federal appellees USACE, et |
al. "faxed" response in opposition |
to emergency motion for injunction.
pending appeal [5915052-1];
served on 8/18/06 (to MOATT) [06- |
35679] (hardcopy recvd 8/21/06)
* * * * *
08/18/2006 15 Filed appellee Goldbelt, Inc.'s
"faxed" response in opposition to
emergency motion for injunction
(5915052-1]; declaration of Randy |
Wanamaker; exhibits; servedon |
8/18/06 (to MOATT) [06-35679] |
(hardcopy recvd 8/22/06) |
08/18/2006 16 Filed appellee Coeur Alaska, Inc.'s.
"faxed" response in opposition to |
emergency motion for injunction
pending appeal (5915052-1]; |
served on 8/18/06 (to MOATT) [06- |
35679] (hardcopy recvd 8/21/06)
| 08/18/2006 17 Filed appellants Southeast Alaska,
et al. "faxed" response in opposi- |
tion to motion to strike emergency >
motion for injunction pending ap- |
peal [5918608-1]; exhibits; served |
on 8/18/06 (to MOATT) [06-35679] |
(hardcopy recvd 8/22/06) |
* Oe Kk
| 08/21/2006 20 Filed (filed per 8/24/06 order) Ap-
pellants Southeast Alaska _
5a
08/22/2006 21
08/24/2006 24
9/14/2006 28
10/04/2006 41
| 10/04/2006 42
Conservation, et al. "faxed" reply |
in support of emergency motion
[5915052-1]; exhibits; served on
8/21/06 (to MOATT) [06-35679]
(hardcopy recvd 8/24/06)
Filed Appellee Coeur Alaska, Inc.'s
"faxed" reply in support of its mo- |
tion to strike [5918608-1]; served |
on 8/22/06 (to MOATT) [06-35679] |
(hardcopy recvd 8/23/06)
Filed order MOATT ( Alfred T.
GOODWIN, Stephen R.
REINHARDT, ): * * * * (Order
granting injunction pending ap-
peal. See J.A. 458a.] |
* * *K *X * :
Filed original and 15 copies Appel-;
lant Southeast Alaska, et al's :
opening brief ( Informal: n) 54
pages and five excerpts of record
in 3 volumes; served on 9/12/06
[(06-35679]
* KKK *
Filed original and 15 copies appel- :
lee Coeur Alaska, Inc.'s 51 pages
brief, 2 vols of joint Supp EOR
(w/federal appellees); served on
10/3/06 (PANEL) [06-35679]
Filed original and 15 copies appel-
lees' US Army Corps of Engineers,
Timothy J. Gallagher, Larry L.
6a
ee eee
| 10/06/2006 52
| 10/06/2006 53
10/24/2006 58
11/07/2006 67
11/22/2006 70
Reeder, Dominic Izzo, US Forest
Service's 42 pages brief, 2 vols. of
joint Supp EOR (w/appellee Coeur
Alaska); served on 10/3/06
(PANEL) [06-35679]
xk AK HK *K
Filed original and 15 copies appel-
lee State of Alaska's 19 pages
brief; served on 10/6/06 (PANEL)
(06-35679]
Filed original and 15 copies inter-
venor- appellee Goldbelt, Inc.'s 16
pages brief; served on 10/3/06 [06- |
35679)
* * Ke K
Filed original and 15 copies aplts
Southeast Alaska, et al., reply
brief, ( Informal: n ) 40 pages, and |
5 supp’! excerpts in 1 vol.; served
on 10/13/06 (panel already served) |
(06-35679]
* * KK *
Filed aple Coeur Alaska, Inc.'s ur- |
gent motion to vacate injunction
pending appeal on or before
12/8/06; exhibits; served on 11/7/06
(6000308] (faxed to PANEL)
* * * * *
Filed Appellants Southeast
Alaska, et al., response in opposi- —
_ tion to Coeur Alaska's urgent __
Ta
11/30/2006 71
| 12/04/2006 72
12/08/2006 73
05/22/2007 91
motion to vacate injunction
{6000308-1]; exhibits; served on
11/21/06 (fedex to PANEL) [06-
35679]
Filed Appellee Coeur Alaska, Inc.'s
reply in support of its urgent mo-
tion to vacate injunction pending
appeal on or before 12/8/06
[6000308-1]; served on 11/30/06
(faxed to PANEL) [06-35679]
ARGUED AND SUBMITTED TO
Procter R. HUG, A. W. TASHIMA, |
Susan P. GRABER [06-35679]
Filed order (Procter R. HUG, A. W.
TASHIMA, Susan P. GRABER,):
Appellee Coeur Alaska, Inc.'s Ur-
gent Motion Under Circuit Rule
27-3(b) to Vacate the Injunction
Pending Appeal is denied. * * * *
[See J.A. 460a.]
* * KX Kk *
FILED OPINION: REVERSED
and REMANDED ( Terminated on
the Merits after Oral Hearing; Re- |
versed; Written, Signed,
Published. Procter R. HUG, au-
thor; A. W. TASHIMA; Susan P.
GRABER. ) FILED AND
ENTERED JUDGMENT. [06-
35679]
* * * K OX
8a
08/20/2007 102
08/20/2007 104
08/27/2007 106
10/12/2007 115
[08/20/2007 101
[6265410] Filed original and 50 |
copies Appellee State of Alaska's |
petition for rehearing en banc, 18
p.pages; served on 8/17/07
(PANEL, ALL ACTIVE JUDGES |
AND INTERESTED SENIOR
JUDGES) [06-35679]
|
|
|
[6265430] Filed original and 50
copies Appellee Coeur Alaska, Inc. |
petition for rehearing en banc, 20 |
p.pages; served on 8/17/07 |
(PANEL, ALL ACTIVE JUDGES |
AND INTERESTED SENIOR
JUDGES) [06-35679] |
|
|
(6267155) Filed original and 50 |
copies Appellee Goldbelt, Inc. peti-
tion for rehearing en banc, 13
p.pages; served on 8/17/07
(PANEL, ALL ACTIVE JUDGES |
AND INTERESTED SENIOR |
JUDGES) [06-35679] |
Filed order ( Procter R. HUG, A. |
W. TASHIMA, Susan P. GRABER, |
): Plntfs-aplts are requested to file |
responses to Federal aples' peti-
tion for limited panel rehearing |
and each of the intvrs-aples' peti-_.
tions for rehearing en banc.
Responses are to be filed by
10/5/07. (06-35679]
* kK KK
Filed original and 3 copies Appel- —
9a
10/12/2007
10/23/2007
| 10/25/2007
:
10/29/2007
116
123
128
129
lants Southeast Alaska, et al. re-
sponse to federal aples' petition for
limited panel rehearing [6265284- |
1]; served on 10/11/07 (to PANEL)
|(06-35679]
Filed original and 50 copies Appel-
lants Southeast Alaska, et al.
response to petition for rehearing
en banc of aple Goldbelt, Inc.
[6267155-1]; 8 pages; served on
10/11/07 (PANEL, ALL ACTIVE
JUDGES AND INTERESTED
SENIOR JUDGES) [06-35679]
KKK KX
Filed orig & 50 copies of Aplits
Southeast Alaska, et al. response
to petitions for rehearing en banc |
of Coeur Alaska, Inc. and State of
Alaska in 28 pgs; served on
10/11/07. (PANEL, ALL ACTIVE
JUDGES & ANY INTERESTED
SENIOR JUDGES PREVIOUSLY |
SERVED) [06-35679]
Filed Appellants Southeast
Alaska, et al. response in opposi-
tion to motion of Coeur Alaska,
Inc. to file reply brief in support of
petition for rehearing en banc
(6325729-1]; served on 10/24/07
(faxed to PANEL) [06-35679]
Filed order ( Procter R. HUG, A.
W. TASHIMA, Susan P. GRABER,
10a
11/02/2007 133
11/14/2007 139
11/15/2007 140
| 11/26/2007 142
| 06/11/2008 148
): The panel has voted to DENY
the federal aples' petition for lim- |
ited panel rehearing... (6265284-1]
The petitions for rehearing en |
banc are DENIED. (6265410-1),
(6265430-1], (6267155-1] [(06-
35679] |
* * * KX
Filed aple Coeur Alaska, Inc.'s we
tion to stay issuance of the
mandate pending the filing and
disposition for a petition for writ of
certiorari; served on 11/2/07 |
(63399 16} (faxed to PANEL) |
* *K KK
Filed order ( Procter RR. HUG, A. |
W. TASHIMA, Susan P. GRABER,
): * * * *(Order staying the man-
date. See J.A. 503a.]
Filed Appellants Southeast |
Alaska, et al..response in opposi- |
tion to motion of Coeur Alaska,
In.c, to stay issuance of the man-
date [6339916-1]; exhibits; served _
on 11/14/07 (to PANEL) [06-35679]
Filed order ( Procter R. HUG, A.
W. TASHIMA, Susan P. GRABER,
): * * * *(Order re reclamation
plan. See J.A. 504a.])
kK KK *
}
Filed order (A. WALLACE
lla
06/26/2008 149
07/07/2008 150
| 07/07/2008 151
| 07/08/2008 152
07/23/2008 154
TASEIMA, SUSAN P. GRABER
and PROCTER R. HUG) The par-
ties are directed to provide a
status report on the Government’s |
reclamation plan, which was due
May 1, 2008.
Filed joint status report; served on
06/25/2008. (PANEL)
Filed order (A. WALLACE
TASHIMA, PROCTER R. HUG
and SUSAN P. GRABER) In order |
to keep the court fully informed,
we request the parties furnish
three copies of the reclamation
plan.
Received notice from the Supreme
Court. Petition for certiorari
GRANTED on 06/27/2008. Su-
preme Court Number 07-984
Received notice from the Supreme
Court. Petition for certiorari
GRANTED on 06/27/2008. Su-
preme Court Number 7-990. The
case is consolidated with No. 07-
984.
* OK Ke Kk
Filed an orig. & 4 copies Appellee
Coeur Alaska, Inc.'s reclamation
Plan. (fed-ex PANEL)
12a
APPENDIX B
U.S. District Court
District of Alaska (Juneau)
CIVIL DOCKET FOR CASE #: 1:05-cv-00012-JKS
Southeast Alaska Conserva- Date Filed:
tion Council et alv. United 09/12/2005
States Army Corps of Engi- Date Terminated:
neers et al 08/03/2006
Assigned to: James K. Sin- Jury Demand: None
gleton, Jr Nature of Suit: 893
Case in other court: Environmental Mat-
9CCA, 06- ters
35679 Jurisdiction: U.S.
Cause: 05:702 Administra- Government Defen-
tive Procedure Act dant
| ~vanel # Docket Text
i * eK KK
13a
04/04/2006
28
AMENDED COMPLAINT
(First) against Timothy J.
Gallagher, Larry L. Reeder,
Dominic Izzo, U.S. Forest Ser-
vice, United States Army
Corps of Engineers, filed by
Southeast Alaska Conserva-
tion Council, Sierra Club,
Lynn Canal Conserva-
tion.(Schane, Demian)
(Entered: 04/04/2006)
* KKK *
04/05/2006
31
MOTION to Intervene by
Coeur Alaska, Inc.. (Attach-
ments: # 1 Text of Proposed
Order Motion to Intervene# 2
# 3)(Berghoff, John) (Entered:
04/05/2006)
xe KK *K
04/06/2006
33
MOTION to Intervene by
State of Alaska. (Attach-
ments: # 1 Proposed Order# 2
Proposed First Amended An-
swer)( Heese, Ruth) (Entered:
04/07/2006)
x KK KK
l4a
04/07/2006
38
MOTION to Intervene by
State of Alaska. (Attach-
ments: # 1 Proposed Order# 2
Proposed First Amended An-
swer)(Heese, Ruth) (Entered:
04/07/2006)
* eK KK
04/07/2006
41
MOTION for Summary Judg-
ment by Southeast Alaska
Conservation Council, Sierra
Club, Lynn Canal Conserva-
tion. (Attachments: # 1 Text
of Proposed Order Proposed
Order Granting Injunction# 2
H#ZSH4AH#5SHGCHT#H#S#HO#H IO
# 11)(Schane, Demian) (En-
tered: 04/07/2006)
* * KK *
05/03/2006
61
RESPONSE in Opposition re
41 MOTION for Summary
Judgment filed by Goldbelt,
Incorporated. (Attachments: #
1 Exhibit # 2 Exhibit # 3 Ex-
hibit # 4 Exhibit # 5 Exhibit #
6 Exhibit # 7 Exhibit # 8 Ex-
hibit # 9 Exhibit # 10
Exhibit)(Crosby, David) (En-
tered: 05/03/2006)
* * KK *K
15a
05/05/2006
67
RESPONSE in Opposition re
41 MOTION for Summary
Judgment filed by State of
Alaska. (Attachments: # 1
Exhibit State's A# 2 Exhibit
State's B# 3 Exhibit State's
C# 4 Exhibit State's D-I# 5
Exhibit State's D-II# 6 Ex-
hibit State's E# 7 Exhibit
State's F)(Leonard, Cameron)
(Entered: 05/05/2006)
x KKK *
16a
05/05/2006
71
RESPONSE in Opposition re
41 MOTION for Summary
Judgment filed by Coeur
Alaska, Inc.. (Attachments: #
1 Exhibit 1# 2 Exhibit 2# 3
Exhibit 3# 4 Exhibit 4# 5 Ex-
hibit 5# 6 Exhibit 6# 7 Exhibit
7# 8 Exhibit 8# 9 Exhibit 9#
10 Exhibit 10# 11 Exhibit 11,
pages 1-34# 12 Exhibit 11,
pages 35-68# 13 Exhibit 12#
14 Exhibit 13# 15 Exhibit 14#
16 Exhibit 15# 17 Exhibit 16#
18 Exhibit 17# 19 Exhibit 18#
20 Exhibit 19# 21 Exhibit 20#
22 Exhibit 21# 23 Exhibit 22#
24 Exhibit 23# 25 Exhibit 24#
26 Exhibit 25# 27 Exhibit 26,
pages 1-30# 28 Exhibit 26,
pages 31-55# 29 Exhibit 27#
30 Exhibit 28# 31 Exhibit 29#
32 Exhibit 30# 33 Exhibit 31#
34 Exhibit 32)(Berghoff, John)
(Entered: 05/05/2006)
* * KK *
17a
05/05/2006
80
REPLY to Response to Motion
re 41 MOTION for Summary
Judgment filed by Southeast
Alaska Conservation Council,
Sierra Club, Lynn Canal Con-
servation. (Attachments: # 1
Exhibit 43# 2 Exhibit 44# 3
Exhibit 45# 4 Exhibit 46# 5
Exhibit 47, part 1# 6 Exhibit
47, part 2# 7 Exhibit 48, part
2# 8 Exhibit 48, part 2# 9 Ex-
hibit 49# 10 Exhibit 50# 11
Exhibit 51# 12 Exhibit 52# 13
Exhibit 53# 14 Exhibit 54# 15
Exhibit 55)(Schane, Demian)
(Entered: 05/18/2006)
* * * *K K
05/18/2006
104
REPLY to Response to Motion
re 41 MOTION for Summary
Judgment filed by Southeast
Alaska Conservation Council,
Sierra Club, Lynn Canal Con-
servation. (Attachments: # 1
Exhibit 43# 2 Exhibit 44# 3
Exhibit 45# 4 Exhibit 46# 5
Exhibit 47, part 1# 6 Exhibit
47, part 2# 7 Exhibit 48, part
2# 8 Exhibit 48, part 2# 9 Ex-
hibit 49# 10 Exhibit 504 11
Exhibit 51# 12 Exhibit 52# 13
Exhibit 53# 14 Exhibit 544 15
Exhibit 55)(Schane, Demian)
(Entered: 05/18/2006)
18a
* * KK *
08/03/2006
118
JUDGMENT that complaint
is dismissed w/prejudice;
judgment is entered in favor
of Defendants . Signed by
Judge James K. Singleton on
8/3/2006. (DPM, ) (Entered:
08/04/2006)
08/04/2006
117
MEMORANDUM DECISION
denying 41 Motion for Sum-
mary Judgment; granting 80
Cross-Motion for Summary
Judgment; complaint is
hereby DISMISSED
w/prejudice . Signed by Judge
James K. Singleton on
8/3/2006. (DPM, ) (Entered:
08/04/2006)
08/04/2006
119
MOTION for Preliminary In-
junction Pending Appeal
(shortened time) by Southeast
Alaska Conservation Council,
Sierra Club, Lynn Canal Con-
servation. (Attachments: # 1
Proposed Order Granting In-
junction Pending
Appeal)(Waldo, Thomas) (En-
tered: 08/04/2006)
KKK AK K
19a
08/07/2006
125
NOTICE OF APPEAL as to
117 Order on Motion for
Summary Judgment by
Southeast Alaska Conserva-
tion Council, Sierra Club,
Lynn Canal Conservation.
(Attachments: # 1 Civil Cover
Sheet Civil Appeals Docketing
Statement# 2 Exhibit Repre-
sentation Statement)(Waldo,
Thomas) (Entered:
08/07/2006)
* * * * *
08/22/2006
136
RESPONSE in Opposition re
119 MOTION for Preliminary
Injunction Pending Appeal
(shortened time) filed by State
of Alaska. (Attachments: # 1
Exhibit Hughes Declaration
part 1# 2 Exhibit Hughes Dec-
laration part 2)(Leonard,
Cameron) (Entered:
08/22/2006)
20a
08/22/2006
137
RESPONSE in Opposition re
119 MOTION for Preliminary
Injunction Pending Appeal
(shortened time) filed by
Coeur Alaska, Inc.. (Attach-
ments: # 1 Exhibit A# 2
Exhibit B# 3 Exhibit C# 4
Exhibit D# 5 Exhibit E# 6
Exhibit F# 7 Exhibit G# 8
Exhibit H# 9 Exhibit I# 10
Exhibit J# 11 Exhibit K# 12
Exhibit L# 13 Exhibit M# 14
Exhibit N# 15 Exhibit O# 16
Exhibit P)(Berghoff, John)
(Entered: 08/22/2006)
08/22/2006
138
RESPONSE in Opposition re
119 MOTION for Preliminary
Injunction Pending Appeal
(shortened time) filed by
Goldbelt, Incorporated.
(Crosby, David) (Entered:
08/22/2006)
* * KK *
Zla
08/23/2006
143
REPLY to Response to Motion
re 119 MOTION for Prelimi-
nary Injunction Pending
Appeal (shortened time) filed
by Southeast Alaska Conser-
vation Council, Sierra Club,
Lynn Canal Conservation.
(Attachments: # 1 Exhibit 1#
2 Exhibit 2# 3 Exhibit
3)(Schane, Demian) (Entered:
08/23/2006)
eK AK KK
22a
APPENDIX C
RESPONSE TO COMMENTS DOCUMENT
FOR FINAL RULE AMENDING THE
ENVIRONMENTAL PROTECTION
AGENCY'S AND U.S. ARMY CORPS OF
ENGINEERS' CLEAN WATER ACT
SECTION 404 DEFINITIONS OF
"FILL MATERIAL" AND "DISCHARGE OF
FILL MATERIAL"
May 3, 2002
23a
TABLE OF CONTENTS
I sail icceneies carted biechinapeietindaibedd ladasibecmseti 1
lcci idepan duincsauiinodinle ek ae
A. April 2000 Proposal............. <acinidailesiitiadlineliti 1
B. The May 2002 Final Rule ....................0...... 2
Summary of and Responses to Com-
ments on the April 2000 Proposal ..................... 2
Bil. i daiiiirtdcatincscinbiodsadsmenente 2
B. Purpose and Need for Proposed Rule
i eeihiinciaiesiaatiig detnintecancclassiiiadipaibinaposeennnenicnienes 3
1. Conforming Corps and EPA
CEES Ee SSS sy 4
2. Eliminating Primary Purpose
ED cee icsi dsiiiahscesendiesiehtdadetteniniatihhndesineteveinineds 6
3. Eliminating Waste Exclusion.............. 7
ai inieesnentiie 10
1. Consistency with CWA and
Regulatory Framework...................... 11
2. Consistency with the Bragg de-
cision and effect on litigation ............ 16
3. Consistency with the case of Re-
sources Investment Inc. v Corps......... 17
4. Consistency of Proposal with
Past Policy, 1986 Solid Waste
MOA, and Other Agency Docu-
ie dritinnnitntsnisneiieenneneipnbasacesicsecsesessens 25
D. CWA regulation of activities related
GO SRUIEEINEE WP UGRIOOG..........cccccccccccoscsccnccccecees 34
E. Environmental Effects of Proposal........... 35
F. Unsuitable Fill Material..............0..0.00.00... 38
24a
ee a isicicsuebsneiiieinisansinnain 40
ee i iiaiicgs icinenticiteedentinniananennndies 42
I. Economic Effects of Proposal.................... 43
J. Suggested Alternatives or clarifica-
IT seivcedinialininentsabaddabiicadbiepiasbiinkiimidesesnenesses 44
1. Issue Guidance or revise MOA
instead of modifying the rule............. 44
2. Eliminate primary purpose but
retain waste exclusion ....................... 45
3. Clarify or delete effluent limita-
I cicidintitnsescnnnnsenicnecsenessese 46
4. Explain effect on treatment of
EE a 46
5. Modify reference to coal mining
overburden in the definition of
"discharge of fill material" ................. 47
6. Expand the unsuit.ble fill cate-
gory to supplement the waste
EERE Eran oh 47
7. Miscellaneous Suggestions and
EES 6 A St a a 48
a. Combine piling regulation
in same section as new fill
Ly a 48
b. Create additional exemp-
tions to compensate for the
c. Effect on existing permits ........... 48
d. Effect of rule on treatment
OE IIE oc ccccccnscccseceseccocsccccss 49
25a
Clarify when conversions,
diversions, and waste
treatment systems can be
used to avoid jurisdiction ........... 49
Private appropriation of
I ice iseictidiens 50
Consistency between defini-
tions of discharge of dredged
material and discharge of fill ..... 50
26a
RESPONSE TO COMMENTS DOCUMENT FOR
FINAL RULE AMENDING THE ENVIRON-
MENTAL PROTECTION AGENCY'S AND USS.
ARMY CORPS OF ENGINEERS' CLEAN
WATER ACT SECTION 404 DEFINITIONS OF
"FILL MATERIAL" AND "DISCHARGE OF FILL
MATERIAL"!
May 3, 2002
1. Introduction
This Response to Comments Document was pre-
pared as part of the joint rulemaking process in
which the Environmental Protection Agency (EPA)
and the U.S. Army Corps of Engineers (Corps) issued
a final rule amending their respective Clean Water
Act (CWA) section 404 regulatory definitions of "fill
material" and "discharge of fill material." This rule-
making process was initiated on April 20, 2000. The
comment period for the proposal closed on July 19,
2000, after a 60-day comment period had been ex-
tended for an additional 30 days. The agencies
received over 17,200 comments on the proposal, in-
cluding several hundred comments that were
received after the close of the comment period, but
were nevertheless considered. This document sum-
marizes the major issues raised in the public
comments and the agencies responses. This docu-
ment is part of the Administrative Record supporting
the agencies’ final rule.
1 Hereinafter referred to as "the Response to Comments
Document."
27a
2. Background
A. April 2000 Proposal
In April 2000, the agencies proposed revisions to
their respective definitions of "fill material" and "dis-
charge of fill material," adopting a single effects-
based definition for fill material and making con-
forming changes to the latter term. From 1977 until
the issuance of the rule developed in this process,
EPA and the Corps have had different definitions of
the term "fill material." The Corps defined "fill mate-
rial" based on the purpose of the activity. Its
definition of "fill material" adopted in 1977 read
as follows: "The term ‘fill material’ means any
material used for the primary purpose of re-
placing 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 sec-
tion 402 of the Clean Water Act." 33 CFR
323.2(e)(2001) (emphasis added).
In contrast, the EPA regulations at 40 CFR 232.2
defined "fill material" as "any ‘pollutant’ which re-
places portions of the ‘waters of the United States'
with dry land or which changes the bottom elevation
of a water body for any purpose" (emphasis added).
EPA's definition focused on the effect of the material
(an effects-based test), rather than the purpose of the
discharge in determining whether it would be regu-
lated by section 404 or section 402.
The April 2000 proposed rule defined "fill mate-
rial" as material that has the effect of replacing any
portion of a water of the U.S. with dry land, or
changing the bottom elevation of any portion of a wa-
ter of the U.S. The proposal removed from the Corps'
28a
definition the "primary purpose" test and the provi-
sion excluding pollutants discharged into water
primarily to dispose of waste. The April proposal also
would have excluded from the definition discharges
subject to an EPA proposed or promulgated effluent
limitation guideline or standard under CWA sections
301, 304, 306, or discharges covered under a NPDES
permit under CWA section 402. Finally, the April
proposal solicited comments on the idea of the agen-
cies creating an “unsuitable fill" category in the
regulations that would identify materials that the
Corps District Engineer could determine were not
appropriate as fill material and, consequently, refuse
to process an application seeking authorization to
discharge such material.
B. The May 2002 Final Rule
The final rule retains the "“effects-based" ap-
proach of the proposal, defining "fill material" in both
the Corps' and EPA's regulations as material placed
in waters of the United States where the material
has the effect of either replacing any portion of a wa-
ter of the United States with d:) ‘and or changing
the bottom elevation of any portion of a water. The
examples of "fill material" identified in the rule in-
clude 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 waters of the U.S.
The final rule also includes an explicit exclusion from
the definition of "fill material" for trash or garbage.
Today's final rule aiso includes several changes
to the term "discharge of fill material." Most signifi-
cantly, the term now includes’ the’ phrases
“placement of fill material for construction or main-
tenance of any liner, berm, or other infrastructure
29a
associated with solid waste landfills" and “placement
of overburden, slurry, or tailings or similar mining-
related materials." These phrases have been added to
the definition of "discharge of fill material" to provide
further clarification of the types of activities that will
be regulated.
This final rule was developed after considering
the comments provided on the April proposal.
3. Summary of and Responses to Comments
on the April 2000 Proposal
A. Overall Summary
We received over 17,200 comments on the pro-
posed rule, including several hundred late
comments, most of which consisted of identical or
substantially identical e-mails, letters, and postcards
opposing the rule. (In April 2002, an additional sev-
eral thousand letters and e-mails were sent opposing
the adoption of a rule similar to the proposal.) Ap-
proximately 500 of the original comments consisted
of more individualized letters, with a mixture of
those comments supporting and opposing the rule.
The comments of environmental groups and the
various form letters were strongly opposed to the
proposal, in particular, the elimination of the waste
exclusion and the discussion in the preamble regard-
ing treatment of unsuitable fill material. Except for
several landfill representatives, comments from the
regulated community generally supported the pro-
posal, in particular, the fact that the rule would
create uniform definitions of "fill material" for the
Corps' and EPA's rules and maintain regulation of
certain discharges under section 404 as opposed to
section 402 of the CWA. While the above characteri-
zation reflects the general framework for the
proponents and opponents of the rule, both raised a
30a
number of specific issues that are identified and dis-
cussed below.
Because of the nature of the comments (e.g.,
many identical or substantially identical), we were
able to categorize the comments by issue. We then
summarized the comments addressing each issue
and developed a response to the issue. Those sum-
maries. and responses are provided below. This
document is organized by category, with the first
part of the document (sections III. A - I) addressing
issues raised about the proposal and the latter part
of the document (section III J) reflecting alternative
approaches or clarifications to the proposed rule that
were recommended.
B. Purpose and Need for Proposed Rule
Change
The comments received regarding the purpose
and need for the proposed rule change reflect both
support and opposition to the proposal. A significant
number of those commenting support the agencies'
effort to make consistent the Corps' and EPA's regu-
latory definition of "fill material," as well as their
elimination of the primary purpose test in favor of an
effects-based definition. However, many commenters
expressed opposition to the proposed elimination of
the waste exclusion from the definition of "fill mate-
rial,” and specifically asked that the "placement of
coal mining overburden" not be added to those activi-
ties that can be authorized by the Corps as a
“discharge of fill material.” Many stated that the
proposed rulemaking would "result in an uncon-
scionable weakening of the Clean Water Act" by
allowing the Corps to permit the deposition of waste
into waters of the United States.
3la
One commenter remarked that "the impetus for
this proposed rule is the continued regulation of val-
ley fills by the Corps, and not’ improved
implementation of the Clean Water Act." Addition-
ally, changes regarding the permitting of solid waste
landfills could more appropriately be made through
agency guidance or through "supplementing the 1986
MOA with clarifying terms."
One commenter was generally opposed to the
proposed rule changes arguing that "they would
serve as an unbelievable capitulation to coal compa-
nies" and would result in a weakening of existing
clean water laws. Another stated that “instead of re-
writing the rules to allow more fills and other dis-
charges into the nation's waters," the Corps and EPA
should strive to “uphold their Section 404 responsi-
bilities in compliance with Clean Water Act goals."
Several commenters stated that the "proposed
broadening of the Corps' jurisdiction is unwar-
ranted," and concerns were expressed regarding the
effect of the proposed rulemaking on the regulation
of discharges from the on-board processing of sand
and gravel by instream dredging operations, and on
hard rock mining activities.
In light of the comments we received on the pro-
posed rulemaking, we remain convinced of the
fundamental need to reconcile the differing defini-
tions of “fill material" in our regulations. We
disagree with the assertion that the reconciliation of
the definitions by adopting EPA's 25-year old effects-
based approach somehow would weaken the CWA ei-
ther by allowing waste disposal in waters or
broadening jurisdiction. The fact that we have essen-
tially implemented the EPA-based approach since
1977 discredits the notion that this rulemaking now
32a
results in a change from past practice and allows im-
permissible waste disposal. Moreover, the suggestion
that this rulemaking now provides a legal basis for
previously illegal activities is not the case—no dis-
charges that were previously prohibited are now
authorized as a result of this rulemaking.
It is important to note, however, that we do agree
with the sentiments expressed by many commenters
opposed to the rule that the agencies need to do a
more comprehensive job at implementing existing
provisions of CWA section 404 as they pertain to the
review and conditioning of permits for certain dis-
charges, including those that result from mining
activities. Guidance from Corps headquarters in
2000 and changes to Nationwide general permit 21
in 2002 are concrete actions that have been taken re-
cently to improve implementation. The agencies also
concur that additional environmental improvements
under the CWA and under the Surface Mining Con-
trol and Reclamation Act should be evaluated, and
we remain committed to completing the program-
matic Environmental Impact Statement on
Mountaintop Mining and Valley Fills to facilitate
such reviews.
A majority of those commenting on the purpose
and need for the rulemaking, whether or not they
supported specific aspects of the proposal, supported
the basic objective of unifying the definitions. As a
matter of good government and reducing regulatory
uncertainty, we agree that our definitions should be
identical. We also believe that, for a single definition,
maintaining EPA's long-standing effects-based ap-
proach, in lieu of one based on purpose, is preferable
because it provides a more objective and predictable
approach for ensuring that section 404, the regula-
33a
tory regime best suited for controlling discharges
with the effect of fill, is used. Likewise, elimination
of the so-called "waste exclusion" from the Corps'
definition is preferable as it is generally consistent
with current agency practice and it does not expand
the types of discharges that will be covered under the
CWA section 404 program. Specific discussions of the
purpose and need for the rule are provided below and
organized under subheadings dealing with conform-
ing the regulatory definitions, eliminating the
primary purpose test, and eliminating the waste ex-
clusion.
1. Conforming Corps and EPA Defini-
tions
Regarding comments received concerning com
forming Corps and EPA definitions through the
proposed rulemaking, the majority of commenters
were in support of making consistent the Corps’ amd
EPA's regulatory definition of "fill material." Ome
commenter stated, “it clears up longstanding confu-
sion arising from the differing definitions of the two
agencies, and therefore simplifies and clarifies the
regulatory schemes and compliance obligations. An-
other noted that eliminating the current discrepancy
between the EPA and Corps definitions of "fill mate-
rial" will "improve the clarity and consistency of the
Section 404 regulations, and will avoid the need for
litigation predicated on the differences in the exist-
ing rules." Furthermore, another commenter states
the current lack of consistency “has created the po-
tential that, for certain kinds of discharges, there
was no regulatory program pursuant to which au-
thorization could be obtained."
One commenter "agrees that regulatory consis-
tency among federal agencies implementing the
34a
CWA is a good thing when done for the right reasons.
However, a proposal to change the definitions, now
purportedly to rectify misinterpretations by federal
courts, does not make sense." The commenter cites
several additional fill-related court cases that have
not warranted a change in the regulations. Addition-
ally, the commenter states, as proposed, "by
regulating some types of mining wastes under the
402 program and others under the 404 program, they
belie their claim that this proposal will retain cur-
rent practice and resolve regulatory differences."
Although one commenter agreed that “appropri-
ate clarifications will avoid the confusion and
problems associated with the past differences in the
definitions," the agencies have continually acted in a
manner more consistent with the "effects" test than
the Corps' “primary purpose" test. Another com-
menter states, “a unified definition will help
eliminate confusion. Unfortunately, we believe the
proposed definition, although similar to the current
EPA definition, is difficult to interpret and apply to
activities." One commenter speaks to the "regulatory
uncertainty" caused by having inconsistent defini-
tions of "fill material" by stating that there is
"nothing uncertain about the current regulatory
scheme" as it applies to the practice of valley fills. In
keeping with the regulatory agencies’ efforts to pro-
vide consistency, one commenter suggests that "the
two agencies develop an identical list of every known
type of fill material."
In light of the comments we received on the pro-
posed rulemaking, we affirm our position that
conforming the regulations by adopting a single dcefi-
nition is necessary and desirable. Importantly, as a
matter of good government, we believe that a uni-
35a
form definition will eliminate any uncertainty and
confusion that may have been bred by different defi-
nitions applying to the same regulatory program.
The final rule achieves this objective.
Specifically, in response to the commenter that
disputed whether the proposed changes would re-
solve regulated community and court misinterpre-
tations, we disagree. Although regulatory action is
not the automatic result of relevant court decisions
or confusion on the part of the regulated public, it is
an appropriate response in the present situation. Not
only had confusion on the part of the regulated com-
munity occurred, it was manifest in several court
actions. In addition, these court actions did not im-
pact one type of activity, but at least two-those of
landfill construction and those of certain mining dis-
charges. Moreover, the agencies had issued guidance
to address the confusion in the regulated community,
but issues continued to be raised. Given the signifi-
cance of the issues and the less than successful
attempts to resolve them short by guidance, a rule-
making to clarify the issue was warranted. While we
can certainly not guarantee that every future issue is
put to rest with the final rulemaking, the extensive
nature of the comments received by the public has
greatly assisted the agencies in addressing a wide
variety of the final rule's implications.
In response to the specific comment regarding
the suggestion that we develop a list of every known
type of fill material, we conclude that this exercise
would not be practicable. A number of examples of
materials generally included and not included are
provided in the final rule language and/or are dis-
cussed in the preamble. We note that the use of
certain examples in the final rulemaking was a re-
36a
sult of public comment to increase clarity. However,
it is unlikely that a list of every known fill material
could be generated, given the variety of materials
that are or could be discharged. We are satisfied that
the expanded discussion in the final rule language
itself and the preamble is informative and represen-
tative, without being unwieldy.
2. Eliminating Primary Purpose Test
An overview of the comments received regarding
the proposed elimination of the primary purpose test
from the definition of "fill material" reveals both
support and opposition. A significant number of
those commenting supported the replacement of the
Corps' "primary purpose test" with an effects-based
definition.
One commenter noted the change to an effects-
based test "will finally close an infamous loophole
that has allowed wetlands to be filled as long as the
permit applicant could point to a "primary purpose"
other than fill (e.g., solid waste landfill or temporary
road construction)." Another commenter stated, "re-
moval of the primary purpose test and replacing it
with the effects test will promote greater clarity and
consistency in the regulatory approach for wetlands
protection." They further stated that currently some
discharges occur without permit authorization under
either section 402 or section 404 of the CWA, a viola-
tion of section 301, as-a result of the failure to
regulate these fills because of the primary purpose
test.
As discussed in the preamble to the proposed
rule (65 FR 21,294-21,295), we agree that use of a
“primary purpose test" to define fill material has
caused confusion and engendered litigation, prob-
lems which can be substantially reduced or avoided
37a
by use of a more objective effects-based test. With re-
gard to comments on unpermitted discharges being a
violation of section 301, this comment is outside the
scope of the rule, which addresses the issues of how
to define "fill material."
In contrast, another commenter asserted a "pur-
pose-based test can be enforced fairly and in the
public interest" particularly with regard to waste
regulation. Also noted was the "inherent subjectivity
of the wood chips example” discussed in the Public
Notice. The commenter suggested that potential
abuses in interpretation of a purpose-based test
could be addressed through "consideration of the
economics of the proposed commercial activity (par-
ticularly the costs of alternatives available to meet
the intended purpose)." Another commenter also
challenged concerns about the subjective nature of
the determinations performed by the Corps in apply-
ing the primary purpose test. The commenter stated
the Corps “is quite capable (evidenced by the fact
that it has been doing it for years) to determine if the
primary purpose is to get rid of waste or to construct
a fill."
We do not agree that use of a primary purpose
test is preferable to use of an effects-based test for a
number of reasons. Our practical experience with use
of a primary purpose test is that it does result in un-
certainty and confusion, as for example, in the RIJ
case. Although, as the commenter suggested, the
Corps is capable of evaluating project purpose, such
an evaluation nonetheless is subjective, does not en-
sure use of the most appropriate permitting regime,
and as evidenced by Ri/ is subject to a differing in-
terpretation by the court. We believe that in
assigning a discharge to section 404 versus section
38a
402 permitting, it is important to apply the regula-
tory regime that is in fact best-equipped to consider
and control the impacts of the potential discharge.
Because section 404 and its implementing regula-
tions are specifically designed to address discharges
that fill waters of the U.S., we believe that it should
apply to discharges that have such an effect, rather
than locking to the primary purpose of the discharge.
Although we agree that today's final rule does not
eliminate all subjectivity (as in the wood chip exam-
ple given above), use of an effects-based test does
substantially improve clarity and objectivity com-
pared to the subjective nature of a primary purpose
test. With regard to the comment sugges’ 1g use of
an economics-based approach to implement a pur-
pose-based test, this would still assign discharges to
section 404 versus section 402 on the basis of the
purpose of the discharge, rather than on the basis of
which regime is best-equipped to control the poten-
tial impacts. In addition, while use of an economics
based approach could perhaps reduce some of the
subjectivity associated with a purpose-based test, it
does not do so to the degree that an effects-based test
accomplishes, would require development of eco-
nomic yardsticks which themselves would be subject
to subjectivity, and would unnecessarily add a fur-
ther degree of analytical complexity and information
needs to the permitting process. We thus do not
agree with comments favoring use or retention of a
purpose-based test.
One commenter supporting the proposed change
to an effects-based definition of fill stated it should
not be up to the Corps District Engineers’ discretion
“to define what constitutes fill, or what constitutes
effects." It was further suggested that, based on the
CWA section 404(b)(1) Guidelines, "the Corps and
39a
EPA should determine at the national level what
structures, works and activities have the effect of
fill."
We do not agree with these comments. Imple-
mentation of an effects-based test is best left to the
permitting authority (e.g., for section 404, the Dis-
trict Engineer), as they are in the best position to
know local conditions and ascertain a discharge's ef-
fects. In addition, by adopting a single consistent
effects-based test, today's rule provides the permit-
ting authority with an objective means for assessing
the applicability of section 404 and helps ensure con-
sistency between the Corps and EPA in determining
what constitutes "fill material." With regard to the
suggestion that a national level determination
should be made as to what activities or works have
the effect of fill, it is not feasible to come up with a
comprehensive or exhaustive list, and use of an ef-
fects-based test instead both improves clarity while
still being sufficiently broad to encompass the full
range of materials that should be treated as "fill ma-
terial." We also note that as described in the
preamble to today's rule, additional examples of "fill
material" and the "discharge of fill material" have
been added to the final rule.
One commenter indicated that "while an ‘envi-
ronmental effects' test may be appropriate to the
definition of ‘fill material’ in the Section 402 pro-
gram, it is not necessarily similarly appropriate to
the definition of ‘fill material’ in the Section 404 pro-
gram, even if it provides some benefit or clarity," and
went on to state there are situations in which a
broad “environmental effects" trigger is inappropri-
ate for bringing about Section 404 regulation. The
commenter also asserted an environmental effects
40a
rationale was, found to exceed the Corps authority
when the court invalidated "the Tulloch Rule regu-
lating all excavation activities, including those that
were merely removal activities with only incidental
fallback."
We believe that a single and consistent definition
of the term "fill material" is necessary to provide
consistency and certainty in implementation of the
CWA. Use of separate approaches to define that term
under sections 404 and 402 result in uncertainties
and potential regulatory gaps in which material does
not clearly fall within one program or the other. Mat-
ters related to the "Tulloch Rule" (which defines the
term "discharge of dredged material" and “incidental
fallback") are fully discussed in that rule's preamble (
66 FR 4550) and are outside the scope of this rule.
Moreover, today's rule does not use an effects-based
test to determine if a discharge occurs, but rather to
determine when a given discharge falls into the cate-
gory of "fill material" subject to section 404. We also
note that unlike the Tulloch Rule, which implicates
questions of when an addition of a pollutant occurs
in the context of dredging and excavation activities,
the effects-based test adopted in today's definition of
"fill material" addresses additions of material to wa-
ters of the U.S. to such a degree and amount that it
creates dry land or raises the bottom elevation.
Another commenter suggested eliminating the
primary purpose test will increase Corps workload.
They were concerned the proposed change would
elicit an expansion of the Corps' "jurisdiction on cer-
tain kinds of fill material...and would slow the
permit approval process further." We expect that be-
cause today's rule is generally consistent with
existing practice it will not have substantial effects
4la
on Corps workload or engender permit delays. In ad-
dition, unlike the proposal, today's final rule is more
limited in scope as it contains an express exclusion
from the definition of fill for trash and garbage.
Another commenter expressed concern that
elimination of the "primary purpose" test in favor of
an effects-based definition of fill would cause circum-
vention of the CWA by allowing polluters to "pass off
waste material as fill," particularly with regard to
coal mining activities. We do not agree that today's
rule would "cause circumvention of the Clean Water
Act." The Act itself does not define or dictate what
constitutes "fill material," leaving it to the discretion
of the agencies to define that term. As explained in
the proposed rule preamble (65 FR 21294 - 21295)
and the preamble to the final rule, use of a primary
purpose test and differing Corps and EPA definitions
of fill material has resulted in regulatory uncertain-
ties and confusion. Today's rule is intended to avoid
such problems, and is well with the agencies’ author-
ity and discretion to adopt.
3. Eliminating Waste Exclusion
Regarding comments received concerning the
proposed rule's elimination of the waste exclusion,
the majority of commenters were opposed to omitting
the current waste exclusion language from the pro-
posed definition of fill material. One commenter
stated, “elimination of the waste exclusion would
give the Corps new authority to allow the disposal of
refuse directly into the nation's waters, ... and is an
outrageous attempt to circumvent the letter and
spirit of the Clean Water Act." Furthermore, prohib-
iting the disposal of waste "in the nation's waters
under Section 404 is mandated by the letter, pur-
pose, goals, and Congressional intent embodied in
42a
the Clean Water Act." Another commenter noted
elimination of the waste exclusion is contrary to the
“fundamental goal of the Clean Water Act: to elimi-
nate the discharge of pollutants into the waters of
the United States in order to preserve the physical,
chemical and biological integrity of the nation's wa-
ters.
We agree that the goals of the CWA include the
elimination of the discharge of pollutants, but do not
agree that today's rule is inconsistent with those
goals or with any actual requirements of the Act.
First, today's rule does not authorize or permit the
discharge of solid waste to waters of the U.S. As pro-
vided for by section 301 of the CWA, discharges to
waters of the U.S. continue to be prohibited unless a
permit under the Act authorizing the discharge is is-
sued. Rather, the rulemaking being undertaken
clarifies which permitting regime (section 404 or sec-
tion 402) would be applicable. Moreover, as
explained in the preamble to the proposed rule
(65 FR 21293 - 21294), the section 404 program is
specifically designed to regulate material that fills
waters of the U.S. or changes their bottom elevation,
and the 404(b)(1) Guidelines provide for the evalua-
tion of alternatives to avoid or minimize the
discharge of fill material. We also note, that in re-
sponse to comments received, today's final rule
modifies the proposal so as to exclude from the defi-
nition of fill material trash or garbage.
Several commenters suggest that the proposed
elimination of the waste exclusion serves to "endorse
the practice of mountaintop removal mining.” An-
other expressed concern that removal of the
“prohibition on use of fill that is discharged primarily
to dispose of waste" would "greatly increase the uni-
43a
verse of Section 404 regulated activities involving
waste disposal."
Section 404 regulates the discharge of dredged or
fill material to waters of the U.S., whereas the pri-
mary statute governing mountaintop removal mining
is the Surface Mining Control and Reclamation Act
(SMCRA). Rather than somehow "endorsing" that
practice, today's rule ensures regulatory clarity and
consistency by clarifying which CWA regulatory re-
gime governs discharges of material that has the
effect of fill, and does so in a way that is consistent
with EPA's long-standing definition. While today's
rule clarifies that mining related discharges with the
effect of fill, such as overburden, are subject to sec-
tion 404, no such discharge may actually take place
except as authorized by a 404 permit. In addition,
mountaintop mining activities are also subject to
SMCRA permitting requirements before they may
occur. We also do not believe today's rule will greatly
increase the universe of waste disposal activities
regulated by section 404 as today's rule is generally
consistent with existing practice as well as reflecting
the effects-based approach in EPA's long-standing
definition. Finally, as noted above, today's final rule
does specifically exclude from the definition of fill
material trash, garbage or similar materials unless
such materials are to be used to create a structure or
infrastructure in waters of the U.S.
Another commenter was supportive of the clarifi-
cation made by the Corps and EPA. Specifically, the
commenter noted that, to the mining industry, the
term “waste” refers to leftover rock and dirt that is
impacted by coal mining activities, and should be
regulated under section 404 of the CWA. As stated
previously, we believe that in determining whether a
44a
discharge is subject to section 404 or section 402, it is
important to provide for application of the regulatory
regime best suited to control the potential impacts.
These materials both have the effect of-fill and are
geological materials similar to many other types of
fill material; we thus agree it is appropriate that
they be regulated under section 404.
C. Legality of Proposal
1. Consistency with CWA and Regulatory
Framework
A number of comments addressed issues about
the consistency of the proposal with the CWA, gener-
ally, and with the cases and regulatory requirements
implementing the Act. Those opposing the proposal
argued that it reflected a "major weakening of cur-
rent law" and undermined the zero discharge goal of
the Act. The opponents of the rule noted that the
CWA was established to protect the physical, chemi-
cal, and biological integrity of the nation's waters
from pollution emanating from point as well as non-
point sources. Instead, says one comment, the pro-
posal cripples the effectiveness of the Act. An
industry opponent of the rule argued that the rule
goes well beyond the Corps' jurisdiction over protect-
ing wetlands and other rare and important waters,
and now has the Corps asserting jurisdiction over
vast areas of desert that have no connection to the
Corps mandate. Those supporting the rule argued
that the proposal is consistent with the CWA pur-
poses and the regulatory framework for the Act. A
supporter noted that it is clear that Congress did not
intend to stop mining in this country when the CWA
was enacted, which the comment says would be the
outgrowth of some of the arguments alleging that the
proposal violates the CWA.
45a
The agencies do not agree that the proposal
would have resulted in a major weakening of the
CWA. In fact, as noted above, the purpose of this
regulatory change is to improve the effectiveness of
the program by increasing the clarity and consis-
tency of program implementation with the CWA. |
Today's final rule improves upon the proposal by
specifically excluding trash or garbage from the defi-
nition of “fill material" and thereby ensuring that the
public understands that such materials will gener-
ally not be permitted for disposal in waters. It is
important to note that neither the proposal nor this
final rule affects the scope of geographic jurisdiction.
Thus, those comments concerning the scope of geo-
graphic jurisdiction are not germane to today's
action.
Below we will address some the specific com-
ments concerning the legality of the proposal and
this final rule in light of existing regulations and
case law.
a. Section 402 versus section 404. Numerous
commenters noted that, although they agreed with
the intent of subsection (e)(2) of the proposed rule
(i.e., discharges covered by effluent limitation guide-
lines and discharges covered by a section 402
NPDES permit do not require a section 404 permit),
the proposed language specifically excluding dis-
charges subject to proposed or final effluent
limitations guidelines or NPDES permits was am-
biguous and confusing. One commenter, representing
the mining industry, specifically was concerned that
the exclusion, as worded, could inadvertently result
in attempts by regulators in the field to have dis-
charges excluded from section 404 coverage simply
due to the presence of constituents in the material
46a
for which effluent limitation guidelines exist and
would apply if such constituents were discharged in
wastewater (e.g., mine drainage or process waste wa-
ter). Overall, commenters requested clarification of
the (e)(2) language, even if such clarification was
made in the Preamble to the rule.
Based on the comments received, the agencies
recognize the potential for the proposed language to
cause confusion and believe such language is unnec-
essary for achieving the purposes of the rule.
Accordingly, today's final rule deletes the exclusion
for ‘discharges covered by effluent limitation guide-
lines and standards or NPDES permits. The
agencies, however, will continue to be guided by
practices and past determinations about the applica-
bility of effluent limitation guidelines or NPDES
permits in deciding whether section 402 or 404 will
govern specific discharges. If EPA has previously de-
termined that a discharge is covered by an ELG, that
determination is not altered by today's rule. Simi-
larly, even though some discharges covered by
section 402, such as suspended or setteable solids
can have the effect, over time, of raising the bottom
elevation of a water due to settling of waterborne pol-
lutants, we do not consider such pollutants to be "fill
material," and nothing in today's rule changes that
view.
Some commenters noted that section 404 is bet-
ter suited to address certain types of discharges
because it deals with physically modifying or replac-
ing waters, whereas 402 deals with the discharge of
waterborne pollutants and the ability of the receiving
waters to assimilate them. Others, however, main-
tained that, rather than justifying regulation under
section 404, the inability of certain discharges to
47a
comply with section 402 requirements simply dem-
onstrates that the CWA was intended to prohwvit
such discharges. Such comments also questioned the
adequacy of Section 404 regulation of waste-type
fills, due to inconsistent application of its alterna-
tives analysis and compensatory’ mitigation
requirements. The commenters asserted that the
proposed rule constitutes a “dramatic reversal of
agency policy" that was not justified simply to elimi-
nate inconsistencies between the Corps and EPA
definitions.
Clearly, two regulatory programs were estab-
lished by the CWA serving distinct objectives and
goals. One limits discharges of pollutants in order to
protect water quality of the receiving water (section
402 NPDES program). The other regulates dredged
and fill activities that, among other things, may dis-
place or change the elevation of receiving water —
often replacing it with dry land (section 404). Even
though there are some water quality considerations
included in the section 404(b)(1) guidelines, this is
distinct from the water quality considerations and
analysis of the assimilative capacity of receiving wa-
ters done as part of the section 402 review. In
determining whether the section 402 versus section
404 permit will control specific discharges, the differ-
ing purposes of the two programs is an important
consideration. Finally, as explained elsewhere and in
the Federal Register notice of the final rule, today's
rule reflects the approach in EPA's longstanding
regulation and is generally consistent with past
practice, so does not represent a radical departure
for the agencies.
Some commenters also noted that the proposed
rule language and preamble discussion created some
48a
confusion about whether mine overburden and mine
tailings are both subject to section 404 regulation as
opposed to section 402. Today's final rule clarifies
that any material that has the effect of fill is regu-
lated under section 404 and further that the
placement of “overburden, slurry, or tailings or simi-
lar mining-related materials" is considered a
discharge of fill material. Nevertheless, if EPA has
previously determined that certain materials are
subject to an ELG under specific circumstances, then
that determination remains valid. Moreover, NPDES
permits issued pursuant to section 402 are intended
to regulate process water and provide effluent limits
that are protective of receiving water quality. This
distinction provides the framework for today's rule.
b. Operation of Water Quality Standards, anti-
degradation policies and 404(b)(1) Guidelines. Two
comments raised issues concerning compliance of the
proposal with water quality standards and the sec-
tion 404(b)(1) Guidelines, each arguing opposing
conclusions. One comment noted that the Guidelines
prohibited discharges that would cause or contribute
to violations of water quality standards or that
caused or contributed to significant degradation of
the waters. This comment noted that while some
provisions of the Guidelines contemplated a balanc-
ing approach, the above referenced provisions did
not. They simply prohibited such actions. Moreover,
the comment argued that compliance with both pro-
hibitions was required. In addition, the comment
concluded that "filling in waters for the purpose of
waste disposal undeniably violates water quality
standards and anti-degradation regulations," and as
such, is prohibited by the section 404(b)(1) Guide-
lines. The second comment cited to EPA's Water
Quality Standards Handbook and, specifically, to the
49a
discussion of the Anti-degradation policy to reject the
concept that "the anti-degradation policy necessarily
prohibits filling operations by virtue of altering the
use of the stream segment filled." This comment
noted that the Handbook observes that compliance
with the CWA anti-degradation policy is achieved
through the application of the 404(b)(1) Guidelines,
and further that any other construction of the anti-
degradation policy would effectively eviscerate sec-
tion 404 of the CWA. This comment also takes
exception to the notion that all use of streams for
waste assimilation is prohibited. Instead this com-
ment claimed that the prohibition is against the use
of streams as open sewers to the exclusion of other
beneficial uses. The comment argued that theses is-
sues are likewise resolved by the application of the
404(b)(1) Guidelines.
One commenter stated that the proposed rule
will violate the CWA anti-degradation policy and
state water quality standards by allowing discharges
that destroy existing uses of water bodies or that fail
to comply with water quality standards. Another
commenter stated that the anti-degradation policy
prohibits filling operations, generally; while other
commenters noted that such an interpretation would
be inconsistent with the intent of the CWA which ex-
pressly contemplates filling activities under section
404. Moreover, many commenters stated that any
discharge of fill material in waters of the U.S. for
purposes of waste disposal is prohibited by the CWA.
In addition, some commenters added that such waste
material discharges conflict with Federal and State
water quality standards which prohibit the use wa-
ters of the U.S. for waste assimilation purposes
(40 CFR 131.10(a)). Finally, one commenter noted
that the current Corps definition of fill material ex-
50a
cludes waste material and thus is regulated under
section 402 of the CWA which would prohibit such a
discharge.
Questions of whether water quality standards
have been violated or the significant degradation
standard has been surpassed are decided on a case
specific basis, and not simply on the basis of whether
the definition of fill material has been met. The as-
sessment of the impacts in a specific case is critical.
We do not agree with the broad statements that this
rule violates the CWA anti-degradation policies or
water quality standards. First, this rule defines a ju-
risdictional term that simply determines whether a
permit under section 402 or 404 must be obtained for
a discharge into waters of the U.S.; it does not au-
thorize any specific activities. The issue of whether
the anti-degradation policy or water quality stan-
dards will be violated in a specific case will have to
be determined on the facts. Thus, we do not believe
there is any basis to conclude that simply defining
certain waste materials as ‘fill material’ is prohibited
under the CWA as a matter of law.
Moreover, while these commenters suggest that
the only filling prohibited by the Act is for purposes
of waste disposal, in fact, their reading of the anti-
degradation policy would effectively prohibit the dis-
charge of any fill material in waters of the U.S. for
any purpose, as several other comments noted. The
commenters assert that, because the act of filling a
water eliminates a portion of waters, it fails to com-
ply with the requirement of EPA's anti-degradation
policy to maintain and protect existing uses. If this
were a correct reading of EPA's reguiation and the
Act, all fills in waters of the U.S. would be prohib-
ited, because filling a water has the same effect of
5la
eliminating some portion of it regardless of whether
the purpose is waste disposal or some other purpose.
As indicated in several of the comments, this result,
however, would effectively eliminate section 404
from the statute. We believe that, by establishing a
program under section 404 for authorizing dis-
charges of fill material into waters of the US.,
Congress sanctioned the filling or elimination of wa-
ters where it can be done in an environmentally
acceptable manner, i.e., where consistent with the
404(b)(1) Guidelines. Therefore, we do not believe
that these commenters’ reading of the statute can be
squared with section 404 itself.
In contrast to commenters’ strained reading,
EPA's longstanding interpretation of the Act and
EPA's regulations is consistent with Congressional
intent. In 1985, EPA articulated its view that the
anti-degradation policy is satisfied in the context of
discharges subject to section 404 where a discharge
complies with the requirement in the _ section
404(b)(1) guidelines that it not result in significant
degradation of waters of the U.S. See Questions
and Answers on Antidegradation (1985); Water
Quality Standards Handbook: Second Edition,
August 1994. (While the guidance refers spe-
cifically to wetlands, its reasoning applies
equally to discharges of fill material in any wa-
ter of the U.S.). This interpretation does not, like
the commenters’, effectively read section 404 out of
the Act as it relates to fill material. This reading also
reasonably squares EPA's anti-degradation policy
with the specific environmental criteria applicable to
discharges of dredged or fill material that Congress
directed to be followed in section 404.
52a
We also believe that commenters are incorrect
that defining fill material to include certain waste
material somehow violates EPA's water quality
standards regulations related to designation of uses
by states under section 303(c) of the Act. 40 C.F.R.
131.10(a) states: "In no case shall a State adopt
waste transport or waste assimilation as a desig-
nated use for any waters of the U.S." This regulation
is consistent with section 303(c)(2)(A) of the Act, in
which Congress directed states to designate appro-
priate uses of their waters, "taking into account their
use and value for public water supplies, propagation
of fish and wildlife, recreational purposes and agri-
cultural, industrial and other purposes, and also
taking into consideration their use and value for
navigation." EPA promulgated the language cited
above because it believed that Congress intended
that states designate uses under section 303(c) to en-
sure the protection of their beneficial uses, including
those listed in section 303(c). Once a state designates
a use for a water, the state is also required to adopt
numeric or narrative criteria to ensure the protection
of those uses. EPA prohibited designating waters for
waste assimilation or transport because of concern
that such designation would be incompatible with
the beneficial uses that Congress sought to encour-
age states to protect through their water quality
standards.
Nothing in EPA's regulation, however, has any
bearing on whether a particular discharge is classi-
fied as fill material subject to section 404 of the Act,
or another pollutant subject to section 402. Instead,
EPA's regulation only limits states' discretion in
adopting designated uses pursuant to section 303(c),
which are submitted to EPA for approval under that
provision. If a state were to adopt waste transport or
53a
assimilation as a designated use, then, under EPA's
regulation, EPA would be required to disapprove
that designated use and, if the State failed to adopt
an appropriate use, promulgate an appropriate fed-
eral use designation.
Commenters’ reading of section 131.10(a) takes
the provision entirely out of context, for they appear
to read it to mean that no discharges may be author-
ized that would effectively allow transport or
assimilation of wastes in waters of the U.S. That was
never EPA's intent in adopting 131.10(a), nor could it
have been. For example, under section 402 of the Act,
EPA and authorized states issue permits for dis-
charges of pollutants into waters of the U.S., in many
or most cases for discharges of waste. The permitting
authority evaluates, among other things, the effect of
the "transportation" and "assimilation" of those
wastes on the receiving water, and whether the dis-
charge would comply with designated uses and
applicable water quality criteria. Merely because
waste is being transported or assimilated into the
water does not, however, mean that the discharge
violates 131.10(a). If it did, no pollutants could be
discharged under the Act at all, a result contradicted
by the existence of the Act's permitting schemes.
Similarly, under section 404, discharges of waste ma-
terial such as dredged spoil may be authorized even
though the material is being assimilated into a wa-
ter. Again, the permitting authority evaluates
whether the waste discharge complies with water
quality standards, but the mere fact that waste is be-
ing transported and assimilated into the water does
not implicate 131.10(a).
Commenters may believe, in part relying upon
the decision in Bragg v, Robertson, 72 F. Supp. 2d
54a
642 (S.D. W. Va. 1999), rev'd, 248 F. 3d 275 (4th Cir.
2001), that fill material is different in that it may, in
certain circumstances, bury portions of streams, in
which case the waste material may be so large that it
occupies or "assimilates" the entire portion of the
stream. Again, EPA's water quality standards regu-
lation merely limits states' discretion in designating
uses under section 303, and EPA never intended that
this provision directly apply to limit the authority of
EPA, the Corps or states in making permitting deci-
sions under sections 402 or 404 of the Act. Even if
that provision were somehow directly relevant to the
permitting context, commenters’ reading cannot be
squared with section 404 itself which, as discussed
above, expressly contemplates that parties may re-
ceive authorization to "fill" waters of the U.S. subject
to the Act's environmental safeguards. Fills by defi-
nition occupy a portion of a water of the U.S., and in
many cases convert the water to dry land. Obviously,
where that occurs, a designated use may no longer be
met in that portion of the water body. Again, if the
commenters’ reading of 131.10(a) were adopted, no
fills could be authorized in waters of the U.S., a re-
sult directly contradicted by the existence of the
section 404 permitting program for fill material. As
for the concern of some commenters that some fills,
such as certain valley fills, are so large that they
would eliminate entire portions of streams, that does
not change the inapplicability of section 131.10(a) to
the permitting process, or the implication of the
commenters’ reading for undermining the existence
of the 404 permitting program. The size of the valley
fill is, however, very relevant to the section 404 per-
mitting process in determining whether a particular
discharge may be allowed, for the permitting author-
ity must determine that the discharage would not
55a
cause significant degradation of waters of the U.S.,
and that all appropriate and practicable steps have
been taken to avoid, minimize and compensate for
the effects of the discharge.
The final rule recognizes that the term "fill mate-
rial" does not include trash or garbage. If a party
discharges material into waters of the U.S. that does
not meet the final definition of "fill material," this is
a prohibited discharge under CWA section 301 ex-
cept in accordance with a permit issued under the
NPDES program. Several commenters correctly
noted that because discharges of this nature would
not generally meet state water quality standards de-
signed to protect and maintain the integrity of the
nation's waters, the discharge is unlikely to be per-
mitted by the section 402 program.
One commenter noted that currently, the Corps
and EPA provide different definitions of the term "fill
material." This an appropriate reading of current
Corps regulations and illustrates why the Corps and
EPA are issuing this rule today. The confusion
caused by the differing regulatory definitions needed
to be resolved. By establishing a single definition of
"fill material," today's rule will ensure proper, consis-
tent and more effective regulation under the CWA
and reduce the uncertainty within the regulated
community of whether section 404 or section 402 re-
quirements apply to their proposed operations.
2. Consistency with the Bragg decision
and effect on litigation
Several commenters argued that EPA and the
Corps should not be trying to "circumvent" the deci-
sion by the District Court in Bragg v. Robertson,
which stated that coal mine overburden is waste ma-
terial that, under Corps regulations, is subject to
56a
regulation under section 402 of the CWA, not section
404. One commenter also contended that we should
not finalize a rule while the appeal of the Bragg deci-
sion before the 4th Circuit is pending. Two
commenters asserted that the Bragg court ruled that
the Corps did not have jurisdiction over the dis-
charge of mining waste into waters of the U.S., and
several argued that the Bragg ruling found such fills
to be in violation of the CWA.
This final rule is not designed to circumvent any
judicial decisions. Rather, as explained in the pro-
posal, several recent court decisions have concluded
that, that despite EPA's longstanding definition of
fill material and the Corps’ longstanding regulatory
practice, regulating certain discharges under section
404 of the CWA was inconsistent with the definition
of fill in the Corps' regulations. We believe these de-
cisions reflect the uncertainty caused by differing
regulatory definitions of fill material, which we are
resolving today. Rather than "circumventing" those
decisions, today's rule will ensure that, in the future,
the courts have clear regulatory guidance as to how
fill material is regulated under the CWA.
Moreover, while those judicial decisions turned
on the Corps’ regulatory definition of "fill material,"
they did not address the scope of our authority to re-
vise our regulations in a _ reasonable manner
consistent with statutory mandates. Therefore, while
today's rule clarifies the definition of fill material in
response to these courts’ interpretation of our prior
regulations, those decisions do not constrain our au-
thority to adopt today's rule.
As for the status of the Bragg case, the Fourth
Circuit Court of Appeals has reversed the decision of
the District Court and held the claims remaining in
57a
that case were barred by the 11th amendment of the
U.S. Constitution. Therefore, the opinion of the Dis-
trict Court, including dicta addressing the definition
of fill material under the CWA, has been vacated. On
January 23, 2002, the U.S. Supreme Court denied
the plaintiffs' petition for Certiorai . In any case, the
Fourth Circuit noted that its decision did not affect
the District Court's approval of the settlement of the
claims in the case against the Federal defendants
which, consistent with today's rule, provided for the
regulation of coal mine overburden under section 404
of the CWA.
Some commenters reacted to our discussion in
the preamble of the proposed rule of the settlement
of the Bragg litigation, and our discussion of the
steps that federal agencies are taking to ensure that
adequate environmental controls are placed on valley
fills resulting from coal mining operations in West
Virginia. The comments included one voicing concern
that the proposed rule provided no confirmation that,
subsequent to the Bragg MOU, the Corps would pro-
vide more extensive review of proposed valley fills.
Our intent in describing that effort was to highlight
that modifying the definitions of fill material in the
manner we proposed was consistent with our current
practice of regulating valley fills pursuant to section
404 of the CWA. We discussed our current activities
regarding coal mine disposal practices in Appalachia
to provide background for the public on those activi-
ties. However, the manner in which we regulate such
fills, as well as any other particular fill activity, is
not within the scope of this rulemaking, as the sole
issue here is how fill material is defined. The envi-
ronmental controls placed on any particular activity
will be addressed through the section 404 permitting
process, not any elements of today's rule.
58a
To the extent commenters are contending that
the manner in which we have regulated valley fills
demonstrates that such fills should not be regulated
under section 404, we disagree. For all the reasons
we have stated, we believe that the appropriate test
for whether a pollutant is regulated under section
404 as "fill" is whether it has the effect of fill (regard-
less of its purpose), because under’ those
circumstances the section 404 program is particu-
larly well suited to address the environmental
impacts of the discharge.
3. Consistency with the case of Resources
Investment Inc. v Corps
One commenter characterized the proposed rule
as alleviating the jurisdictional uncertainties that
arise from the "primary purpose" test, and in the
commenter's opinion, were the basis for the Ninth
Circuit Court of Appeals' decision in Resource In-
vestments Incorporated v. U.S. Army Corps of
Engineers (RIT), 151 F.3d 1162 (9th Cir. 1998). Other
commenters, however, contend that the government's
application of the RII decision in its stated rationale
for the proposal ignores an additional holding in RIJ.
151 F.3d 1162 (9th Cir. 1998). Commenters charac-
terized the proposed rule as an attempt to "override"
or “overrule” the Ninth Circuit's binding decision
upon the government and asserted that any effort to
change the result in RI/, by redefining "fill material,"
would be improper. Moreover, commenters asserted
that to issue the rule, as proposed, would be inconsis-
tent with the concept that federal agencies are
required to apply federal law as interpreted by the
federal courts in the relevant Circuit. They then ar-
gued that the narrow scope of the R// decision does
not support the government's concerns that an "un-
59a
reasonable end result" may occur should the defini-
tion of "fill material" be left as it is. In addition,
commenters asserted that to revise the definition of
"fill material," as proposed, would be duplicative, as
applied to solid waste landfills. One commenter
framed this argument as having “profound federal-
ism implications," asserting that, under the revised
definition of fill material, both state RCRA-approved
programs and Federal 404 authority to permit land-
fill activities will apply, creating a situation where
potentially inconsistent wetland-impact determina-
tions could result. This too, commenters indicated, is
inconsistent with the holding in RIJ. Commenters
also suggested that the proposed rule is an improper
means of resolving disagreements between the fed-
eral agencies and the courts.
In the Preamble to the final rule, the agencies
addressed RII decision in detail, including responses
to these comments. That discussion is set forth be-
low.
In Resource Investments Inc v. Corps, 151 F.3d
1162 (9th Cir. 1998), the Ninth Circuit held that the
Corps lacked the authority to regulate a solid waste
landfill in waters of the U.S. The court found that:
(1) neither the solid waste itself nor the liner consist-
ing of layers of gravel and low-permeability soil
constituted "fill material" under Corps regulations;
and (2) because of the potential for inconsistent re-
sults if landfills were regulated under both section
404 of the CWA and Subtitle D of RCRA, requiring
these facilities to be subject solely to RCRA would
"harmonize" the statutes.
We discussed this decision in the preamble to the
proposed rule as an example of some of the confusion
engendered by the "primary purpose" test. The court
60a
found in RII that the liner was not fill material be-
cause its primary purpose was not to replace an
aquatic area with dry land or change the bottom ele-
vation of a waterbody, "but rather to serve as a leak
detection and collection system." 151 F.3d at 1168.
We explained in the proposal that fills typically serve
some other purpose than just creating dry land or
raising a water's bottom elevation and that, if the
court's reasoning were taken to its logical conclusion,
many traditional fills in waters of the U.S. would not
be subject to section 404.
Some commenters objected to our proposal not to
follow the decision in RI/J in this rulemaking. They
criticized the proposal as an improper attempt to
"override" or “overrule” the Ninth Circuit's decision,
particularly within the Ninth Circuit where the deci-
sion is binding. They also argued that the proposed
rule failed to address the potential for duplication
and inconsistency in decision-making by State and
Federal agencies identified in RII.
In our view, these comments raise two distinct
issues. The first is whether we should follow the R//
decision outside the Ninth Circuit and cease regulat-
ing discharges associated with the construction of
solid waste landfills under section 404. The second
issue is whether R//J precludes us from regulating
discharges associated with construction of solid
waste landfill structures within the Ninth Circuit,
even after today's rule. We address each of these is-
sues in turn.
Regarding the first question, we note first that,
after RII was decided, we chose not to acquiesce in
the decision outside the Ninth Circuit. While we
agreed that the solid waste disposal placed in a land-
fill is not fill material (and such waste continues to
6la
be excluded under today's rule), we believed that the
court misapplied the primary purpose test in the
Corps' regulations, and that the court's conclusion
that RCRA supplanted CWA regulation was contrary
to Congressional intent. See Resource Investments
Inc. et al. v. Corps, No. 97-35934 (Government's Peti-
tion for Rehearing and Suggestion for Rehearing En
Banc, September 30, 1998). Thus, after the court de-
cided RII, the Corps has continued to issue section
404 permits for the construction of solid waste land-
fill infrastructures outside the Ninth Circuit.
After considering public comments, we continue
to decline to follow the RI/J outside the Ninth Circuit
and have, therefore, maintained the approach in the
proposed rule to the regulation of solid waste land-
fills. The revisions to the Corps' definition of fill
material in today's rule address the basis for the
court's holding that the landfill did not involve the
discharge of fill material under section 404. For the
reasons explained elsewhere in today's notice, we be-
lieve that an effects-based test is the appropriate
means of evaluating whether a pollutant is "fill ma-
terial" and should be regulated under section 404 as
opposed to section 402 of the CWA. The placement of
berms, liners and other infrastructure (such as
roads) associated with construction of a solid waste
landfill in waters of the U.S. has the effect of replac-
ing water with dry land or raising the bottom
elevation of a water. Therefore, under today's rule,
they constitute fill material. Such discharges are in-
distinguishable from similar discharges associated
with other construction activity, which the Corps has
always regulated as fill under section 404. See 40
CFR 232.2; 33 CFR 323.2 (defining "discharge of fill
material,” to include "fill that is mecessary for the
construction of any structure in a water of the U.S.;
62a
the building of any structure or impoundment re-
quiring rock, sand, dirt or other material for its
construction; site-development fills for recreational,
industrial, commercial, residential and other uses;
causeways or road fills; .. ."). We have amended our
definition of this term to include the "placement of
fill material for construction or maintenance of any
liner, berm, or other infrastructure associated with
solid waste landfills." That amendment does not
change substantively the prior definition, but merely
adds solid waste landfills as an example to make
clear that it constitutes a "discharge of fill material."
Thus, under our new regulations, discharges associ-
ated with the creation of solid waste landfill
structures clearly constitute "fill material."
To the extent some commenters asserted that re-
vising our regulation was an improper attempt to
"overrule" or “override” this holding in RII, we dis-
agree. The court's analysis of the "fill material" in
RIT was based entirely on the Corps regulations as
they existed at that time, and not upon the interpre-
tation of the CWA itself. Moreover, the CWA does
not define "fill material." Therefore, both the statute
and the Ninth Circuit's decision leave us the discre-
tion to adopt a reasonable definition consistent with
the statutory scheme. We have explained elsewhere
why we believe today's definition of fill is reasonable
and appropriate under the CWA. To the extent to-
day's rule has the practical effect of "overriding" this
aspect of the court's decision in RII, that is neither
remarkable nor inappropriate, since it is entirely
proper for agencies to consider and, if appropriate,
revise their regulations in light of judicial interpreta-
tion of them.
63a
For purposes of deciding whether to apply the
RII decision outside the Ninth Circuit, we have also
evaluated the second basis for the court's decision —
that regulation solely under Subtitle D of RCRA in-
stead of section 404 would "harmonize" the statutes
and avoid necessary duplication. We decline to follow
that holding both on legal and policy grounds. First,
we believe, notwithstanding RIJ, that eliminating
the CWA permitting requirement on the grounds
that an activity is regulated under RCRA is contrary
to Congressional intent in both statutes. Second, we
dé not agree with the court that regulation under
Subtitle D and section 404 would constitute unneces-
sary duplication, in light of the distinct purposes
served by these authorities, the differing Federal
roles under the two statutes, and our clarification in
today's rulemaking of our intent to give all appropri-
ate deference to State RCRA decision-making in the
section 404 permitting process.
We first do not agree with the court's legal rea-
sons for concluding that regulation under Subtitle D
of RCRA supplants CWA regulation. The CWA pro-
hibits the discharge of any pollutant into waters of
the U.S. without a permit under the Act. See CWA
section 301(a). Even though an activity associated
with a discharge may be regulated under other Fed-
eral or State authorities, we believe there is not any
basis to conclude that such regulation by itself
makes section 301(a) of the Act inapplicable to a dis-
charge of a pollutant into waters of the U.S. In effect,
the court concluded that enactment of a regulatory
scheme under Subtitle D of RCRA impliedly repealed
the statutory permit requirement under the CWA.
But "the intention of the legislature to repeal must
be clear and manifest." Radzanower v. Touche Ross
& Co., 426 U.S. 148, 154 (1976), and the court must
64a
conclude that the two acts are in irreconcilable con-
flict or that the later act covers the whole subject of
the earlier one and is clearly intended as a substi-
tute. Jd. The court in RI/ did not, and could not,
make these findings.
In fact, Congress itself made precisely the oppo-
site findings when it enacted RCRA. Section 1006(a)
states:
Nothing in this chapter shall be con-
strued to apply to (or to authorize any
State, interstate, or local authority to
regulate) amy activity or substance
which is subject to the [CWA] except to
the extent such application (or regula-
tion) is not inconsistent with the
requirements of [the CWA].
This provision precludes regulation of solid waste
landfills under Subtitle D in a manner inconsistent
with the requirements of the CWA. In our view, it is
plainly "inconsistent" with the requirements of the
CWA to hold that regulation under RCRA eliminates
CWA permitting requirement altogether.
Instead, the court relied upon certain Corps
regulations, statements by Corps officials and a 1986
interagency MOA. The court first stated that apply-
ing section 404 to solid waste landfills was
"unreasonable because there would be "potentially
inconsistent results" where both the State and the
Corps were applying the same criteria in regulating
solid waste landfills. 151 F.3d at 1169. The court
held that this "regulatory overlap is inconsistent
with Corps regulations stating that 'the Corps be-
lieves that state and federal regulatory programs
should complement rather than duplicate one an-
other." 33 CFR 320.1(a)(5). In addition, the court
65a
cited statements by the Corps in a 1984 letter to EPA
stating that EPA was in a better position than the
Corps to regulate solid waste landfills. Finally, the
court cited the 1986 MOA between the Corps and
EPA.
However, none of these "authorities" purport to
modify the statutory permitting requirements of the
CWA, nor could they. The Corps’ regulation cited by
the court is simply a statement of the Corps’ policy
objective of working in concert with State regulatory
programs, an important and continuing Corps objec-
tive that was discussed previously. The Corps' letter
and the MOA reflected our efforts to manage our
programs in light of our differing definitions of fill
material, but did not speak to the CWA statutory
permitting requirement. The court also misconstrued
the 1986 MOA entered into by EPA and the Corps as
indicating we intended to make the regulation of
solid waste facilities within "the sole purview of the
EPA and affected states" after EPA promulgated cer-
tain Subtitle D regulations. 151 F.3d at 1169. In fact,
we stated,
EPA and Army agree that consideration
given to the control of discharges of
solid waste both in waters of the United
States and upland should take into ac-
count the results of studies being
implemented under the 1984 Hazardous
and Solid Waste Amendments (HSWA)
to the Resource Conservation and Re-
covery Act (RCRA), signed into law on
November 8, 1984....
Unless extended by mutual agreement,
the agreement will expire at such time
as EPA has accomplished specified
66a
steps in its implementation of RCRA, at
which time the results of the study of
the adequacy of the existing Subtitle D
criteria and proposed revisions to the
Subtitle D criteria for solid waste dis-
posal facilities, including those that
may receive hezardous household
wastes and small quantity generator
waste, will be known. In addition, data
resulting from actions under the in-
terim agreement can be considered at
that time.
It should be noted that this MOA is about
the regulation of solid waste disposal, not
about the construction of infrastructure, in-
cluding solid waste landfill infrastructure, that
involves discharges of fill material to waters of
the U.S. Further, we did not address in the
MOA how solid waste landfills would be regu-
lated after EPA completed its study and certain
RCRA regulations, but said only that these de-
velopments would "be taken into account" as
we decided how to address these discharges in
the future. Thus, in addition to the inability of
the agencies as a legal matter to modify the
CWA _ statutory permitting requirement
through an MOA, we expressly reserved any
judgment about the appropriate regulatory
approach to be taken after certain actions
were taken under RCRA. Also, contrary to the
court's conclusion, we have viewed the MOA as
remaining in effect after EPA submitted its re-
port to Congress and promulgated Subtitle D
regulations in 1991. See Memorandum of John
F. Studt, U.S. Army Corps of Engineers,
May 17,1993 (stating "the subject MOA remains
67a
effective in its entirety until further notice"
and noting that this position was coordinated
with EPA).
We conclude, therefore, that it would be contrary
to the language and intent of both the CWA and
RCRA to conclude that RCRA subtitle D supplants
the CWA permitting requirement for discharges into
waters of the United States associated with the con-
struction of solid waste landfills. The different
Federal roles in the permitting schemes in these
statutes supports this conclusion. Subtitle D provides
that each State will "adopt and implement a permit
program or other system of prior approval and condi-
tions" to assure that each solid waste management
facility within the State "will comply" with criteria
established by EPA for the siting, design, construc-
tion, operation and closure of solid waste landfills.
RCRA section 4005(c)(1B). States are required to
submit permit programs for EPA to review and EPA
is required to "determine whether each State has de-
veloped an adequate program" to ensure compliance
with EPA's Subtitle D regulations. RCRA section
4005(c)(1)(B) and (C). However, RCRA does not grant
to EPA authority to issue permits for solid waste
landfills, review State permitting decisions or enforce
Subtitle D requirements in States with approved
programs. The court in RII appeared to misunder-
stand EPA's authorities under Subtitle D of RCRA
when it stated that EPA would be the permitting au-
thority in the absence of an approved State program.
See 151 F.3d 1169 ("we hold that when a proposed
project affecting a wetlands area is a solid waste
landfill, the EPA (or the approved state program) ...
will have the permit authority under RCRA.") (Em-
phasis added); 151 F.3d at 1167 ("RCRA gives the
EPA authority to issue permits for the disposal of
68a
solid waste, but allows states to substitute their own
permit programs for the federal program if the state
program is approved by EPA."). While this authority
exists with regard to disposal of hazardous waste
under Subtitle C of RCRA, EPA does not have this
authority with regard to disposal of non-hazardous
solid waste under Subtitle D.
In contrast, the CWA requires either a Federal
permit for discharges of pollutants into waters of the
U.S., or issuance of a permit by a State/Tribe with an
approved program, subject to EPA's authority to ob-
ject to a permit where EPA finds it fails to meet the
Guidelines and requirements of the CWA. CWA sec-
tions 402(d); 404(j). EPA also has authority under
the CWA to enforce conditions in Federal or State
permits under the Act. CWA section 309.
These contrasting statutory schemes support the
conclusion that eliminating CWA authority over dis-
charges of fill material associated with construction
of solid waste landfills would mean a significant de-
parture from the statutory structure created by
Congress in the CWA, a scheme which Congress ex-
pressly sought to preserve when it adopted RCRA.
See RCRA section 1006(a). This does not mean that
we view the Federal role as one of second-guessing
every decision made by State regulatory authorities
under RCRA. To the contrary, both RCRA and the
CWA reflect a strong presumption in favor of State-
administered regulatory programs. As _ discussed
elsewhere, we intend to rely on State decision-
making under RCRA to the extent allowed under
current law and regulations. However, we believe
that eliminating a Federal role entirely on these
matters is neither appropriate nor consistent with
Congressional intent under RCRA or the CWA.
69a
Thus, we decline to follow the decision in RIJ
outside the Ninth Circuit because we conclude there
is not an adequate legal basis on which to conclude
that discharges of pollutants associated with solid
waste landfills no longer need to be authorized by a
CWA permit solely because the project receives a
permit under Subtitle D of RCRA.
We nonetheless share the basic policy perspec-
tive expressed by the court in RIJ about the need to
avoid unnecessary duplication and potential incon-
sistent application of regulatory programs under the
CWA and RCRA. In fact, RCRA expressly vests EPA
with the responsibility to “integrate all provisions of
[RCRA] for purposes of administration and enforce-
ment and [to] avoid duplication, to the maximum
extent practicable, with the appropriate provisions of
the ... [CWA]. ... Such integration shall be effected
only to the extent that it can be done in a manner
consistent with the goals and policies of this chapter
and the CWA... ." RCRA section 1006(b). EPA has
sought such integration first by promulgating loca-
tion restrictions for landfills that are consistent with
the criteria for issuance of section 404 permits. See
40 CFR 258.12; 230.10. Among other requirements, a
landfill may not be located in wetlands unless it is
demonstrated to the State that there are not less en-
vironmentally damaging practicable alternatives, the
facility will not cause significant degradation of wet-
lands, and that appropriate and practicable steps
have been taken to mitigate the loss of wetlands
from the facility. However, EPA never purported to
substitute Subtitle D regulation for the CWA permit-
ting requirement, a result that would violate both
section 1006(a) and (b). Instead, the Subtitle D
RCRA regulations make clear that owners or opera-
tors of municipal solid waste landfills "must comply
70a
with any other applicable Federal rules, laws, regu-
lations, or other requirements." 40 CFR .2583. At the
time EPA promulgated this regulation, the agency
expressly noted that such requirements include-
those arising under the CWA. See 56 FR 51042 (Oc-
tober 9, 1991).
We do not believe, however, that the Subtitle D
and section 404 programs are redundant. Rather,
each program has a distinct focus. The State RCRA
permitting process addresses a much broader range
of issues, including technical operating and design
criteria, ground water monitoring, corrective action,
closure and post-closure care and financial assur-
ances. In contrast, the section 404 process is focused
exclusively on the impacts of discharges of fill mate-
rial on the aquatic ecosystem, and ways of ensuring
that those impacts are avoided, minimized and com-
pensated. Because of the Corps' expertise in
protecting aquatic ecosystems, we have found that
State RCRA permitting agencies often incorporate by
reference the requirements of section 404 permits.
(For example, the State RCRA permit for the RJ
landfill required the applicant to implement the wet-
lands and mitigation plan to be approved by the
Corps through the 404 permit process.) We believe
that, in these and other ways, State and federal
permitting authorities can create efficiencies by rely-
ing on each other's expertise in making regulatory
decisions.
We intend to make additional efforts to avoid
unnecessary duplication in the Federal and State
permitting process. As explained in section II.C of
this final preamble, we intend that the Corps will
rely on decisions by the State RCRA authority about
the siting, design and construction of solid waste
J7la
landfills in waters of the U.S. to the extent allowed
by law and regulations. Appropriate deference to
State decision-making will help avoid duplication,
while still ensuring that the Corps fulfills its respon-
sibilities to authorize discharges of fill material
associated with solid waste landfills in accordance
with CWA requirements.
This does not mean that, in every single case,
State and Federal decision-makers will agree on
whether a particular project or configuration is envi-
ronmentally acceptable. Nevertheless, instances of
disagreement have been rare. We intend to further
enhance our efforts to ensure effective coordination
between state and federal officials. However, we do
not agree with the court in RIJ that the only way to
avoid unnecessary duplication is to eliminate the
CWA permitting requirement altogether.
We next address commenters’ assertions that the
decision in RII continues to preclude us from regulat-
ing solid waste landfills under section 404 within the
Ninth Circuit These comments also argue that, given
the ‘statutory’ basis for the court's decision, we can-
not change the result in the Ninth Circuit through
this rulemaking.
As noted above, the court construed administra-
tive materials of the Corps and EPA as supporting
the conclusion that the agencies did not intend to
regulate solid waste landfills under section 404 of the
CWA. In light of this agency intent, the court con-
cluded that subjecting landfills to regulation solely
under RCRA would "harmonize" the statutes and
"give effect to each [statute] while preserving their
sense and purpose.” 151 F.3d at 1169. The court
found that this harmonization "is consistent with the
sense of the CWA that discharges of solid waste ma-
72a
terials are beyond the scope of section 404 ... and
avoids unnecessary duplication of federal and state
efforts in the area of wetlands protection." /d.
We again emphasize the distinction between
“discharges of solid waste material," as referenced by
the court and discharges of fill material associated
with the construction of infrastructure. In this rule-
making, we have clarified that discharges having the
effect of raising the bottom elevation of a water or
replacing water with dry land, including fill used to
create landfills such as liners, berms and other infra-
structure associated with solid waste landfills are
discharges of fill material subject to the section 404
program. Therefore, we have altered the landscape
as understood by the court in RI/ (i.e., that these fa-
cilities were entirely outside the intended purview of
section 404). We do not agree with commenters who
argued that there was a "statutory" basis to the
court's decision in the sense that the holding of the
decision t»rned on an interpretation of Congressional
intent in the CWA or RCRA. The court did not cite
any provision of the CWA or RCRA to support its
conclusions. Rather, the court derived the "sense and
purpose" of the CWA based on agency regulations,
guidance and correspondence. By clarifying the scope
of section 404 authorities in this rulemaking, we
have altered the “sense and purpose" of the CWA
underlying the court's conclusion that regulation
solely under RCRA would "harmonize" the statutes.
Because the premises before the court have changed,
we do not view the court's decision as continuing to
bar the regulation under section 404 of discharges
associated with solid waste landfills within the Ninth
Circuit. At a minimum, today's rule calls into ques-
tion the continuing vitality of the court's reasoning
and conclusions and, should a case be brought within
73a
the Ninth Circuit challenging our authority to regu-
late solid waste landfills, we would ask the court to
address the question anew in light of the clarification
of our authorities in today’s rule.
4. Consistency of Proposal with Past Pol-
icy, 1986 Solid Waste MOA, and Other
Agency Documents
Some commenters questioned the adequacy of
the agencies’ basis for what they perceived as a
change in policy. They viewed the elimination of the
waste exclusion from the Corps’ definition as repre-
senting an unexplained and drastic departure from
existing regulations and agency policy. Other com-
ments viewed the proposed rule as a drastic change
in policy intended to avoid any more challenges to
valley fills and coal mine waste disposal. They as-
serted that it was clear waste disposal is not
allowable under the Corps' definition of fill material
and that activities whose primary purpose is waste
disposal are subject to Section 402, and not Section
404.
We do not agree that the proposal reflects a dras-
tic change in policy. Rather, the rulemaking is
intended to ensure a clear, effective, and consistent
regulatory approach with regard to materials that
have the effect of fill by providing a single consistent
definition of the terms "fill material" and "discharge
of fill material." The rule does this by embodying
elements of both EPA's and the Corps’ previous defi-
nition of fill material, while reconciling the
differences between them. Commenters asserting a
drastic policy shift point to the changes in the Corps'
definition of fill material (33 CPR 323.2(e)(2001)).
Today's rule (by use of an effects-based test to define
fill material) reflects the existing approach already
74a
used under EPA's definition (40 CFR 232.2 (2001)),
which has been in place since 1977. Moreover, the is-
sue being addressed is not solely what materials
should be subject to Section 404 permitting author-
ity, but also the appropriate scope of Section 402
permitting. EPA is the agency assigned responsibil-
ity for administering Section 402, and under the
existing EPA definition, material that has the effect
of fill, regardless of the purpose of the discharge, is
deemed fill material, and as such is not regulated
under the Section 402 program. See, 33 USC
1342(a)(1). As was explained in the proposed rule's
preamble, the rulemaking is intended to reconcile
the differing Corps and EPA definitions in a manner
consistent with the statutory scheme (see 65 FR
21293-21294) and that resolves regulatory uncer-
tainties resulting from the differing definitions (see
65 FR 21294- 21295).
Others expressed concern that the proposal
would place the Corps, rather than EPA, in primary
control of waste disposal in waters of the U.S., believ-
ing that the proposal would dramatically enlarge the
range of Section 404 regulated activities involving
waste disposal. They noted that the proposal not only
would have eliminated the Corps' definition's "pri-
mary purpose" test (i.e., whether the material is used
for the primary purpose of creating dry land or ele-
vating the water body bottom), but also that
definition's exclusion of pollutants primarily to dis-
pose of waste.
Today's rule does not alter jurisdiction under the
Section 402 program as it reflects an effects-based
approach to defining fill material that is similar to
that currently used by EPA. We thus do not agree it
somehow alters responsibilities to make the Corps
75a
the primary agency in charge of waste disposal under
the CWA. We also note that modifications have been
made to the proposal in response to comments re-
ceived expressing concern over the _ proposal's
elimination of the Corps definition's waste exclusion.
In particular, today's rule has been modified to pro-
vide an explicit exclusion from the definition of "fill
material" for trash, garbage or similar materials
unless such materials are to be used to create a
structure or infrastructure in waters of the US.,
such as a berm or artificial reef. That modification
narrows the proposal's scope of what constitutes "fill
material." Thus, even more so than the proposal, the
ruie adopted today does not reflect a policy change
putting the Corps primarily in charge of waste dis-
posal.
Another comment suggested inconsistency of the
proposal with the statement in the proposed rule
preamble that “waters of the U.S. should not be pol-
luted by discharges of solid waste, which is generally
not a suitable or appropriate form of ‘fill material,’
for a variety of reasons." (65 FR 1296). The com-
menter did note the preamble explained the proposed
changes comport with existing practice, but asserted
that existing practices violates the law. They claimed
the rule was being changed to overturn part of the
ruling in Bragg finding that issuance of 404 permits
for the discharges at issue was illegal, in an attempt
"to allow the destruction to continue."
We do not agree that the proposal or today's rule
is inconsistent with the preamble statement. First,
neither the proposal nor today's rule have the effect
of authorizing or permitting the discharge of solid
waste to waters of the U.S. As provided for by Sec-
tion 301 of the CWA, discharges to waters of the U.S.
76a
remain prohibited unless a permit under either Sec-
tion 404 or 402 authorizing the discharge is issued.
Rather, the rulemaking being undertaken clarifies
what regulatory regime (Section 404 or 402) would
be applicable. Moreover, as explained in the pream-
ble to the proposed rule (65 FR 21293 - 21294),
because the Section 404 program is specifically de-
signed to regulate material that fills waters of the
U.S. or changes their bottom elevation, whereas Sec-
tion 402 is primarily designed to regulate sewage
and industrial effluents, we believe Section 404 is
the environmentally preferable permitting regime to
apply. In response to comments received, we also
have modified the proposal in today's final rule to ex-
clude from the definition of fill material trash,
garbage or similar materials unless such materials
are to be used to create a structure or infrastructure
in waters of the U.S.
With regard to assertions that existing practices
do not comport with the law and that the rule is mo-
tivated by an intent to overturn the Bragg decision,
we note the Bragg court actually approved a settle-
ment agreement resolving claims against the Federal
defendants, under which overburden from valley fills
would continue to be subject to Section 404, and de-
termined that settlement agreement "accords with
the law." See 54 F. Supp 653, 665. A subsequent Oc-
tober 1999 Memorandum Opinion and Order in the
Bragg case (addressing SMCRA claims against the
State defendants) contained language that does
question the applicability of Section 404 to mining
overburden in light of the Corps’ regulations’ pri-
mary purpose test. However, as explained in the
proposed rule's preamble (65 FR 21295), that lan-
guage was obiter dicta rather than a holding of the
Court. Moreover, on April 25, 2001, that October
77a
1999 Memorandum Opinion and Order was vacated
by the U.S. Circuit Court of Appeals for the Fourth
Circuit, which determined the underlying claims
against the State defendants were barred by the
1ith Amendment of the U.S. Constitution. 248 F..3d
275 (4th Cir, 2001); that Fourth Circuit decision
left intact the 1998 settlement agreement. See
248 F.3d at 288, n.1 (noting District Court's ap-
proval of the settlement agreement). We thus do
not agree that existing practices do not comport with
the law. See also, Avoyelles Sportsmens League uv.
Marsh, 715 F. 2d. 897, 924-925 (5th Cir. 1983) (en-
dorsing use of an effects-based test for determining
what constitutes fill material subject to Section 404).
Finally, with regard to assertions that the proposal
was somehow motivated by a desire to “overturn the
Bragg decision’ we further note that the proposed
rule preamble explained in detail the various regula-
tory uncertainties and confusion arising from the
differing Corps and EPA definitions of fill material
and the environmental, legal, and programmatic rea-
sons why there was a need to reconcile those
differences. 65 FR 21294 -21295.
Another commenter stated that the volume of a
single stream fill can be as much as up to 250 million
cubic yards with stream burials up to 2 miles long,
and that from 1986 to 1998, at least 900 stream
miles were filled with excess spoil and coal mining
waste in Pennsylvania, Kentucky, West Virginia and
Virginia. The commenter concluded from this that
Section 404 permits are rarely denied and the
404(b)(1) protections that the proposed rule preamble
refers to as sufficiently protective of the aquatic en-
vironment are not if a standard that allows no
"significant effect" allows the complete burial of
miles of streams. This commenter also noted that the
78a
proposal would have added "placement of coal min-
ing overburden" to the definition of “discharge of fill
material," and indicated this was contrary to West
Virginia Coal Assn. v. Reilly, 728 F. Supp. 1276,
1281 (S.D.W.Va. 1989), and that the agencies had
not clarified why amending the regulatory defini-
tions makes more sense than refining the MOA's list
of mining wastes already disposed of under Section
402, pursuant to EPA regulation. Another com-
menter also pointed to the definition of "discharge of
fill material" in 33 CFR 323.2(f), noting that the ex-
amples listed in that definition are all constructive
and do not include waste disposal.
While we agree that the length of streams filled
by valley fills can be substantial, we do not agree
that this leads to a conclusion that such fills or other
such wastes would be better regulated under Section
402 rather than 404. With regard to West Virginia
Coal Assn, that decision involved issues arising un-
der the regulations existing at the time of the
decision (i.e., with the differing Corps and EPA defi-
nitions)and the 1986 MOA that was based on those
regulations; it neither held or suggested that the
regulations could not be changed or clarified so as to
reconcile those differences. With regard to sugges-
tions of further refining the MOA as to regulation of
mining waste under Section 402 or application of
Section 402 in lieu of Section 404, we note that Sec-
tion 404 is better designed to address impacts
associated with filling of waters of the U.S., as it
provides for evaluation of impacts on aquatic ecosys-
tems, consideration of practicable alternatives to
avoid impacts, consideration of measures to mini-
mize impacts, and mitigation of unavoidable impacts.
In contrast, Section 402 primarily relies on use of
end of pipe technology and water quality based stan-
19a
dards. These considerations were explained in detail
in the proposed rule preamble (65 FR 21293 -21294),
and we believe amply support a conclusion that ap-
plication of Section 404 to regulate materials with
the effect of fill is reasonable and environmentally
protective.
We do believe that the agencies should continue
to look for improvement in Section 404 program im-
plementation related to valley fills and have
undertaken a number of measures to that end. These
include an April 1999 Memorandum of Understand-
ing between the Office of Surface Mining, the Fish
and Wildlife Service, EPA, the Corps, and the State
of West Virginia that describes discharges that the
signatory agencies believe generally should have
only a minimal effect on waters of the U.S., develop-
ment of technical models to help minimize the size of
proposed coal overburden discharges, and initiation
of development of a comprehensive EIS to assess
current federal and state authorities for regulating
coal mining discharges in Appalachia and what
measures may be necessary to ensure protection of
human health and the environment. A draft of that
EIS is anticipated to be available for public comment
on August 2002. In addition, Nationwide Permit 21
was revised and reissued on January 15, 2002, with
improvements to its mitigation provisions and a re-
quirement not only for pre-construction notification
to the Corps but also written authorization from the
Corps before the project can proceed. See discussion
of Nationwide Permit 21 at 67 FR 2038- 2043.
Another comment took issue with the proposal's
preamble language (65 FR 21294) that explained it
was problematic for the Corps to make subjective de-
terminations about the primary purpose of a
80a
prospective discharge. The comment suggested this
difficulty would be eliminated if the regulations
made it clear that the Corps and EPA (and not the
project applicant) are to make an independent de-
termination.
We do not agree that the difficulties described in
the preamble can be resolved by simply having us
make an independent determination of the primary
purpose of a prospective discharge. First, we believe
it preferable to apply the regulatory regime that is
best fitted to address the effects of the particular dis-
charge, rather than assigning regulatory responsi-
bility on the basis of project purpose. For discharges
with the effect of fill, as explained above, we believe
the appropriate regulatory regime is Section 404.
Moreover, an independent determination by the
agencies would not resolve difficulties arising under
the primary purpose test. For example, in RII (dis-
cussed in the proposal's preamble at 65 FR 21294),
the Corps determined that a discharge of fill mate-
rial was involved, as the primary purpose of the
discharge associated with construction of the landfill
was to replace waters of the U.S. with dry land or al-
ter the bottom elevation. The Court however
interpreted the primary purpose test on its own to
come to a different conclusion, finding the liner was
not fill material because its primary purpose was not
to replace an aquatic area with dry land or change
the bottom elevation of a waterbody, "but rather to
serve as a leak detection and collection system." 151
F.3d at 1168.
A number of comments were received question-
ing the consistency of the proposed rule with the
1986 "Memorandum of Agreement Between the As-
sistant Administrators for External Affairs and
8la
Water U.S. Environmental Protection Agency and
the Assistant Secretary of the Army for Civil Works
Concerning Regulation of Discharges of Solid Waste
Under the Clean Water Act" ("1986 MOA") and re-
lated agency documents.
Some of these commenters generally pointed to
the 1986 MOA and the "primary purpose test" in the
Corps definition of fill material as presenting a
strong argument that materials are prohibited under
the Section 404 program when they are "pollutants"
being discharged into a water of the US "primarily to
dispose of waste," and thus should be regulated un-
der Section 402 of the Act by EPA as a point source
discharge.
The 1986 MOA is intended to provide guidance to
the Corps and EPA on how to determine the applica-
bility of Section 404 or 402 to solid waste discharges
in light of the differing EPA and Corps definitions of
fill material. Because it is only guidance, it cannot
and does not establish legally binding requirements,
nor is it prescriptive in nature. It provides factors to
be considered when making the determination of
which permitting regi aie to apply, but does not direct
or instruct how the {actors are to be considered or
balanced to reach a conclusion. In fact, it explicitly
recognizes that there will be cases where application
of the factors it contains will not provide a clear an-
swer, or the agencies may disagree as to which
permit regime should be applied. 1986 MOA, Section
C. 1 and 2. As explained in the proposed rule pream-
ble (65 FR 21297), and will be addressed further
below, we believe the approach being taken in recon-
ciling the regulations is generally consistent with the
1986 MOA.
82a
With regard to the Corps regulations defining fill
material, those regulations provide in part:
The term "fill material" means any ma-
terial used for the primary purpose of
replacing an aquatic area with dry land
or of changing the bottom elevation of
an waterbody. The term does not in-
clude any pollutant discharged into the
water primarily to dispose of waste, as
that activity is regulated under Section
402 of the Clean Water Act. 33 CFR
323.2(e) (2001) (emphasis added)
Under EPA's long standing definition of what consti-
tutes fill material (and thus not subject to Section
402 (see CWA Section 402(a)(1)), fill material is de-
fined as material that has the effect of fill, without
regard to the purpose of the discharge. We thus do
not agree that under the differing EPA and Corps
regulations it is simply clear by referring to the
Corps regulations alone that pollutants discharged to
dispose of waste are not subject to Section 404;
rather, the contents of both regulations need to be
taken into account. Moreover, as noted in the prosed
rule's preamble (65 FR 21295) the Corps has histori-
cally regulated valley fills under Section 404.
Some of the comments pointed to specific lan-
guage in the 1986 MOA as indicating that mine
waste was properly the subject of Section 402 and
not Section 404. Several of these commenters cited
Section B.5. of the 1986 MOA. That provision states:
"On the other hand, in the situation in
paragraph B.3, a pollutant (other than
dredged material) will normally be con-
sidered by EPA and the Corps to be
subject to Section 402 if it is discharged
83a
in liquid, semi-liquid, or suspended
form or if it is a discharge of solid mate-
rial of a homogeneous nature normally
associated with single industry wastes,
and from a fixed conveyance, or if
trucked, from a single site and set of
known processes. These materials in-
clude placer mining wastes, phosphate
mining wastes, titanium mining wastes,
phosphate mining wastes, titanium
mining wastes, sand and gravel wastes,
fly ash, and drilling muds. As appropri-
ate, EPA and the Corps will identify
additional such materials."
These commenters saw the proposed rule as a repu-
diation of that provision. Some of these comments
further pointed to a cover memorandum from Law-
rence Jensen, then-Assistant Administrator of the
Office of Water, to Regional Administrators trans-
mitting the 1986 MOA which stated wastes of a
homogenous nature normally associated with a sin-
gle industry and discharged from a fixed conveyance,
or if trucked from a single site such as fly ash, are
subject to the Section 402 program.
As explained previously, under today's rule, we
will continue, consistent with our long-standing
practice, to rely on the existence of effluent limita-
tion guidelines or standards or an NPDES permit to
inform the determination of how a particular dis-
charge is regulated under the Act. If a specific
discharge is regulated under Section 402, it would
not also be regulated under Section 404, and vice
versa. As explained in the proposed rule's preamble
(65 FR 21296), many of the discharges referred to in
Section B.5. of the 1986 MOA are subject to effluent
84a
guidelines and NPDES permitting, and today's rule
would not alter that existing scheme. Moreover,
when Section B.5. of the 1986 MOA was adopted, the
EPA regulations defining fill material, like today's
rule, defined fill material as material that has the ef-
fect of replacing waters of the U.S. with dry land or
changing the bottom elevation. We thus do not agree
that today's rule is inconsistent with or repudiates
that 1986 MOA provision.
One of the commenters further indicated that the
1986 MOA outlined four factors for determining
whether a specific waste was properly regulated un-
der Section 404 or Section 402, stating that each
factor, if it applied to the material at issue, meant
that the material should be regulated under Section
404. The commenter concluded that three of the four
factors listed in the 1986 MOA (Sections B.4.a, b, and
d) weighed in favor of overburden being regulated by
EPA under Section 402, with only one factor (Section
B.4.c) weighing in favor of Section 404.
We do not agree that only one factor in Section
B.4 of the 1986 MOA weighs in favor of regulating
overburden under Section 402 as the commenter as-
serts. With regard to the comment's suggestion that
Sections B.4.a, b, and d weigh in favor of overburden
being regulated under Section 402, we note that Sec-
tion B.4.d refers to heterogenous discharges of the
type "normally associated with sanitary landfills,"
and thus appears inapplicable in the case of over-
burden rather than affirmatively indicating it is
subject to Section 402. With regard to Section B.4.b.,
overburden consists of rock and dirt and thus is simi-
lar in nature to materials generated by construction-
type activities, such as road cuts that generate waste
rock and dirt. The 1986 MOA does not specify how to
85a
weigh and balance the various factors it contains,
and as noted above, Section C of the 1986 MOA ex-
plicitly recognizes this and calls for inter-agency
discussions when the factors specified in the MOA do
not resolve the issue.
Other comments questioned the status of the
1986 MOA, indicating that it was intended to provide
only interim section 404 jurisdiction and pointing to
language in Section E.2. as indicating it expired
when EPA's RCRA Subtitle D regulations were pub-
lished in 1991. Some of these comments pointed to
the RII decision as supporting that view. One of
these comments focused on issues related to the ap-
plicability of Section 404 to solid waste landfills,
asserting that the discussion in the proposed rule
preamble of the 1986 MOA between EPA and the
Corps regarding the "temporary" assertion of juris-
diction over landfills by the Corps was inaccurate
and misleading. This commenter further indicated
that in a case asserting a temporary regulatory tak-
ing of a landfill by the Corps of Engineers, both
former and existing Corps officials have testified un-
der oath that the MOA was intended to impose
interim jurisdiction only until the states took over
their solid waste responsibilities under RCRA Subti-
tle D. The commenter concluded tixet it was simply
untrue that the Corps' “consistent intent" has been to
regulate solid waste landfills.
We note that by its very title the1986 MOA con-
cerns “regulation of discharges of solid waste"
(emphasis added), not the broader question of Sec-
tion 404 jurisdiction over other landfill activities,
such as their construction or maintenance. It thus
does not have a bearing on Section 404 jurisdiction
over discharges of material used to create landfill in-
86a
frastructure such as berms, liners, and the like,
which under both of the differing Corps and EPA
definitions are fill material. Further, Section A.5 of
the 1986 MOA describes the basis of the agreement,
indicating the MOA addresses "the uncertainty as to
whether Section 402 of the Act or Section 404 is in-
tended to regulate discharges of solid waste
materials into waters of the United States for the
purpose of disposal of waste..." (emphasis added).
Because it addresses only solid waste discharges, we
do not agree that the 1986 MOA reflects an intent to
assert “interim jurisdiction over solid waste landfills
by the Corps."
Moreover, in the preamble to the rule adopting
the primary purpose test and waste exclusion, the
Corps specifically recognized that jurisdiction under
that regulation still remained for creation of landfill
infrastructure:
“During the two years of experience
with the Section 404 program, several
industrial and municipal discharges of
solid waste materials have been brought
to our attention which technically fit
within our definition of "fill material"
but which were intended to be regulated
under the NPDES [CWA § 402 permit]
program. * * *
The Corps and [EPA] feel that the ini-
tial decision relating to this type of
discharge should be through the
NPDES program. We have, therefore,
modified our definition of fill material to
exclude those pollutants that are dis-
charged into water primarily to dispose
of waste. We will process Section 404
87a
permits for these types of activities to the
extent that a levee or other type of con-
tainment structure must be placed in the
water as part of the overall disposal
plan."
42 F.R. 37,122, 37,129 (July 19, 1977)
(emphasis added).
Similarly, the proposed rule was intended to rec-
ognize as a discharge of fill material “placement of
material for construction or maintenance of ... in-
frastructure associated with solid waste landfills"
(65 FR 21300). It would not have asserted Section
404 jurisdiction over actual solid waste going into the
landfill cells, and as noted elsewhere, today's rule
has been modified to specifically exclude disposal of
trash garbage and the like from being fill material.
In addition, as explained Section II C. of today's pre-
amble, in implementing Section 404, the Corps will
emphasize effective coordination with other relevant
programs such as RCRA, and consistent with its le-
gal responsibilities, rely as appropriate, on the
information developed and conclusions reached by
other agencies to support the decisions required un-
der that program. Readers are also referred to the
previous discussion in today's preamble for issues re-
lated to the applicability of Section 404 to landfills
and the Resource Investment case.
With regard to the status of the 1986 Solid Waste
MOA, we also do not agree that it has expired. Sec-
tion 5.E.2. of the 1986 MOA provides it may be
extended by mutual agreement, and both EPA
(58 FR 9337) and the Corps (May 17, 1993, memo-
randum from John Studt, Chief Regulatory Branch,
U.S. Army Corps of Engineers) have indicated the
MOA remains in effect.
88a
One commenter stated that the 1986 MOA con-
tains language that is potentially confusing and
inconsistent with the proposed rule and the accom-
panying preamble and recommended that while they
believed the 1986 MOA contains some provisions
worth maintaining, it also contains others that
should be reworked consistent with the proposed rule
and current permitting practices. This commenter
pointed to Section B.4.d of the 1986 MOA as provid-
ing that a discharge will normally be considered to
meet the definition of "fill material’ if heterogeneous
in nature and of the type normally associated with
sanitary landfill discharges, whereas in the preamble
to the proposed rule, the agencies proposed to adopt
a definition of “unsuitable” fill material that would
include in most instances “heterogeneous solid
waste," thereby excluding from the Section 404 per-
mit program materials that would satisfy the
language in Section B.4.d of the 1986 MOA. This
commenter also pointed to Section B.5 of the 1986
MOA (which addresses “solid material of a homoge-
neous nature normally associated with single
industry wastes") as resulting in confusion and in-
consistent positions for materials generated by hard
rock mining.
We agree that in many respects the 1986 MOA
did not fully resolve issues associated with the dis-
charge of solid waste. This is not surprising as it was
developed under a regulatory framework involving
differing definitions of fill material, and as guidance,
could not depart from those regulations or establish
mandatory or prescriptive criteria. Following prom-
ulgation of today's rule which results in a single and
consistent definition of fill material, we will be revis-
iting the 1986 MOA to determine if it is still
89a
necessary, and if so, what modifications might be ap-
propriate.
One commenter opposing the proposed rule re-
quested that if it nonetheless is issued, language in
Section B.6. of the 1986 MOA be retained, which
provides for a State determination to be provided
prior to application processing that the proposed dis-
charge will comply with applicable provisions of
State law, including applicable water quality stan-
dards. The commenter indicated this was necessary
in order to keep Corps districts from becoming im-
mersed in disputes over siting of wasting facilities.
We will take this comment into account in re-
viewing the 1986 MOA. We also note that Section
401 of the CWA itself requires any applicant for a
Federal license or permit to conduct any activity that
may result in a discharge of a pollutant into waters
of the U.S. to obtain a certification from the State as
to compliance with applicable provisions of State
law, including applicable water quality standards.
With regard to Section 404 permits, the Corps has in
place regulations addressing the nature and timing
of such 401 certifications. See e.g., 33 CFR Part 320.
One commenter provided lengthy historical in-
formation asserting that the proposed _ rule's
preamble description of how the differing definition
of “fill material" came into being incorrectly ascribing
this divergence to actions by the Corps. We appreci-
ate submission of this information, but note that the
preamble language in question (65 FR 21294) was in-
tended only as brief background chronology, not to
explain how the definitions came to differ.
Other comments pointed to a March 19,1984, let-
ter from William R. Gianelli, then Assistant
Secretary of the Army for Civil Works, to William
90a
Rucklelshaus, then Administrator of EPA, which was
cited in the RII case at 151 F.3d 1169. These com-
ments pointed to language in that Department of
Army letter stating:
"This follows up on discussions our
agencies have had over the years about
the proper way to regulate garbage dis-
posal and other waste disposal in
waters of the United States.
EPA has many solid waste responsibili-
ties under its RCRA programs and has
developed expertise in that area. Army
has very limited expertise. Hence we
would have to establish duplicative ex-
pertise which may well result in policies
and technical decisions which differ
from those of EPA. It would not be in
the best interest of Government for EPA
to work with the States under RCRA
under one policy and Army to operate
under a 404 permit program for garbage
disposal on a different basis. It is logical
to identify regulations of garbage dis-
posal with EPA's current and historic
mission. It strains reason to have the
Army Corps of Engineers, with its pri-
mary military and navigation missions,
to lead this garbage disposal regula-
tion."
They commenters believed that letter indicates
that while EPA has many solid waste responsibilities
under its RCRA programs and has developed exper-
tise in that area, the Corps has very limited
expertise.
“
9la
The letter in question addresses the "proper way
to regulate garbage disposal." As explained else-
where in today's preamble, we have modified the
proposal in today's rule to generally exclude trash or
garbage from the definition of "fill material." We
thus believe today's rule to be consistent with the
referenced letter. We also note that since 1984,
through its dredged material management program,
the Corps has gained considerable expertise with re-
gard to disposal of geological materials and
sediments dredged from waters of the U.S. See for
example, Inland Testing Manual. EPA/USACE,
1998. Evaluation of Dredged Material Proposed for
Discharge into Waters of the U.S. — Testing Manual.
EPA-823-B-98-004, Washington, DC. Moreover, as
explained in the preamble to the proposed rule
(65 FR 21296), where discharges of solid waste sub-
ject to Section 404 also result in the discharge of
effluent to waters of the U.S., the effluent discharge
would require a Section 402 permit and thus be sub-
ject to applicable technology and water quality based
standards under that program.
D. CWA regulation of activities related to
mining practices
Some commenters generally agreed with the lan-
guage relating to mining activities and by-products
provided in the definition of "discharge of fill materi-
als." One commenter indicated that the addition of
examples served to “clarify Section 404's applicabil-
ity to solid waste landfills and placement of coal
mine overburden." Many of these commenters wrote
in to explain the practical realities associated with
certain types of mining activities. They agreed that
utilizing Section 404 authority is the only reasonable
approach under which mining activities can be per-
92a
mitted. A result other than that proposed by the rule,
commenters said, “could deal a crippling blow" to the
mining industry. One commenter did, however, voice
concerns over the current Corps practice of permit-
ting "valley fills" under the authority of Section 404
and thus disagreed with the inclusion of mining ac-
tivities at all in the definition of "discharge of fill
material."
Commenters had concerns though with the identifi-
cation of only one particular mining activity (coal
mining) and one particular by-product of mining ac-
tivities (overburden). They suggested that the
“singling out” of coal mining overburden may leave
the impression that other mining activities and their
related by-products are not intended to fall within
this definition, leaving to question if mining activi-
ties, other than the coal industry, fall into Section
404 regulation. Some commenters further suggested
that the rule draws an ‘arbitrary distinction" among
types of mining by the specific inclusion of coal min-
ing overburden as an example of fill in the language
of the rule. These commenters stated that the spe-
cific inclusion of coal mining related materials may
result in differing treatment under the regulations of
other forms of mining overburden. This, commenters
suggest, will create significant uncertainty in other
sectors of the mining community.
Under the CWA, the regulatory programs of
the Corps and the EPA are concerned with
“discharges' into waters of the United States
and their related effects. In general, Section 404
discharges into waters of the United States that are
associated with mining activities primarily fall into
two broad categories: the discharge of overburden
materials, and the discharge of mining by-products
93a
such as those resulting from mining beneficiation or
the processing of mined materials. Overburden ma-
terials typically consist of the same kinds of rock and
soil materials that are typically utilized for construc-
tion fills which, when discharged into waters of the
United States, have traditionally been regulated by
the Corps under section 404 of the CWA. In contrast,
the mining by-products may have a slightly different
physical form from the traditional rock and soil used
as fill material, but it can have the same effect on the
aquatic environment as those materials. Where the
discharge of both types of materials into waters of
the United States will result either in a change in
the bottom elevation, or in the replacement of the
waters with dry land, both materials clearly qualify
as "fill material" under this rule, and their discharge
into waters of the United States will be regulated by
the Corps under section 404 of the Act.
However, the scope of the Corps’ review of such
discharges normally will encompass the direct, indi-
rect, and cumulative effects on waters of the United
States. Under Section 404, the agencies may not
evaluate or control mining activities that are other-
wise not regulated under the CWA.. The CWA does
not regulate mining activities, per se. However,
as indicated, some activities that are associ-
ated with mining do involve discharges of
materials into waters of the United States.
In the so-called ‘valley fill' situations, coal
mining interests under certain circumstances
have no practicable alternative to placing the
rock and soil overburden, slurry, tailings and
similar materials from mining operations into
valley areas that most typically contain
streams and wetlands. Mining activities, other
94a
than coal mining, are sometimes faced with
similar situations. Both the Corps and the EPA
agree that the placement of these materials in
areas that qualify as waters of the United
States must be regulated, but not absolutely
prohibited, under section 404 of the CWA.
While some Corps Districts have been regulat-
ing mining discharges in the manner the
agencies believe appropriate, today's rule will
clarify the agencies' position for all regulators
and members of the public and result in uni-
form application of these important
requirements.
Accordingly, we disagree with those com-
ments that urge us to maintain the confusion
created by the Corps and EPA having different
definitions for the term ‘fill material’ with the
purpose being to curtail all mountaintop min-
ing and other similar mining practices. We
believe that the appropriate application of
these key jurisdictional terms and of the Sec-
tion 404 permit requirements, in the context of
specific requests for authorization, can result
in the authorization of activities that are con-
sistent with the CWA requirements. It is not
within the purview of the Corps' and EPA's au-
thority to address alleged problems associated
with mining practices that go beyond those as-
sociated with discharges into waters of the U.S.
E. Environmental Effects of Proposal
Many commenters opposed to the rule expressed
concern that it would have broad and far-reaching
environmental effects, characterizing it as allowing
the use of waters of the U.S. as dumping grounds for
excess mine overburden and other solid wastes, and
95a
asserting that the rule would result in a dramatic in-
crease in such dumping These commenters
contended that mountaintop removal coal mining
and the use and size of valley fills associated with
this practice, in particular, would increase, referenc-
ing the fourfold increase in affected areas in West
Virginia over the past twenty years as an example.
Many commenters asserted that the proposed rule
would result in a backsliding from improvements in
water quality gained through the CWA and SMCRA.
We believe that the preamble to the rule ad-
dresses these concerns at length. In sum, we
disagree that today's rule would have any significant
effect on the environment, including encouraging
mountaintop mining activities. Today's rule is con-
sistent with EPA's longstanding definition of fill and
the current practice of regulating valley fills under
section 404. Today's final rule simply brings im-
proved consistency and clarity into the regulations.
This improvement will lead to more effective imple-
mentation of the CWA, thereby strengthening
environmental protection. The rule should not be
misread as opening U.S. waters to uncontrolled
waste; analysis under the guidelines and appropriate
mitigation provide the most appropriate framework
for assessing and responding to proposed impacts.
A number of comments also detailed past, pre-
sent, and possible future ecological effects of
mountaintop mining coal removal, and other mining
practices which involve fill material. For example,
the comments stated that more than 300,000 acres of
hardwood forests in West Virginia have been de-
stroyed by the practice of mountain top mining.
Many noted that the forests of Appalachia are among
the most productive and diverse in North America,
96a
that they are vitally important to migratory birds,
and that many species are unique to Appalachia.
Many commenters referred to affected areas as being
among the richest temperate freshwater ecosystems
in the world. Others discussed the various effects to
underlying streams and surrounding areas, includ-
ing impacts on air quality, stream hydrology,
temperature, runoff, aquifer recharge, and the
aquatic and terrestrial life (including impacts on
threatened and endangered species) that depend on
the affected streams and neighboring habitats. Oth-
ers discussed the pollution in immediate and
downstream areas, such as acid and toxic mine
drainage, as well as possible effects of other polluting
waste, noting that contamination has rendered many
streams lifeless. Some commenters noted that nega-
tive effects would extend downstream all the way to
coastal wetlands and estuaries.
Comments also provided information on current
conditions of natural resources as evidence of the al-
ready degraded environment, noting that 750 miles
of streams have been filled in West Virginia, and
that 12,000 miles of streams in the U.S. have been
contaminated from mine overburden, many of which
have not yet been reclaimed. Two commenters noted
that the Coal River in West Virginia has been named
as one of the country's most endangered rivers for
the past two years due to mountaintop removal coal
mining, and expressed concern about the cumulative
impacts of future valley fills creating new waste
streams into already degraded rivers. Another com-
menter found discrepancy between the legal practice
of mountaintop removal coal mining and the illegal
use of dynamite for fishing of coral reef fish in ma-
rine environments. Many expressed concern about
the extent and permanence of effects on the envi-
97a
ronment, such as changes in landscape, contour, and
habitat, effects on downstream water quality when
headwaters, streams and wetlands are removed from
the watershed or carry contaminated waste, and the
future cumulative impacts to rivers and watersheds
in impacted areas. Furthermore, they argued that
mining companies have not taken responsibility to
restore and rehabilitate land and waters affected in
the past, and that EPA and the Corps have failed to
require such measures.
We maintain that by improving consistency and
clarity, today's rule increases regulatory effective-
ness. Furthermore, many of the wide range of
impacts detailed in the comments are not within the
jurisdiction of the Corps and EPA. The Office of Sur-
face Mining (OSM) has authority to address concerns
such as stream hydrology, water quality, acid and
toxic mine drainage, landscape contour, the restora-
tion and rehabilitation of affected areas, and the use
of explosives in relation to mining under the SMCRA
§515(b). OSM sets specific environmental protection
performance standards under SMCRA, which ad-
dresses the environmental concerns voiced in
comments. While improvements in the regulation of
mining practices is worthy of attention, this rule is
not the vehicle for addressing the range of issues
identified in the comments.
Numerous commenters maintain that this rule
will have direct effects on human health, and were
particularly concerned about the contamination of
drinking water. Several comments stated that drink-
ing water sources in some coalfield communities are
no longer reliable, forcing communities to either pay
for systematic purification or to purchase purified
drinking water. One commenter indicated that many
98a
families cannot afford to pay for clean drinking wa-
ter. Part of EPA's mission is to ensure safe drinking
water, and under the Safe Drinking Water Act, EPA
has the authority to set drinking water standards to
control the level of contaminants in the nation's
drinking water and to regulate publicly-or-privately-
owned drinking water systems which serve 25 people
or more. EPA does not regulate private wells that
supply water to fewer than 25 people, or private
drinking water supplies from streams or cisterns, but
works closely with our State, Tribal, and local part-
ners to prevent contamination of drinking water
supplies at the source.
Many commenters from the affected communities
discussed other impacts from mountaintop removal
coal mining, such as increased flooding, damage to
the structural integrity of homes and other buildings,
dust, noise, and vibration from blasting. Some con-
tended that families have been uprooted due to
unfavorable living conditions, sometimes leaving
homes or communities that have existed for many
generations, resulting in the loss of cultural heritage
in Appalachia. In addition, many commenters men-
tioned the adverse impacts on aesthetics, historic
sites, water recreation and tourism. We appreciate
these concerns, and again stress that OSM has au-
thority over many of these impacts, and in particular
that explosives are used only in accordance with
State and Federal laws and regulations (SMCRA
§515(b)(15)). Moreover, OSM must ensure blasts do
not damage property outside the permit area.
Other comments viewed the proposed rule as a
weakening of federal protection. One commenter ar-
gued that the proposed rule would make it
impossible to comply with wetland rehabilitation and
99a
recovery mandates, TMDLs, and the Clean Water
Action Plan. Another comment argued that the pro-
posed rule contradicts the Report to Congress: Waste
from the Combustion of Fossil Fuels, in which EPA
held that coal combustion waste in mined lands were
strongly acidic. Today's rule represents a coordina-
tion of efforts aimed at minimizing confusion and
inefficiency in the evaluation and development of
mitigation for proposed projects, and thus works to-
wards the goals of the Clean Water Action Plan.
Anti-degradation policies provide for the protection
of existing uses in waters and the level of water qual-
ity necessary to protect those uses. EPA interprets
40 CFR 131.12(a)(1) of the anti-degradation policy to
be satisfied with regard to fills in wetlands if the dis-
charge does not result in "significant degradation" to
the aquatic ecosystem as defined in the Section
404(b)(1) Guidelines. Furthermore, it is still the case
that coal combustion wastes are regulated under
RCRA Subtitle D (Federal Register 40 CFR Part
261). We believe that today's rule is consistent with
current federal laws and regulations.
We maintain that by improving consistency and
clarity, today's rule increases regulatory certainty
but will not have any significant effect on the envi-
ronment, and will not cause the other effects of
concern related to mountaintop mining operations.
While specific proposals to undertake mountaintop
mining and discharge fill material into waters of the
U.S. will have environmental and other effects, to-
day's rule does not authorize or otherwise address
those effects, which are, however, addressed in the
context of the section 404 and SMCRA permitting
processes. Therefore, nothing in this rule is inconsis-
tent with environmental protection principles under
various aspects of the CWA or with EPA's regulatory
100a
determination relating to fossil fuel combustion
wastes under RCRA, which was solely concerned
with whether regulation of those wastes under subti-
tle C of RCRA was warranted. Furthermore, many of
the wide range of impacts detailed in the comments
are not within the jurisdiction of the Corps and EPA.
The OSM has authority to address concerns such as
stream hydrology, water quality, acid and toxic mine
drainage, landscape contour, the restoration and re-
habilitation of affected areas, and the use of
explosives in relation to mining under SMCRA
§515(b). OSM sets specific environmental protection
performance standards under SMCRA, which re-
flects the environmental concerns voiced in
comments.
F. Unsuitable Fill Material
Many commenters raised concerns over the pro-
posal's discussion of including an “unsuitable fill
material" provision in the Corps' regulations that
would seemingly have replaced the waste exclusion
currently defined by the Corps’ regulations. They in-
dicated that the proposed definition of unsuitable fill
was “too weak and vague" to adequately replace the
waste exclusion as currently embodied in the Corps
regulations. Commenters cited to the preambie lan-
guage indicating that “unsuitable” materials could
include those that have the potential to leach con-
taminants. They identified this as overly broad and
indicated that it provided little guidance as to what
materials may be considered "unsuitable" and there-
fore not permitable. Commenters suggested that this
would add new uncertainty into the regulatory proc-
ess and was contrary to EPA's and the Corps’ stated
intent not to alter current permitting practices. Simi-
larly, one commenter noted that the April 2000
10la
preamble discussion of homogeneity and heterogene-
ity as a determining factor for the suitability of fill
material was confusing, particularly because both
terms are used to describe materials that would not
permitted under section 404. Specifically, the com-
menter was seeking clarification as to whether the
proposed rule intended to exclude from section 404
only those entrained solids contained in water dis-
charged pursuant to section 402, rather than any
waste materials that may contribute contaminants to
water.
In contrast, some commenters indicated that the
definition, while useful in addition to the waste ex-
clusion, was not broad enough to capture some
discharges that they deemed also unsuitable as fill
material. These commenters also generally argued
that the appropriate place for this provision would be
in the rule itself, as opposed to the preamble where it
appeared in the April 2000 proposal.
Some commenters suggested that the agencies’
comparison of unsuitable fill in the April proposal to
the existing general condition addressing unsuitable
fill which is applicable to all nationwide permits was
inappropriate. These commenters stated that the
general condition should not be use as a basis of sup-
port for widespread use elsewhere under section 404
as it is not justified due to the significant differences
between individual permits and nationwide permits.
Commenters further suggested that the concept of
unsuitable fill is already adequately addressed by
the Section 404(b)(1) Guidelines and related evalua-
tion, thus the process for review of individual
permits should remain as it stands now.
As it pertains to granting the Corps District En-
gineer discretionary authority to refuse to process a
102a
section 404 permit application, commenters raised
concerns that this would exceed the Agency's author-
ity under the CWA. This, one commenter stated,
undermines the "statutory scheme which contem-
plates reasoned decision making after notice and
opportunity for a public hearing.” One commenter
indicated that this would "inject uncertainty into the
process' and could lead to inconsistencies amongst
the Corps Districts throughout the countr
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