TESTIMONY OF
BENJAMIN H. GRUMBLES
DEPUTY ASSISTANT ADMINISTRATOR
OFFICE OF WATER
U.S. ENVIRONMENTAL PROTECTION AGENCY
AND
GEORGE S. DUNLOP
DEPUTY ASSISTANT SECRETARY OF THE
ARMY
(POLICY AND LEGISLATION)
BEFORE THE
SUBCOMMITTEE ON CLEAN AIR , WETLANDS,
AND CLIMATE CHANGE
OF THE
COMMITTEE ON ENVIRONMENT AND PUBLIC
WORKS
UNITED STATES SENATE
June 6, 2002
Good morning, Mr. Chairman and members of the
Committee. We welcome the opportunity
to present joint testimony on the national implications of the recent
Department of the Army (Army) and U.S. Environmental Protection Agency (EPA)
Clean Water Act (CWA) rulemaking defining the terms “fill material” and
“discharge of fill material” for the Section 404 program.
In today’s testimony,
we will explain the rule, its history, and how it will result in more effective
regulation of activities under the CWA, leading to a reduction in environmental
impacts. We also will address the
ramifications of the May 8, 2002, decision in Kentuckians for the
Commonwealth, Inc. v. Rivenburgh [No.
2:01-770 (S.D.W.Va.)] for the rule and how the agencies intend to
proceed. Army and EPA are committed to
protecting this nation’s aquatic resources consistent with the requirements of
the CWA and the final fill rule enhances our ability to do just that.
BACKGROUND
Before discussing the specifics of the rulemaking, let
us first explain the underlying context.
The definition of “fill material” has a long history that reflects the
complexity associated with the purposes of the CWA. The CWA reflects a national commitment to protect the nation’s
aquatic resources, but it establishes that commitment in a context that also
recognizes that our waters are used for a variety of purposes. The CWA establishes permitting programs that
are designed to strike the appropriate balance between those competing
purposes. The definition of “fill
material” is indicative of the challenge that exists in ensuring that all of
the goals of the CWA are met.
The CWA governs the
“discharge” of “pollutants” into “navigable waters,” which are defined as
“waters of the United States.”
Specifically, Section 301 of the CWA generally prohibits the discharge
of pollutants into waters of the U.S., except where such discharges are
authorized under either CWA Section 404, which regulates the discharge of
dredged or fill material, or CWA Section 402, which regulates all other
pollutants under the National Pollutant Discharge Elimination System (NPDES)
program.
These two permit
programs are designed to address different types of materials. In keeping with the fundamental difference
in the nature and effect of the discharge that each program was intended by
Congress to address, Sections 404 and 402 employ different approaches to
regulating the discharges to which they apply.
The Section 402 program is focused on (although not limited to)
discharges such as wastewater discharges from industrial operations and sewage
treatment plants, stormwater and the like.
Pollutant discharges are controlled under the Section 402 program
principally through the imposition of effluent limitations, which are
restrictions on the “quantities, rates, and concentrations of chemical,
physical, biological and other constituents which are discharged from point
sources into navigable waters” [CWA Section 502(11)]. Section 402 permits must include effluent limitations that
reflect treatment with available pollution control technology, and any more stringent
limitations necessary to meet water quality standards for the receiving water
[CWA Section 301(b)]. There are no
statutory or regulatory provisions under the Section 402 program designed to
address discharges that convert waters of the U.S. to dry land. Moreover, the Section 402 permitting process
does not require an evaluation of alternatives to a proposed discharge or
mitigation for unavoidable impacts.
In contrast, the
Section 404 permitting program does specifically contemplate the possible conversion
of waters to non-waters and is designed, therefore, to evaluate and provide for
ways to avoid, minimize, and compensate for the impacts of such
conversions. Just because material is
characterized as "fill material" does not mean that a Section 404
permit will necessarily authorize a particular discharge -- the permit process
carefully screens proposed discharges and applies the 404(b)(1) Guidelines,
which provide a comprehensive means of evaluating whether any discharge of
fill, regardless of its purpose, is environmentally acceptable. First, a discharge is categorically
prohibited if it would significantly degrade a water of the United States. In addition, no discharge may be allowed if
there is a less environmentally damaging practicable alternative to placing the
material in waters of the United States.
Finally, where there is no other alternative, the discharge may be
allowed if the permit applicant has taken all practicable steps to minimize the
amount of material discharged, and compensate for the remaining, unavoidable
impacts through mitigation.
This comprehensive
environmental evaluation is specifically suited to addressing activities whose
effect is to convert waters to dry land, because it ensures the associated
habitat modification is avoided, minimized and compensated for to the maximum
extent practicable. The sufficiency of
this permitting process to provide appropriate environmental protection for
waters of the U.S. does not depend on the purpose of the discharge of fill
material. The Section 404(b)(1)
Guidelines also provide for consideration of the effects of chemical
contaminants on water quality in a number of ways, specifically requiring
compliance with applicable State water quality standards [40 CFR 230.10(b)(1)],
toxic effluent limits or standards established under CWA Section 307 [40 CFR
230.10(b)(2)], and appropriate use of chemical and biological testing to
evaluate contaminant effects [40 CFR
230.11(d) and (e); 230.60].
However, because Section 404 was intended by Congress to provide a
vehicle for regulating materials whose effects include the physical conversion
of waters to non-waters or other physical alterations of aquatic habitat, the Section 404(b)(1)
Guidelines go beyond such a water quality based approach to require careful
consideration of the effects of the discharge on the aquatic ecosystem as a
whole, as well as evaluation of alternatives to the discharge and measures to
minimize and compensate for unavoidable adverse effects. Although
Section 404 provides for the regulation of discharges of fill material,
Congress did not define “fill material” in the Act, leaving it to the agencies
to define the term consistent with the overall goals of the Act. Prior to 1977, the Corps and EPA had the
same "fill material" definition.
We both defined "fill material" as "any pollutant used to
create fill in the traditional sense of replacing an aquatic area with dry land
or of changing the bottom elevation of a water body for any purpose. . .
." [40 FR 31325 (July 25, 1975); 40 FR 41291 (September 5, 1975)].
In 1977, the Corps
amended its definition of "fill
material" to add a “primary purpose test,” which focused on whether the
primary purpose of the material was to raise the bottom elevation of a water or
convert wet to dry land. The definition
also specifically excluded material that was discharged primarily to dispose of
waste [42 FR 37130 (July 19, 1977)].
This change was adopted by the Corps because it recognized that some
discharges of solid waste materials technically fit the definition of fill
material; however, the Corps believed that such waste materials should not be
subject to regulation under the CWA Section 404 program.1 For example, the Corps sought to exclude the
disposal of trash and garbage from regulation under section 404.
However, the
definition of "fill material" is not just significant to the Section
404 program. Because Section 402 is
applicable to all pollutants other than dredged or fill material, the
definition of what does or does not constitute "fill material"
impacts on the 402 program as well.
Rather than change its regulations to adopt a "primary purpose
test" similar to that adopted by the Corps, the EPA regulations retained a
focus on the effect of the material (an “effects-based test”) in determining
whether a discharge would be subject to Section 404 or Section 402. The EPA regulations provided that any
material that has the effect of raising the bottom elevation of a water body or
converting wet to dry land is “fill material.”2 EPA retained the effects-based approach
because it avoids the need to ascertain the “purpose” of a project in order to
determine regulatory requirements, and ensures that discharges with similar
environmental effects receive similar regulatory treatment.
Over time, the
agencies began to see evidence that their differing definitions created
uncertainty among both regulators and members of the regulated public. In 1986, the agencies entered into a
Memorandum of Agreement (1986 MOA)3 in an effort to clarify when Section
402 versus Section 404 was the appropriate framework. Nevertheless, there continued to be regulatory uncertainty.
In addition, the
purpose test lends itself to the possible exclusion of materials from Section
404 that are most commonly used for the very purpose of raising the elevation
of an area (i.e., of filling a water of the U.S.) if the materials are a waste
product of some other activity, and thus can lead to incongruous results. For example, some might argue that test
would preclude the Corps from allowing the excess rock and dirt that is
generated on road construction projects in steep slope areas to be used as
“fill material” because it is a waste by-product of that activity. Nevertheless, the very same material that is
discharged under different circumstances would be generally regulated as fill
material.
The uncertainty caused
by differing definitions, in general, and the “primary purpose test,” in
particular, has also engendered litigation.
We are concerned that if inconsistencies and ambiguities in the
regulatory definitions of “fill material” are not corrected, further litigation
will arise and future court decisions could reduce the ability of the CWA
Section 404 program to protect the quality of the aquatic environment, and the
overall public interest.
The court decision
that most clearly illustrates the serious problems caused by the "primary
purpose test" is the Ninth Circuit Court of Appeals decision in Resource
Investments Incorporated v. U.S. Army Corps of Engineers, 151 F.3d 1162
(9th Cir. 1998) (the RII case).
This case involved a CWA Section 404 permit application for a solid
waste landfill proposed to be built in waters of the U.S. located in the State
of Washington. The Corps’ Seattle
District Engineer denied the Section 404 permit, on the grounds that a solid
waste landfill at that location could contaminate an important “sole source”
aquifer, and on the basis that environmentally safer, practicable alternatives
were available to handle the region’s solid waste. When the permit applicant sued, the District Court upheld the
Corps’ permit denial, but the Ninth Circuit Court of Appeals reversed.
One of the Ninth
Circuit’s conclusions in the RII decision was that the “primary purpose”
test in the Corps’ definition of the term “fill material” meant that the Corps
could not require a CWA Section 404 permit for pollutants that the applicant
proposed to discharge into waters of the U.S. for construction of a proposed
landfill. Based on the Corps’
definition of fill material, the Ninth Circuit determined that the layers of
gravel, low permeability soil, and synthetic liner that would underlie the
solid waste landfill did not constitute "fill material." The Court reasoned that the “primary
purpose” of these materials (e.g., soil and gravel) to be placed in the waters
of the U.S. was not to change the bottom elevation of a water body or replace
an aquatic area with dry land, but to create a leak detection and collection
system.
The Ninth Circuit’s
decision in the RII case illustrates the inherent problems in the
“primary purpose” test. In RII,
the litigant was successful in excluding from regulation under the CWA Section
404 program traditional fill material, by alleging an alternative primary
purpose. Typically fill serves some purpose other than just
creating dry land or changing a water body's bottom elevation. Thus, if this approach to interpreting the
Corps’ “primary purpose test” were to be taken to its extreme conclusion, the
unreasonable end result could be that almost any traditional fill material
proposed to be placed in waters of the U.S. does not need a Section 404
permit. Such an interpretation would
be clearly contrary to the intent of Congress expressed in the plain words of
CWA Sections 404 and 301, which require that any “fill material” to be placed
in any water of the U.S. must be legally authorized by a permit under CWA
Section 404.
Similarly, Bragg v.
Robertson, 54 F. Supp. 2d 563 (S.D. W. VA. 1999) (and now the Rivenburgh
case) are further evidence of how the uncertainty in the regulatory context
resulted in a misinterpretation of the legal framework governing this
program. In Bragg, despite its
previous approval of a settlement agreement recognizing use of Section 404 to
regulate overburden, the District Court, in a decision addressing claims under
State law, stated in dicta that under the then-existing Corps
regulations Section 404 was not the appropriate framework for regulating
overburden because it was waste material.
Although that decision was ultimately vacated by the Fourth Circuit
Court of Appeals on jurisdictional grounds, the same court in its May 8, 2002,
decision in the Rivenburgh case went even further and concluded that the
CWA itself did not contemplate regulation of waste discharges under Section
404. We will further discuss the Rivenburgh
decision later in our testimony, but decisions such as these underscore why a
clear statement of regulatory policy, which the agencies have attempted to do
in our recent rule, is essential.
For some time, there
has been strong public concern surrounding the fill rule and related
issues. In the past, both industry and
environmental groups have urged the agencies to reconcile their differing
definitions of “fill material.”
Industry was frustrated by the confusion and additional time that was
sometimes necessary to process applications as the agencies sorted out their
different regulatory perspectives. At
one time, environmental groups believed that EPA’s effects-based approach to
the definition of fill material was more environmentally protective and went so
far as bring suit in 1982 to have the
Corps definition declared unlawful and invalid and to enjoin its
implementation.
APRIL 2000 PROPOSAL
For the reasons just
characterized, the Clinton Administration, on April 20, 2000, proposed a joint
rule to revise the Army and EPA regulations defining the term “fill
material.” Consistent with the terms of
the settlement agreement entered in the Bragg litigation between the
federal defendants and the plaintiffs, the proposal made clear that discharges
into waters of the U.S. of coal mining overburden, and berms, dams, or roads
associated with the sedimentation ponds would continue to be regulated as
"fill material." In
developing the regulatory revisions, the Army and EPA sought to improve
regulatory clarity in a manner that is generally consistent with EPA's
long-standing definition and current practice.
The goal was to maintain or improve existing environmental protections
in a manner that would avoid major disruptions or reallocations of
responsibilities between the ongoing Section 404 and 402 programs and to ensure
that no new types of pollutant discharges would now become allowable. The approach adopted by the proposal, and
ultimately the final rule, best protects the environment, minimizes potential
program disruptions, and properly reflects the differing regulatory approaches
established by Sections 402 and 404 of the CWA.
The proposal was to
amend both the Army and EPA definitions of "fill material" to provide
a single definition of that term. The
proposal, which was consistent with EPA's long-standing definition and the
current practice of the agencies, would result in material that has the effect
of filling waters of the U.S. being deemed "fill material" and thus
subject to evaluation under the CWA Section 404(b)(1) Guidelines, which were
specifically written to address material with that type of effect. At the same time, the proposal would have
specifically excluded from the definition of "fill material"
discharges subject to EPA proposed or promulgated effluent limitation
guidelines and standards under CWA Sections 301, 304, and 306, or covered by a
NPDES permit issued under CWA Section 402.
The proposed revisions also contained a change to the definition of the
term “discharge of fill material,” in order to provide further clarification
that landfill construction and placement of coal mining overburden are
regulated under Section 404. In
addition, the preamble to the proposal sought comment on whether to amend the
Corps' regulations so as to provide a definition of "unsuitable fill
material" that could not receive a Section 404 permit, and set out a
potential definition for that term.
The proposal
originally was issued with a 60-day public comment period. However, in response to requests from the
public, the agencies extended the comment period for an additional 30 days,
providing a total comment period of 90 days, which closed on July 19, 2000. We received over 17,200 comments on the
proposed rule, most of which consisted of identical or substantially identical
e-mails, letters, and postcards opposing the rule and generated from websites
that enabled the sender to submit an e-mail or fax by simply typing in their
name and clicking a button.
Approximately 500 of the 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 regarding treatment of unsuitable fill
material. Except for several
representatives of landfill interests,
comments from the regulated community generally supported the proposal, 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.
MAY, 2002 FINAL RULE
The comments on the
April 2000 proposal addressed a number of issues briefly discussed below,
including adoption of a single consistent EPA and Corps definition of “fill
material,” the use of an effects-based test for defining “fill material,”and
the elimination of the waste exclusion from the Corps’ definition. This latter issue was a matter of particular
concern to the environmental community.
With regard to
adoption of a single EPA and Corps definition, the majority of the comments
from both the environmental and industry perspectives expressed the general
view that the agencies should have the same definitions for the key
jurisdictional terms “fill material” and “discharge of fill material.” Many such comments also noted that the
differences between the Corps’ and EPA’s rules have historically caused
confusion for the regulated community.
The final rule, like the proposal, provides for a consistent Corps and
EPA definition of these key terms.
Most of the comments
that addressed use of an effects-based test for defining “fill material”
expressed support for its use, as well as for elimination of the “primary
purpose” test from the Corps' definition.
However, there were some commenters who disagreed with such an
approach. They gave a variety of reasons
for their opposition, believing elimination of the primary purpose test from
the Corps’ definition was unnecessary, that purpose-based tests were
successfully used in other statutes and elsewhere in the Section 404(b)(1)
Guidelines, that alternative ways of resolving the issue without a rule change
were available, and that the proposal represented an expansion of Section 404
jurisdiction.
We carefully
considered such comments, but concluded that the objective standard created by
an effects-based test will yield more consistent results in determining what is
“fill material” and will provide greater certainty in the implementation of the
program. An objective, effects-based
standard also helps ensure that discharges with similar environmental effects will
be treated in a similar manner under the regulatory program. As previously discussed, the subjective,
purpose-based standard led in some cases to inconsistent treatment of similar
discharges, a result which hampers effective implementation of the CWA. In addition, despite previous efforts to
resolve the uncertainties resulting from the differing Corps and EPA
definitions without rulemaking (e.g., the 1986 MOA), regulatory uncertainties
continued to arise. Thus, the final
rule, like the proposal, uses an effects-based approach to provide a single
definition of the term "fill material."
In particular, the
final rule defines “fill material” as material placed in waters of the U.S.
where the material has the effect of either replacing any portion of a water of
the United States with dry land or changing the bottom elevation of any portion
of a water. This approach is similar to
EPA's long-standing definition of the term "fill material." For purposes of increased clarity, the final
rule also contains specific examples of “fill material” including 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.
With regard to
elimination of the waste exclusion from the Corps’ definition, comments from
the environmental community and general public strongly opposed its
elimination. Some of these comments
recommended that the agencies include in the regulation a general exclusion
from the definition of “fill material” for any discharge of “waste.” Some commenters expressed the view that
deletion of the waste exclusion language from the Corps’ regulations violates
the CWA, and pointed to the decisions in RII and Bragg to support
that view. Many of these comments
acknowledged, however, that when waste is discharged for a purpose other than
mere disposal, (e.g., to create fast land for development), review under the
Section 404 permit process in accordance with the Section 404(b)(1) Guidelines
adequately protects the environment and is consistent with the CWA.
We believe that a
categorical exclusion for waste would be over-broad, and the final rule thus
does not contain such an exclusion.
Simply because a material is disposed of for purposes of waste disposal
does not, in our view, justify excluding it categorically from the definition
of "fill material." Some
waste (e.g., mine overburden) consists of material such as soil, rock and
earth, that is similar in its characteristics and effects to “traditional” fill
material used for purposes of creating fast land for development. In addition, other kinds of waste having the
effect of fill (e.g., certain other mining wastes, concrete, rubble) also can
be indistinguishable either upon discharge or over time from structures created
for purposes of creating fast land.
Given the similarities of some discharges of waste to “traditional”
fill, we declined to categorically exclude all wastes from the definition,
allowing the appropriateness of the material to be assessed in the permit
review process. The final rule,
however, was modified in light of the comments to specifically exclude trash or
garbage.
The proposed rule's
preamble addressed a related issue of whether to define "unsuitable fill
material," and contained an example definition of that term. The comments on that proposal expressed
almost unanimous opposition to this "unsuitable fill material
concept," in some cases viewing it as too limited and an inadequate substitute
for the elimination of the waste exclusion, in others' opinion, leaving too much discretion as to what is
“unsuitable fill material,” and impermissibly rejecting materials out of hand
that might be acceptable when actually evaluated under the permitting
process.
However, many of the
comments received did assert that various types of trash or garbage are not
appropriate to use, as a general matter, for fill material in waters of the
U.S. We believe these impacts can be
generally avoided because there are alternative clean and safe forms of fill
material that can be used to accomplish project objectives and because there
are widely available landfills and other approved facilities for disposal of
trash or garbage. In light of this, the
final rule was modified to add an exclusion of trash and garbage from the
definition of "fill material."
In addition to the
foregoing issues, the final rule itself, unlike the proposal, does not contain
an exclusion from "fill material" for discharges covered by effluent
limitation guidelines or standards or NPDES permits. This change was made in light of comments expressing concern that
the proposed rule language regarding the exclusion was susceptible to differing
interpretations and would result in uncertainty with respect to the regulation
of certain discharges. However, while
the language in question does not appear in the final rule itself, the preamble
does emphasize that the effects-based definition is consistent with EPA's
long-standing approach to defining fill material, and generally is intended to
maintain our existing approach to regulating pollutants under either Section
402 or 404 of the CWA. In particular,
as noted in the preamble, the final rule does not change any determination EPA
has made regarding discharges that are subject to effluent limitation
guidelines and standards, which will continue to be regulated under Section 402
of the CWA. In addition, the preamble
notes the final rule does not alter the manner in which water quality standards
currently apply under the Section 402 or the Section 404 programs.
With regard to solid
waste landfills and the RII case, comments from the regulated community
asserted that the regulation under Section 404 of discharges for creation of
infrastructure associated with solid waste landfills (e.g., roads, liners,
berms, dikes) was inconsistent with the court’s decision in RII. However, as explained in considerable detail
in the preamble to the final rule, we do not agree, and instead believe that an
effects-based test is the appropriate means of evaluating whether a pollutant
is “fill material.” Like the proposal,
the final rule thus makes clear 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 infrastructure
associated with solid waste landfills are discharges of fill material subject
to the Section 404 program. These types
of discharges have been consistently subject to regulation under Section 404,
and the final rule clarifies that the important environmental protections of
the Section 404 program continue to apply to such discharges.
RELATIONSHIP OF RULEMAKING AND MOUNTAINTOP MINING
We recognize that this
rulemaking has been the subject of considerable public attention and
controversy, largely because opponents of the practice of mountaintop mining
have viewed this issue as an opportunity to halt that practice. Notably, neither this rule nor the CWA are
the principal vehicle provided by Congress for regulating mountaintop mining
activities. Rather, the responsibility
was delegated to the Secretary of the Interior, through the Office of Surface
Mining, under the Surface Mining Control and Reclamation Act (SMCRA). Nevertheless, this rulemaking has been
incorrectly painted as being designed to facilitate the continuation of
mountaintop mining. In actuality, it
was undertaken in light of years of past experience in order to enhance regulatory
clarity and improve environmental protection.
However, because this rulemaking has been depicted as linked to
promotion of mountaintop mining, we would like to take this opportunity to
briefly discuss the Administration's efforts to provide for more effective and
environmentally sound management of that practice under the existing regulatory
framework.
Consistent with the
Bragg settlement agreement, we are continuing to develop a programmatic
Environmental Impact Statement (EIS) that will consider appropriate changes to agency
policies, guidance, and coordinated agency decision-making processes to reduce
the adverse environmental effects to waters of the U.S. and to fish and
wildlife resources from mountaintop mining operations, and to other
environmental resources that could be affected by the size and location of fill
material in valley fill sites. This is
an inter-agency activity being undertaken by EPA, the Corps, the Office of
Surface Mining (OSM), and the U.S. Fish and Wildlife Service (FWS), in
cooperation with the State of West Virginia.
In addition, on
January 15, 2002, the Corps modified Nationwide Permit 21 (NWP 21), which is
the CWA Section 404 general permit most often used to authorize discharges of
dredged or fill material associated with surface mining activities. Under the revised NWP, the District Engineer
will make a specific determination on a case-by-case basis that the proposed
activity complies with the terms and conditions of the NWP and that adverse
effects to the aquatic environment are minimal both individually and
cumulatively. Under revised NWP 21, the
Corps also has clarified that it will require appropriate mitigation for
impacts to aquatic resources.
In light of regional
concerns about impacts in Appalachia from surface mining activities, Corps
Headquarters has requested the relevant District Engineers to establish
regional conditions in Appalachian States on the use of NWP 21 that are
consistent with the provisions of the Federal District court approved
settlement in the Bragg litigation in West Virginia, which generally
limits use of NWP 21 for valley fills to watersheds draining 250 acres or
less. As part of this, the Corps will
make a project-specific evaluation of the cumulative loss of aquatic resources
within the affected watershed. We
believe these NWP changes, and continued development of the programmatic EIS,
will further improve environmental protection with regard to surface mining
activities in Appalachia.
In addition to the
CWA-related activities described above, the Office of Surface Mining is
responsible for developing the rules that govern mountaintop removal coal
mining under the Surface Mining Control and Reclamation Act (SMCRA). Most Appalachian States administer these
rules through programs delegated to them by OSM.
RIVENBURGH DECISION
The regulatory
uncertainty associated with the differing Corps and EPA fill material
definitions most recently has arisen again in Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, in which plaintiff challenged a Corps’
Section 404 authorization under the then-existing regulations for the discharge
of overburden associated with a mountaintop mining coal operation. Following initiation of this lawsuit, the
plaintiff moved for summary judgment on several grounds, including the claim
that the Corps lacked authority under the then-existing Corps definition of
fill material to authorize the placement of valley fill in waters of the U.S.
for purposes of waste disposal. The
government argued that the Corps’ longstanding practice of regulating valley
fills under Section 404 was consistent with the CWA, particularly in light of
EPA’s then-existing definition of fill material as any pollutant that replaces
a water with dry land or raises the water’s bottom elevation for any purpose. On May 6, the Government informed the court
that the Corps and EPA had completed rulemaking reconciling the agencies’
differing definitions which adopted an effects-based approach to defining the
term.
On May 8, 2002, the
court issued a decision finding that the Corps lacks the statutory authority to
regulate any material discharged solely for purposes of waste disposal. While the new regulation was not challenged
in this case, the court nonetheless stated that it was inconsistent with the
CWA and exceeded the agencies' legal authority. The court decision enjoins the Corps from "issuing any
further Sec. 404 permits that have no primary purpose or use but the disposal
of waste.”
We believe that the
court misconstrued the CWA and its legislative history. EPA and the Corps explained in detail in the
recent rulemaking the legal and policy basis for the agencies’ revised
definition of fill material, and we continue to believe that new definition is
in full accord with the CWA. In light
of this, USDOJ has requested a stay of the court's injunction because its
economic and social impacts warrant such a stay pending appeal. In addition, we have argued we will likely
prevail on the merits because (1) the Corps does have authority to issue
permits under CWA 404 to allow for the discharge of mining overburden; (2) the
court's approval of the Settlement Agreement in Bragg bars relitigation of that
issue; and (3) the Court's injunction is overly broad. We also have requested that the court
clarify the scope of its injunction. In
addition, intervenors, including the Kentucky Coal Association, have moved to
stay the injunction. Plaintiffs oppose
the stay and seek to expand the injunction.
Briefing was completed on May 28 and we are monitoring a decision now.
CONCLUSION
This rulemaking is
about the need to reconcile differing regulatory definitions so as to provide
consistency and regulatory predictability.
In order to achieve that goal, the definition adopted is fully
consistent with EPA's existing definition and the Corps’ longstanding practice,
and further ensures that material with the effect of filling waters of the U.S.
is regulated under the regulatory regime best designed to deal with those
effects -- Section 404 of the CWA.
This concludes our
testimony and we would be pleased to answer any questions you might have.
* * *
1 The
Corps’ definition of “fill material” adopted in 1977 reads as follows:
(e)
The term “fill material” means any material used for the primary purpose
of replacing an aquatic area with dry land or of changing the bottom elevation
of an [sic] water body. The term does
not include any pollutant discharged into the water primarily to dispose of
waste, as that activity is regulated under section 402 of the Clean Water
Act.” 33 CFR 323.2(e)
(2001)(emphasis added).