Appendix — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

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APPENDIX

STATUTORY PROVISIONS INVOLVED

Section 301 of the Clean Water Act (Title 33

U.S.C. § 1311) provides, in relevant part:

§ 1311. Effluent limitations

(a) Illegality of pollutant discharges except

in compliance with law

Except as in compliance with this section

and sections 1312, 1316, 1317, 1328, 1342, and

1344 of this title, the discharge of any pollut-

ant by any person shall be unlawful.

x AK KK

(e) All point discharge source application

of effluent limitations

Effluent limitations established pursuant

to this section or section 1312 of this title shall

be applied to all point sources of discharge of

pollutants in accordance with the provisions of

this chapter.

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2a

Section 306(e) of the Clean Water Act (33 U.S.C.

§ 1316(e)), provides:

§ 1316. National standards of perform-

ance

* ek KK €

(e) Illegality of operation of new sources in

violation of applicable standards of perform-

ance

After the effective date of standards of per-

formance promulgated under this section, it

shall be unlawful for any owner or operator of

any new source to operate such source in vio-

lation of any standard of performance applica-

ble to such source.

Section 402 of the Clean Water Act (33 U.S.C.

§ 1342) provides, in relevant part:

§ 1342. National pollutant discharge

elimination system

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328

and 1344 of this title, the Administrator may,

after opportunity for public hearing, issue a

permit for the discharge of any pollutant, or

combination of pollutants, notwithstanding

section 1311(a) of this title, upon condition

that such discharge will meet either (A) all

applicable requirements under sections 1311,

1312, 1316, 1317, 1318, and 1343 of this title,

or (B) prior to the taking of necessary imple-

menting actions relating to all such require-

ments, such conditions as the Administrator

3a

determines are necessary to carry out the pro-

visions of this chapter.

* KK RK

(k) Compliance with permits

Compliance with a permit issued pursuant

to this section shall be deemed compliance, for

purposes of sections 1319 and 1365 of this ti-

tle, with sections 1311, 1312, 1316, 1317, and

1343 of this title, except any standard imposed

under section 1317 of this title for a toxic pol-

lutant injurious to human health. Until De-

cember 31, 1974, in any case where a permit

for discharge has been applied for pursuant to

this section, but final administrative disposi-

tion of such application has not been made,

such discharge shall not be a violation of (1)

section 1311, 1316, or 1342 of this title, or (2)

section 407 of this title, unless the Adminis-

trator or other plaintiff proves that final ad-

ministrative disposition of such application

has not been made because of the failure of the

applicant to furnish information reasonably

required or requested in order to process the

application. For the 180-day period beginning

on October 18, 1972, in the case of any point

source discharging any pollutant or combina-

tion of pollutants immediately prior to such

date which source is not subject to section 407

of this title, the discharge by such source shall]

not be a violation of this chapter if such a

source applies for a permit for discharge pur-

suant to this section within such 180-day pe-

riod.

* * KK *

4a

Section 404 of the Clean Water Act (33 U.S.C.

§ 1344) provides:

§ 1344. Permits for dredged or fill mate-

rial

(a) Discharge into navigable waters at

specified disposal sites

The Secretary may issue permits, after no-

tice and opportunity for public hearings for the

discharge of dredged or fill material into the

navigable waters at specified disposal sites.

Not later than the fifteenth day after the date

an applicant submits all the information re-

quired to complete an application for a permit

under this subsection, the Secretary shall pub-

lish the notice required by this subsection.

(b) Specification for disposal sites

Subject to subsection (c) of this section,

each such disposal site shall be specified for

each such permit by the Secretary (1) through

the application of guidelines developed by the

Administrator, in conjunction with the Secre-

tary, which guidelines shall be based upon cri-

teria comparable to the criteria applicable to

the territorial seas, the contiguous zone, and

the ocean under section 1343(c) of this title,

and (2) in any case where such guidelines un-

der clause (1) alone would prohibit the specifi-

cation of a site, through the application addi-

tionally of the economic impact of the site on

navigation and anchorage.

(c) Denial or restriction of use of defined

areas as disposal sites

5a

The Administrator is authorized to pro-

hibit the specification (including the with-

drawal of specification) of any defined area as

a disposal site, and he is authorized to deny or

restrict the use of any defined area for specifi-

cation (including the withdrawal of specifica-

tion) as a disposal site, whenever he deter-

mines, after notice and opportunity for public

hearings, that the discharge of such matcrials

into such area will have an unacceptable ad-

verse effect on municipal water supplies, shell-

fish beds and fishery areas (including spawn-

ing and breeding areas), wildlife, or recrea-

tional areas. Before making such determina-

tion, the Administrator shall consult with the

Secretary. The Administrator shall set forth in

writing and make public his findings and his

reasons for making any determination under

this subsection.

(d) “Secretary” defined

The term “Secretary” as used in this sec-

tion means the Secretary of the Army, acting

through the Chief of Engineers.

(e) General permits on State, regional, or

nationwide basis

(1) In carrying out his functions relat-

ing to the discharge of dredged or fill mate-

rial under this section, the Secretary may,

after notice and opportunity for public

hearing, issue general permits on a State,

regional, or nationwide basis for any cate-

gory of activities involving discharges of

dredged or fill material if the Secretary de-

termines that the activities in such cate-

gory are similar in nature, will cause only

6a

minimal adverse environmental effects

when performed separately, and will have

only minimal cumulative adverse effect on

the environment. Any general permit is-

sued under this subsection shall (A) be

based on the guidelines described in sub-

section (b)(1) of this section, and (B) set

forth the requirements and standards

which shall apply to any activity author-

ized by such general permit.

(2) No general permit issued under this

subsection shall be for a period of more

than five years after the date of its issu-

ance and such general permit may be re-

voked or modified by the Secretary if, after

opportunity for public hearing, the Secre-

tary determines that the activities author-

ized by such general permit have an ad-

verse impact on the environment or such

activities are more appropriately author-

ized by individual permits.

(f) Non-prohibited discharge of dredged or

fill material

(1) Except as provided in paragraph (2)

of this subsection, the discharge of dredged

or fill material—

(A) from normal farming, silvicul-

ture, and ranching activities such as

plowing, seeding, cultivating, minor

drainage, harvesting for the production

of food, fiber, and forest products, or up-

land soil and water conservation prac-

tices;

7a

(B) for the purpose of maintenance,

including emergency reconstruction of

recently damaged parts, of currently

serviceable structures such as dikes,

dams, levees, groins, riprap, breakwa-

ters, causeways, and bridge abutments

or approaches, and_ transportation

structures;

(C) for the purpose of construction

or maintenance of farm or stock ponds

or irrigation ditches, or the mainte-

nance of drainage ditches;

(D) for the purpose of construction

of temporary sedimentation basins on a

construction site which does not include

placement of fill material into the navi-

gable waters;

(E) for the purpose of construction

or maintenance of farm roads or forest

roads, or temporary roads for moving

mining equipment, where such roads

are constructed and maintained, in ac-

cordance with best management prac-

tices, to assure that flow and circulation

patterns and chemical and biological

characteristics of the navigable waters

are not impaired, that the reach of the

navigable waters is not reduced, and

that any adverse effect on the aquatic

environment will be otherwise mini-

mized;

(F) resulting from any activity with

respect to which a State has an ap-

proved program under section

1288(b)(4) of this title which meets the

8a

requirements of subparagraphs (B) and

(C) of such section, is not prohibited by

or otherwise subject to regulation under

this section or section 1311(a) or 1342 of

this title (except for effluent standards

or prohibitions under section 1317 of

this title).

(2) Any discharge of dredged or fill ma-

terial into the navigable waters incidental

to any activity having as its purpose bring-

ing an area of the navigable waters into a

use to which it was not previously subject,

where the flow or circulation of navigable

waters may be impaired or the reach of

such waters be reduced, shall be required

to have a permit under this section.

(g) State administration

(1) The Governor of any State desiring

to administer its own individual and gen-

eral permit program for the discharge of

dredged or fill material into the navigable

waters (other than those waters which are

presently used, or are susceptible to use in

their natural condition or by reasonable

improvement as a means to transport in-

terstate or foreign commerce shoreward to

their ordinary high water mark, including

all waters which are subject to the ebb and

flow of the tide shoreward to their mean

high water mark, or mean higher high wa-

ter mark on the west coast, including wet-

lands adjacent thereto) within its jurisdic-

tion may submit to the Administrator a full

and complete description of the program it

proposes to establish and administer under

9a

State law or under an interstate compact.

In addition, such State shall submit a

statement from the attorney general (or the

attorney for those State agencies which

have independent legal counsel), or from

the chief legal officer in the case of an in-

terstate agency, that the laws of such

State, or the interstate compact, as the

case may be, provide adequate authority to

carry out the described program.

(2) Not later than the tenth day after

the date of the receipt of the program and

statement submitted by any State under

paragraph (1) of this subsection, the Ad-

ministrator shall provide copies of such

program and statement to the Secretary

and the Secretary of the Interior, acting

through the Director of the United States

Fish and Wildlife Service.

(3) Not later than the ninetieth day af-

ter the date of the receipt by the Adminis-

trator of the program and statement sub-

mitted by any State, under paragraph (1) of

this subsection, the Secretary and the Sec-

retary of the Interior, acting through the

Director of the United States Fish and

Wildlife Service, shall submit any com-

ments with respect to such program and

statement to the Administrator in writing.

(h) Determination of State’s authority to

issue permits under State program; approval;

notification; transfers to State program

(1) Not later than the one-hundred-

twentieth day after the date of the receipt

by the Administrator of a program and

10a

statement submitted by any State under

paragraph (1) of this subsection, the Ad-

ministrator shall determine, taking into

account any comments submitted by the

Secretary and the Secretary of the Interior,

acting through the Director of the United

States Fish and Wildlife Service, pursuant

to subsection (g) of this ‘section, whether

such State has the following authority with

respect to the issuance of permits pursuant

to such program:

(A) To issue permits which—

(i) apply, and assure compliance

with, any applicabie requirements of

this section, including, but not lim-

ited to, the guidelines established

under subsection (b)(1) of this sec-

tion, and sections 1317 and 1343 of

this title;

(ii) are for fixed terms not ex-

ceeding five years; and

(iii) can be terminated or modi-

fied for cause including, but not lim-

ited to, the following:

(I) violation of any condition

of the permit;

(11) obtaining a permit by

misrepresentation, or failure to

disclose fully all relevant facts;

(III) change in any condition

that requires either a temporary

or permanent reduction or elimi-

lla

nation of the permitted dis-

charge.

(B) To issue permits which apply,

and assure compliance with, all appli-

cable requirements of section 1318 of

this title, or to inspect, monitor, enter,

and require reports to at least the same

extent as required in section 1318 of

this title.

(C) To assure that the public, and

any other State the waters of which

may be affected, receive notice of each

application for a permit and to provide

an opportunity for public hearing before

a ruling on each such application.

(D) To assure that the Administra-

tor receives notice of each application

(including a copy thereof) for a permit.

(E) To assure that any State (other

than the permitting State), whose wa-

ters may be affected by the issuance of a

permit may submit written recommen-

dations to the permitting State (and the

Administrator) with respect to any

permit application and, if any part of

such written recommendations are not

accepted by the permitting State, that

the permitting State will notify such af-

fected State (and the Administrator) in

writing of its failure to so accept such

recommendations together with its rea-

sons for so doing.

(F) To assure that no permit will be

issued if, in the judgment of the Secre-

12a

tary, after consultation with the Secre-

tary of the department in which the

Coast Guard is operating, anchorage

and navigation of any of the navigable

waters would be substantially impaired

thereby.

(G) To abate violations of the permit

or the permit program, including civil

and criminal penalties and other ways

and means of enforcement.

(H) To assure continued coordina-

tion with Federal and Federal-State wa-

ter-related planning and review proc-

esses.

(2) If, with respect to a State program

submitted under subsection (g)(1) of this

section, the Administrator determines that

such State—

(A) has the authority set forth in

paragraph (1) of this subsection, the

Administrator shall approve the pro-

gram and so notify (i) such State and (ii)

the Secretary, who upon subsequent no-

tification from such State that it is ad-

ministering such program, shall sus-

pend the issuance of permits under sub-

sections (a) and (e) of this section for ac-

tivities with respect to which a permit

may be issued pursuant to such State

program; or

(B) does not have the authority set

forth in paragraph (1) of this subsection,

the Administrator shall so notify such

State, which notification shall also de-

l3a

scribe the revisions or modifications

necessary so that such State may re-

submit such program for a determina-

tion by the Administrator under this

subsection.

(3) If the Administrator fails to make a

determination with respect to any program

submitted by a State under subsection

(g1) of this section within one-hundred-

twenty days after the date of the receipt of

such program, such program shall be

deemed approved pursuant to paragraph

(2)(A) of this subsection and the Adminis-

trator shali so notify such State and the

Secretary who, upon subsequent notifica-

tion from such State that it is administer-

ing such program, shall suspend the issu-

ance of permits under subsection (a) and (e)

of this section for activities with respect to

which a permit may be issued by such

State.

(4) After the Secretary receives notifi-

cation from the Administrator under para-

graph (2) or (3) of this subsection that a

State permit program has been approved,

the Secretary shall transfer any applica-

tions for permits pending before the Secre-

tary for activities with respect to which a

permit may be issued pursuant to such

State program to such State for appropri-

ate action.

(5) Upon notification from a State with

a permit program approved under this sub-

section that such State intends to adminis-

ter and enforce the terms and conditions of

l4a

a general permit issued by the Secretary

under subsection (e) of this section with re-

spect to activities in such State to which

such general permit applies, the Secretary

shall suspend the administration and en-

forcement of such general permit with re-

spect to such activities.

(i) Withdrawal of approval

Whenever the Administrator determines

after public hearing that a State is not admin-

istering a program approved under subsection

(h)(2)A) of this section, in accordance with

this section, including, but not limited to, the

guidelines established under subsection (b)(1)

of this section, the Administrator shall so no-

tify the State, and, if appropriate corrective

action is not taken within a reasonable time,

not to exceed ninety days after the date of the

receipt of such notification, the Administrator

shall (1) withdraw approval of such program

until the Administrator determines such cor-

rective action has been taken, and (2) notify

the Secretary that the Secretary shall resume

the program for the issuance of permits under

subsections (a) and (e) of this section for ac-

tivities with respect to which the State was is-

suing permits and that such authority of the

Secretary shall continue in effect until such

time as the Administrator makes the determi-

nation described in clause (1) of this subsec-

tion and such State again has an approved

program.

(j) Copies of applications for State permits

and proposed general permits to be transmit-

ted to Administrator

l5a

Each State which is administering a per-

mit program pursuant to this section shall

transmit to the Administrator (1) a copy of

each permit application received by such State

and provide notice to the Administrator of

every action related to the consideration of

such permit application, including each permit

proposed to be issued by such State, and (2) a

copy of each proposed general permit which

such State intends to issue. Not later than the

tenth day after the date of the receipt of such

permit application or such proposed gencral

permit, the Administrator shall provide copies

of such permit application or such proposed

general permit to the Secretary and the Secre-

tary of the Interior, acting through the Direc-

tor of the United States Fish and Wildlife Ser-

vice. If the Administrator intends to provide

written comments to such State with respect

to such permit application or such proposed

general permit, he shall so notify such State

not later than the thirtieth day after the date

of the receipt of such application or such pro-

posed general permit and provide such written

comments to such State, after consideration of

any comments made in writing with respect to

such application or such proposed general

permit by the Secretary and the Secretary of

the Interior, acting through the Director of the

United States Fish and Wildlife Service, not

later than the ninetieth day after the date of

such receipt. If such State is so notified by the

Administrator, it shall not issue the proposed

permit until after the receipt of such com-

ments from the Administrator, or after such

ninetieth day, whichever first occurs. Such

16a

State shall not issue‘such proposed permit af-

ter such ninetieth day if it has received such

written comments in which the Administrator

objects (A) to the issuance of such proposed

permit and such proposed permit is one that

has been submitted to the Administrator pur-

suant to subsection (h)(1)(E) of this section, or

(B) to the issuance of such proposed permit as

being outside the requirements of this section,

including, but not limited to, the guidelines

developed under subsection (b)(1) of this sec-

tion unless it modifies such proposed permit in

accordance with such comments. Whenever

the Administrator objects to the issuance of a

permit under the preceding sentence such

written objection shall contain a statement of

the reasons for such objection and the condi-

tions which such permit would include if it

were issued by the Administrator. In any case

where the Administrator objects to the issu-

ance of a permit, on request of the State, a

public hearing shall be held by the Adminis-

trator on such objection. If the State does not

resubmit such permit revised to meet such ob-

jection within 30 days after completion of the

hearing or, if no hearing is requested within

90 days after the date of such objection, the

Secretary may issue the permit pursuant to

subsection (a) or (e) of this section, as the case

may be, for such source in accordance with the

guidelines and requirements of this chapter.

(k) Waiver

In accordance with guidelines promul-

gated pursuant to subsection (i)(2) of section

1314 of this title, the Administrator is author-

17a

ized to waive the requirements of subsection

(j) of this section at the time of the approval of

a program pursuant to subsection (h)(Z)(A) of

this section for any category (including any

class, type, or size within such category) of

discharge within the State submitting such

program.

(1) Categories of discharges not subject to

requirements

The Administrator shall promulgate regu-

lations establishing categories of discharges

which he determines shall not be subject to

the requirements of subsection (j) of this sec-

tion in any State with a program approved

pursuant to subsection (h)(2)(A) of this section.

The Administrator may distinguish among

classes, types, and sizes within any category of

discharges.

(m) Comments on permit applications or

proposed general permits by Secretary of the

Interior acting through Director of United

States Fish and Wildlife Service

Not later than the ninetieth day after the

date on which the Secretary notifies the Secre-

tary of the Interior, acting through the Direc-

tor of the United States Fish and Wildlife Ser-

vice that (1) an application for a permit under

subsection (a) of this section has been received

by the Secretary, or (2) the Secretary proposes

to issue a general permit under subsection (e)

of this section, the Secretary of the Interior,

acting through the Director of the United

States Fish and Wildlife Service, shall submit

any comments with respect to such application

18a

or such proposed general permit in writing to

the Secretary.

(n) Enforcement authority not limited

Nothing in this section shall be construed

to limit the authority of the Administrator to

take action pursuant to section 1319 of this ti-

tle.

(o) Public availability of permits and per-

mit applications

A copy of each permit application and each

permit issued under this section shall be

available to the public. Such permit applica-

tion or portion thereof, shall further be avail-

able on request for the purpose of reproduc-

tion.

(p) Compliance

Compliance with a permit issued pursuant

to this section, including any activity carried

out pursuant to a general permit issued under

this section, shall be deemed compliance, for

purposes of sections 1319 and 1365 of this ti-

tle, with sections 1311, 1317, and 1343 of this

title.

(q) Minimization of duplication, needless

paperwork, and delays in issuance; agree-

ments

Not later than the one-hundred-eightieth

day after December 27, 1977, the Secretary

shall enter into agreements with the Adminis-

trator, the Secretaries of the Departments of

Agriculture, Commerce, Interior, and Trans-

portation, and the heads of other appropriate

Federal agencies to minimize, to the maximum

19a

extent practicable, duplication, needless pa-

perwork, and delays in the issuance of permits

under this section. Such agreements shall be

developed to assure that, to the maximum ex-

tent practicable, a decision with respect to an

application for a permit under subsection (a) of

this section will be made not later than the

ninetieth day after the date the notice for such

application is published under subsection (a)

of this section.

(r) Federal projects specifically authorized

by Congress

The discharge of dredged or fill material as

part of the construction of a Federal project

specifically authorized by Congress, whether

prior to or on or after December 27, 1977, is

not prohibited by or otherwise subject to regu-

lation under this section, or a State program

approved under this section, or section 1311(a)

or 1342 of this title (except for effluent stan-

dards or prohibitions under section 1317 of

this title), if information on the effects of such

discharge, including consideration of the

guidelines developed under subsection (b)(1) of

this section, is included in an environmental

impact statement for such project pursuant to

the National Environmental Policy Act of 1969

[42 U.S.C.A. § 4321 et seq.] and such environ-

mental impact statement has been submitted

to Congress before the actual discharge of

dredged or fill material in connection with the

construction of such project and prior to either

authorization of such project or an appropria-

tion of funds for such construction.

(s) Violation of permits

20a

(1) Whenever on the basis of any in-

formation available to him the Secretary

finds that any person is in violation of any

condition or limitation set forth in a permit

issued by the Secretary under this section,

the Secretary shall issue an order requiring

such person to comply with such condition

or limitation, or the Secretary shall bring a

civil action in accordance with paragraph

(3) of this subsection.

(2) A copy of any order issued under

this subsection shall be sent immediately

by the Secretary to the State in which the

violation occurs and other affected States.

Any order issued under this subsection

shall be by personal service and shall state

with reasonable specificity the nature of

the violation, specify a time for compliance,

not to exceed thirty days, which the Secre-

tary determines is reasonable, taking into

account the seriousness of the violation and

any good faith efforts to comply with appli-

cable requirements. In any case in which

an order under this subsection is issued to

a corporation, a copy of such order shall be

served on any appropriate corporate offi-

cers.

(3) The Secretary is authorized to com-

mence a civil action for appropriate relief,

including a permanent or temporary in-

junction for any violation for which he is

authorized to issue a compliance order un-

der paragraph (1) of this subsection. Any

action under this paragraph may be

brought in the district court of the United

2la

States for the district in which the defen-

dant is located or resides or is doing busi-

ness, and such court shall have jurisdiction

to restrain such violation and to require

compliance. Notice of the commencement of

such acton! shall be given immediately to

the appropriate State.

(4) Any person who violates any condi-

tion or limitation in a permit issued by the

Secretary under this section, and any per-

son who violates any order issued by the

Secretary under paragraph (1) of this sub-

section, shall be subject to a civil penalty

not to exceed $25,000 per day for each vio-

lation. In determining the amount of a civil

penalty the court shall consider the seri-

ousness of the violation or violations, the

economic benefit (if any) resulting from the

violation, any history of such violations,

any gouod-faith efforts to comply with the

applicable requirements, the economic im-

pact of the penalty on the violator, and

such other matters as justice may require.

(t) Navigable waters within State jurisdic-

tion

Nothing in this section shall preclude or

deny the right of any State or interstate

agency to control the discharge of dredged or

fill material in any portion of the navigable

waters within the jurisdiction of such State,

including any activity of any Federal agency,

and each such agency shall comply with such

1 So in original. Probably should be “action.”

22a

State or interstate requirements both substan-

tive and procedural to control the discharge of

dredged or fill material to the same extent

that any person is subject to such require-

ments. This section shall not be construed as

affecting or impairing the authority of the Sec-

retary to maintain navigation.

REGULATIONS INVOLVED

33 C.F.R. § 323.2 provides, in relevant part:

§ 323.2 Definitions.

For the purpose of this part, the following

terms are defined:

Kk KK *

(eX1) Except as specified in paragraph

(e\(3) of this section, the term fill material

means material placed in waters of the United

States where the material has the effect of:

(i) Replacing any portion of a water

of the United States with dry land; or

(ii) Changing the bottom elevation

of any portion of a water of the United

States.

(2) Examples of such fill material in-

clude, but are not limited to: rock, sand,

soil, clay, plastics, construction debris,

wood chips, overburden from mining or

other excavation activities, and materials

used to create any structure or infrastruc-

ture in the waters of the United States.

(3) The term fill material does not in-

clude trash or garbage.

23a

(f) The term discharge of fill material

means the addition of fill material into waters

of the United States. The term generally in-

cludes, without limitation, the following activi-

ties: Placement of fill that is necessary for the

construction of any structure or infrastructure

in a water of the United States; the building of

any structure, infrastructure, or impoundment

requiring rock, sand, dirt, or other material for

its construction; site-development fills for rec-

reational, industrial, commercial, residential,

or other uses; causeways or road fills; dams

and dikes; artificial islands; property protec-

tion and/or reclamation devices such as riprap,

groins, seawalls, breakwaters, and _ revet-

ments; beach nourishment; levees; fill for

structures such as sewage treatment facilities,

intake and outfall pipes associated with power

plants and subaqueous utility lines; placement

of fill material for construction or maintenance

of any liner, berm, or other infrastructure as-

sociated with solid waste landfills; placement

of overburden, slurry, or tailings or similar

mining-related materials; and artificial reefs.

The term does not include plowing, cultivat-

ing, seeding and harvesting for the production

of food, fiber, and forest products (See § 323.4

for the definition of these terms). See §

323.3(c) concerning the regulation of the

placement of pilings in waters of the United

States.

24a

40 C.F.R. § 122.3 provides, in relevant part:

§ 122.3 Exclusions.

The following discharges do not require

NPDES permits:

* kK K *

(b) Discharges of dredged or fill material

into waters of the United States which are

regulated under section 404 of CWA.

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40 C.F.R. § 232.2 provides, in relevant part:

§ 232.2 Definitions.

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Discharge of fill material. (1) The term

discharge of fill material means the addition of

fill material into waters of the United States.

The term generally includes, without limita-

tion, the following activities: Placement of fill

that is necessary for the construction of any

structure or infrastructure in a water of the

United States; the building of any structure,

infrastructure, or impoundment requiring

rock, sand, dirt, or other material for its con-

struction; site-development fills for recrea-

tional, industrial, commercial, residential, or

other uses; causeways or road fills; dams and

dikes; artificial islands; property protection

and/or reclamation devices such as riprap,

groins, seawalls, breakwaters, and _ revet-

ments; beach nourishment; levees; fill for

structures such as sewage treatment facilities,

intake and outfall pipes associated with power

plants and subaqueous utility lines; placement

25a

of fill material for construction or maintenance

of any liner, berm, or other infrastructure as-

sociated with solid waste landfills; placement

of overburden, slurry, or tailings or similar

mining-related materials; ... and artificial

reefs.

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Fill material. (1) Except as specified in

paragraph (3) of this definition, the term fill

material means material placed in waters of

the United States where the material has the

effect of:

(i) Replacing any portion of a water of

the United States with dry land; or

(ii) Changing the bottom elevation of

any portion of a water of the United States.

(2) Examples of such fill material include,

but are not limited to: rock, sand, soil, clay,

plastics, construction debris, wood chips, over-

burden from mining or other excavation activi-

ties, and materials used to create any struc-

ture or infrastructure in the waters of the

United States.

(3) The term fill material does not include

trash or garbage.

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40 C.F.R. § 401.11 provides, in relevant part:

§ 401.11 General definitions.

** * * *

For the purposes of Parts 402 through 699

of this subchapter:

26a

* Kk KK +

—a —_

(i) The term effluent limitation means any

restriction established by the Administrator

on quantities, rates, and concentrations of

chemical, physical, biological and other con-

stituents which are discharged from point

sources, other than new sources, into naviga-

ble waters, the waters of the contiguous zone

or the ocean.

* KK OK

40 C.F.R. § 434.10 provides, in relevant part:

§ 434.10 Applicability.

This part applies to discharges from any

coal mine at which the extraction of coal is

taking place or is planned to be undertaken

and to coal preparation plants and associated

areas.

40 C.F.R. § 440.102 provides, in relevant part:

§ 440.102 Effluent limitations repre-

senting the degree of effluent reduction

attainable by the application of the best

practicable control technology (BPT).

KKK HK

Except as provided in subpart L of this

part and 40 CFR 125.30 through 125.32, any

existing point source subject to this subpart

must achieve the following effluent limitations

representing the degree of effluent reduction

attainable by the application of the best prac-

ticable control technology currently available

(BPT):

27a

(a) The concentration of pollutants dis-

charged in mine drainage from mines oper-

ated to obtain copper bearing ores, lead

bearing ores, zinc bearing ores, gold bear-

ing ores, or silver bearing ores, or any com-

bination of these ores open-pit or under-

ground operations other than placer depos-

its shall not exceed:

Effluent limitations

Average of daily

Maximum for

values for 30 con-

Effiuent characteristic

a tanted | secutive days

/ Milligrams per liter

FEO vccccovccccccccccccosces 30 20

CU ccccccccccccscccccccsoses .30 15

BD coccccvccccscocccccoccces 1.5 75

FD coccccsccccocccessccesece 6 3

BED coccccccccccsccccceconces 002 .001

WT canniiisiitiiilibanasnaiadia (*) (*)

' Within the range 6.0 to 9.0.

* * * K

40 C.F.R. § 440.104 provides, in relevant part:

§ 440.104 New source performance

standards (NSPS).

Except as provided in Subpart L of this

part any new source subject to this subsection

must achieve the following NSPS representing

the degree of effluent reduction attainable by

28a

the application of the best available demon-

strated technology (BADT):

Ke KK

(b)(1) Except as provided in paragraph (b)

of this section, there shall be no discharge of

process wastewater to navigable waters from

mills that use the froth-flotation process alone,

or in conjunction with other processes, for the

beneficiation of copper, lead, zinc, gold, silver,

or molybdenum ores or any combination of

these ores. The Agency recognizes that the

elimination of the discharge of pollutants to

navigable waters may result in an increase in

discharges of some pollutants to other media.

The Agency has considered these impacts and

has addressed them in the preamble published

on December 3, 1982.

(2)(i) In the event that the annual pre-

cipitation falling on the treatment facility

and the drainage area contributing surface

runoff to the treatment facility exceeds the

annual evaporation, a volume of water

equal to the difference between annual pre-

cipitation falling on the treatment facility

and the drainage area contributing surface

runoff to the treatment facility and annual

evaporation may be discharged subject to

the limitations set forth in paragraph (a) of

this section.

(ii) In the event there is a build up of

contaminants in the recycle water which

significantly interferes with the ore recov-

ery process and this interference can not be

eliminated through appropriate treatment

of the recycle water, the permitting author-

29a

ity may allow a discharge of process

wastewater in an amount necessary to cor-

rect the interference problem after installa-

tion of appropriate treatment. This dis-

charge shall be subject to the limitations of

paragraph (a) of this section. The facility

shall have the burden of demonstrating to

the permitting authority that the discharge

is necessary to eliminate interference in

the ore recovery process and that the inter-

ference could not be eliminated through

appropriate treatment of the recycle water.

* * KK *