Claudia Copeland
Specialist in Resources and Environmental Policy
In May 2002, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers
Specialist in Resources and Environmental Policy
In May 2002, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers
(the Corps) announced a regulation
redefining two
key terms, “fill material”
and “discharge
of fill
material,” in rules that implement Section
404 of the Clean Water Act. This report discusses the
2002 rule, focusing on how
it changes which material and types
of activities are regulated under Section
404 and the significance
of
these issues,
especially for the
mining industry.
The Clean Water Act
contains two different
permitting regimes: (1)
Section 402 permits
(called
the National Pollutant Discharge Elimination System,
or NPDES, permit program) address
the discharge of most pollutants,
and (2) Section 404 permits address
the discharge
of dredged or fill
material into navigable waters
of
the United States at specified
sites. These
permit programs differ in
nature
and approach. The NPDES program focuses
on the effects
of pollutant discharges
on water quality. The
404 program considers effects on the
aquatic ecosystem and
other national and resource interests.
The Corps and EPA have complementary roles under Section 404.
Landowners seeking to
discharge dredged or fill material must obtain a permit from the Corps
under Section
404. EPA provides environmental
guidance on 404 permitting. The
determination of
what
is “fill material”
is important, since fill material is subject to 404
permit
requirements, while
discharge
of non-fill material is
regulated by EPA under the
Section 402 NPDES permit
program.
The revised rule
was
intended to clarify the regulatory definition
of fill
material by replacing two
separate and inconsistent definitions with
a single, common definition. It expanded the
types of discharge
activities that are subject to
Section
404 specifically to
include construction or maintenance of the
infrastructure
associated with solid waste landfills
and mining overburden.
Further, the revised rule
removed regulatory language which previously excluded “waste” discharges
from
Section 404 jurisdiction, a change that some
argue allows
the use of 404 permits to authorize
certain discharges
that harm the aquatic
environment.
The final
rule completed a rulemaking begun in April 2000
by the Clinton Administration. Its proposal had generated
support from the mining industry and other regulated groups, and considerable
opposition from environmental groups. The
final rule is substantially similar to the
earlier proposal. Environmental groups say the rule
allows
for inadequate regulation of certain
disposal activities,
including disposal of coal mining waste. The
Clinton
and Bush Administrations said that the
regulatory changes
were intended to conform Corps and EPA
regulations to existing lawful practice,
but opponents contend that those
practices violate the
Clean Water Act. Legislation
to reverse the revised
regulations
has been introduced
in the 113th
Congress (H.R. 1837, the Clean Water Protection Act). Similar legislation
was introduced
in
previous
Congresses. The Obama Administration’s views on these
issues are unknown for
now.
Date of Report: August 21, 2013
Number of Pages: 13
Order Number: RL31411
Price: $29.95
To Order:
For email and phone orders, provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Posts
