Proposed Revisions to the Clean Water Act Regulatory Definitions of ``Fill Material'' and ``Discharge of Fill Material''

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: April 20, 2000 (Volume 65, Number 77)]
[Proposed Rules]
[Page 21291-21300]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ap00-23]

[[Page 21291]]

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Part V

Department of Defense

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Department of the Army, Corps of Engineers

33 CFR Part 323

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Environmental Protection Agency

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40 CFR Part 232

Proposed Revisions to the Clean Water Act Regulatory Definitions of
``Fill Material'' and ``Discharge of Fill Material''; Proposed Rule

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 323

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 232

[FRL-6582-8]

Proposed Revisions to the Clean Water Act Regulatory Definitions
of ``Fill Material'' and ``Discharge of Fill Material''

AGENCIES: U.S. Army Corps of Engineers, Department of the Army, DOD;
and Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Department of the Army (Army) and the Environmental
Protection Agency (EPA) today are jointly proposing to revise their
Clean Water Act (CWA) regulations defining the term ``fill material.''
At present, the Army and EPA definitions of ``fill material'' differ
from each other, and this has resulted in regulatory uncertainty and
confusion. The existing Army definition defines ``fill material'' as
any material used for the primary purpose of replacing an aquatic area
with dry land or of changing the bottom elevation of a water body, and
specifically excludes from that definition any material discharged into
the water primarily to dispose of waste, as that activity is regulated
under section 402 of the Clean Water Act. The existing EPA definition
defines ``fill material'' as any pollutant which replaces a portion of
the waters of the U.S. with dry land or which changes the bottom
elevation of such waters, regardless of the purpose of the discharge.
Today's proposal would amend both the Army and EPA definitions of
``fill material'' to provide a single definition of that term, and thus
ensure proper, consistent, and more effective regulation under the CWA
of materials that have the effect of replacing any portion of a water
of the U.S. States with dry land or of changing the bottom elevation of
any portion of a water of the U.S. Today's proposal also would make a
change to the definition of the term ``discharge of fill material'' in
order to provide further clarification of this issue.

DATES: Written comments must be submitted by June 19, 2000.

ADDRESSES: Send written comments on the proposed rule to the Office of
the Chief of Engineers, ATTN CECW-OR, 20 Massachusetts Avenue,
Washington, DC 20314-1000.
We request that commenters submit any references cited in their
comments. We also request that commenters submit an original and 2
copies of their written comments and enclosures. Commenters that want
receipt of their comments acknowledged should include a self-addressed,
stamped envelope. All written comments must be postmarked or delivered
by hand. No facsimiles (faxes) will be accepted.
A copy of the supporting documents for this proposed rule is
available for review in Room 6225 at the U.S. Army Corps of Engineers'
Pulaski Building, located at 20 Massachusetts Avenue, Washington, DC
20314-1000. For access to docket materials, call (202) 761-0199 between
9 a.m. and 3:30 p.m. for an appointment. Comments received on the
proposed rule will also be available for examination in Corps District
or Division offices.

FOR FURTHER INFORMATION CONTACT: For information on the proposed rule,
contact either Mr. Thaddeus Rugiel, U.S. Army Corps of Engineers, ATTN
CECW-OR, 20 Massachusetts Avenue, Washington, DC 20314-1000, phone:
(202) 761--0199, e-mail: Thaddeus. J.Rugiel@ HQ02.USACE.ARMY.MIL, or
Mr. John Lishman, U.S. Environmental Protection Agency, Office of
Wetlands, Oceans and Watersheds (4502F), Ariel Rios Building, 1200
Pennsylvania Avenue NW, Washington, DC 20460, phone: (202) 260-9180, e-
mail: lishman.john@ epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Plain Language

In compliance with President Clinton's June 1, 1998, Executive
Memorandum on Plain Language in government writing, this preamble is
written using plain language. Thus, the use of ``we'' in this action
refers to EPA and the U.S. Army Corps of Engineers (Corps), and the use
of ``you'' refers to the reader.

B. Potentially Regulated Entities

Persons or entities that discharge material to waters of the U.S.
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
water of the U.S. could be regulated by today's proposed rule. The CWA
generally prohibits the discharge of pollutants into waters of the U.S.
without a permit issued by EPA or a State approved by EPA under section
402 of the Act, or, in the case of dredged or fill material, by the
Corps or an approved State under section 404 of the Act. Today's
proposal addresses the CWA section 404 program's definitions of ``fill
material'' and ``discharge of fill material,'' which are important for
determining whether a particular discharge is subject to regulation
under CWA section 404. In developing today's proposal to reconcile the
agencies differing definitions, we have carefully considered our
current regulatory practice and the terms of a 1986 Memorandum of
Agreement Between the Assistant Administrators for External Affairs and
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 Solid Waste
MOA''). The 1986 Solid Waste MOA sets out a number of factors to help
determine whether material is subject to the CWA under section 404 or
402. Today's proposal does not alter current practice, but rather is
intended to clarify what constitutes ``fill material'' subject to CWA
section 404. Examples of entities potentially regulated include:

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Examples of potentially affected
Category entities
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State/Tribal governments or instrumentalities.............................. State/Tribal agencies or
instrumentalities that discharge
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 a
water of the U.S.
Local governments or instrumentalities..................................... Local governments or
instrumentalities that discharge
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 a
water of the U.S.
Federal government agencies or instrumentalities........................... Federal government agencies or
instrumentalities that discharge
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 a
water of the U.S.

[[Page 21293]]

Industrial, commercial, or agricultural entities........................... Industrial, commercial, or
agricultural entities that
discharge 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 a water of the U.S.
Land developers and landowners............................................. Land developers and landowners that
discharge 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 a water of the U.S.
----------------------------------------------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that are likely to be regulated by
this action. This table lists the types of entities that we are now
aware of that could potentially be regulated by this action. Other
types of entities not listed in the table could also be regulated. To
determine whether your organization or its activities are regulated by
this action, you should carefully examine the applicability criteria in
Sec. 230.2 of Title 40 of the Code of Federal Regulations, as well as
the preamble discussion in section II of today's proposal. If you have
questions regarding the applicability of this action to a particular
entity, consult the persons listed in the preceding FOR FURTHER
INFORMATION CONTACT section.

C. Overview of Clean Water Act

The CWA is the primary federal statute addressing the discharge of
pollutants to waters of the U.S. Section 301(a) of the CWA generally
prohibits such discharges except as may be authorized by a permit
issued under the Act. Two different permitting regimes are created by
the Act: (1) section 404 permits, primarily administered by the Corps,
addressing the discharge of dredged or fill material, and (2) section
402 permits (commonly referred to as National Pollutant Discharge
Elimination System, or ``NPDES'' permits), administered by EPA and the
States, which address the discharge of all other pollutants. The CWA
defines the term ``pollutant'' to include materials such as rock, sand,
and cellar dirt that often serve as ``fill material.'' The CWA,
however, does not define the term ``fill material,'' leaving it to the
agencies to adopt a definition consistent with the statutory language
and scheme. Providing a clear and consistent definition for the term
``fill material'' under the CWA is important in determining whether a
proposed discharge of a pollutant is subject to regulation under
section 404 or section 402.
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. See, e.g., CWA sections 304 (b) and (d) and 402(p). 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.
The section 404 permitting program differs from the section 402
program in several fundamental respects. First, section 404 focuses
exclusively on two materials: dredged material and fill material. The
term ``fill material'' clearly contemplates material that fills in a
water body, and thereby converts it to dry land or changes the bottom
elevation. Fill material differs fundamentally from the types of
pollutants covered by section 402 because the principal environmental
concern is the loss of a portion of the water body itself. For this
reason, the section 404 permitting process focuses on different
considerations than the section 402 permitting program. Section 404(b)
of the CWA directs the Corps to apply Guidelines promulgated under
section 404(b)(1) of the CWA, which in turn must be based on criteria
comparable to the criteria contained in section 403(c) of the CWA.
Among other things, those criteria expressly require consideration of
``other possible locations and methods of disposal'' and ``land-based
alternatives.''
The section 404(b)(1) Guidelines do 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 numerous additional considerations before a section
404 permit may be issued. These include 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.
Under the section 404(b)(1) Guidelines, discharges having
significant adverse effects on aquatic ecosystems are not allowable (40
CFR 230.10(c) (2) and (3)). As a result, the Guidelines require
evaluation of the effects of discharges on the aquatic ecosystem (40
CFR 230.11(e)), including cumulative impacts and secondary effects (40
CFR 230.11(g) and (h)). The Guidelines also set forth specific
provisions for considering impacts on the aquatic ecosystem, including
effects on aquatic organisms in the food web and other wildlife (40 CFR
part 230, subpart D). In addition, the Guidelines do not allow
discharges that would have significant adverse effects on human health,
recreation, aesthetic, and economic values (40 CFR 230.10(c) (1) and
(4)). The Guidelines set forth specific provisions for considering such
impacts (40 CFR part 230, subpart F).
In addition to providing for careful assessment of the overall
effects of the discharge on aquatic ecosystems and other amenities, the
Guidelines do not

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allow a discharge if there are practicable alternatives with less
adverse effects on the aquatic ecosystem (40 CFR 230.10(a)). The
Guidelines further require that if a discharge is allowed, appropriate
and practicable steps must be taken to minimize potential adverse
effects to the aquatic ecosystem and mitigate for unavoidable impacts
(40 CFR 230.10(d)). They also identify a range of such potential
measures for consideration in the permitting process (40 CFR part 230,
subpart H). The Guidelines also provide for mitigation to compensate
for unavoidable adverse effects. See, February 1990 Memorandum of
Agreement Between the Environmental Protection Agency and the
Department of the Army Concerning the Determination of Mitigation Under
the Clean Water Act section 404(b)(1) Guidelines.

D. Discussion of the Existing Corps and EPA Definitions of Fill
Material

Prior to 1977, both the Corps and EPA had 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,'' and specifically excluded from that
definition 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. Specifically, the Corps' definition
of ``fill material,'' unchanged since 1977, currently 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) (emphasis added).

EPA did not amend its regulations to adopt a ``primary purpose
test'' similar to that used by the Corps. Instead, the EPA regulations
at 40 CFR 232.2 currently define ``fill material'' as ``any `pollutant'
which replaces portions of the `waters of the United States'' with dry
land or which changes the bottom elevation of a water body for any
purpose'' (emphasis added). EPA's definition focuses on the effect of
the material, rather than allowing the purpose of the discharge to
affect whether it would be regulated by section 404 or section 402.

E. Problems and Issues With the Existing Definitions

These differing definitions of the term ``fill material'' have
resulted in inconsistencies which impede the fair and effective
implementation of the CWA in a number of ways. For example, in the case
of the Corps definition, use of a ``primary purpose test'' appears to
require the Corps to make a subjective determination about the primary
purpose of a prospective discharge. This subjective determination
becomes even more problematic to make where the proposed discharge has
multiple purposes. The ``primary purpose test'' also allows any
prospective discharger or project proponent to seek to affect which
regulatory regime would apply by simply asserting a purported purpose.
This definition also lends itself to the possible exclusion of
materials 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.
The confusion caused by the ``primary purpose test'' has also
engendered extensive litigation. We are concerned that if the
inconsistencies and ambiguities in the regulatory definitions of ``fill
material'' are not corrected, further litigation would 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 grounds 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, on a number of grounds.
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. relating to his proposed landfill. Based on the
Corps' definition of fill material, the Ninth Circuit stated that no
section 404 permit was needed for the solid waste that would be
disposed of in the proposed landfill. Moreover, the Ninth Circuit also
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. to underlie the landfill was not ``changing the
bottom elevation of a water body'' or ``replacing an aquatic area with
dry land.'' Rather, the court found that its primary purpose was the
installation of a leak detection and collection system for that
landfill. The court did not address the material that would be used to
construct roads and berms that were part of the project.
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
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.
These problems can be avoided by focusing on the effect of the
material to be discharged rather than the purpose. For example, in the
decision of the Fifth Circuit Court of Appeals in Avoyelles Sportsmens
League v. Marsh, 715 F. 2d. 897 (5th Cir. 1983), the Court effectively
interpreted the ``primary purpose test'' as an ``effects based''
definition of ``fill material.'' In the words of the Fifth Circuit:

[[Page 21295]]

* * * the burying of the unburned material, as well as the
discing, had the effect of filling in the sloughs on the tract and
leveling the land. The landowners insist that any leveling was
``incidental'' to their clearing activities and therefore, the
material was not deposited for the ``primary purpose'' of changing
the character of the land. The district court found, however, that
there had been significant leveling * * * Certainly, the activities
were designed to ``replace the aquatic area with dry land.''
Accordingly, we hold that the district court correctly concluded
that the landowners were discharging ``fill material'' into the
wetlands. (Id. At 924-925; emphasis added).

Thus, in the Avoyelles decision the Fifth Circuit essentially held
that if the effect of material discharged into waters of the U.S. is
fill, then that material properly is treated as fill material needing a
CWA section 404 permit.
Other litigation which reflects the confusion caused by the
ambiguities of the ``primary purpose test'' originated in the District
Court for the Southern District of West Virginia (Bragg v. Robertson,
(Civil Action No. 2:98-636, S. D. W. Va.)) and currently is the subject
of an appeal to the U.S. Court of Appeals for the Fourth Circuit. The
Bragg case involves the discharge of large volumes of rock, sand, and
earth (i.e., surface mining overburden) into waters in West Virginia as
part of the process of ``mountaintop removal'' surface coal mining. The
Corps has historically regulated this type of discharge, commonly known
as ``valley fills,'' under CWA section 404 general and individual
permits (permits under the Surface Mining Control and Reclamation Act
(SMCRA) are also required). Among several claims in Bragg was the
assertion that this rock and soil overburden should be regulated under
CWA section 402. On December 23, 1998, a settlement agreement was
reached among the federal defendants, West Virginia Department of
Environmental Protection and the plaintiffs to resolve all claims
against the federal defendants. Under the settlement agreement, the
plaintiffs agreed not to challenge Corps' authority to regulate as
``fill material'' under CWA Section 404 various types of material
(e.g., rock, sand, and earth) generated by the coal mining industry in
West Virginia and placed in waters of the U.S. On June 17, 1999, the
District Court approved the agreement, finding that the agreement
``accords with the law and is fair, reasonable and faithful to the
objectives of SMCRA and CWA.'' 54 F.Supp.2d 653, 665 (S.D.W.Va. 1999).
However, an October 1999 Memorandum Opinion and Order by the District
Court addressing claims against the West Virginia Department of
Environmental Protection under SMCRA contains obiter dicta, based upon
the Corps' primary purpose test, indicating that the Corps lacked
authority to regulate under CWA section 404 the placement into waters
of the U.S. of rock, sand, and earth overburden from coal surface
mining operations, because the ``primary purpose'' of the discharge was
waste disposal.
In contrast to the use of a ``primary purpose test,'' the EPA
regulations currently define ``fill material'' as ``* * * any
`pollutant' which replaces portions of the `waters of the United
States' with dry land or which changes the bottom elevation of a water
body for any purpose'' (emphasis added). This approach, which focuses
on whether the material would have the effect of replacing portions of
waters of the U.S. with dry land, or of changing the bottom elevation
of such waters, is less ambiguous and subjective than use of a
``primary purpose test.'' However, we believe that this definition
needs clarification, because, read literally, it could subject to
regulation under CWA section 404 certain pollutants that have been, are
being, and should be regulated by the technology and water quality
based standards used in the section 402 program. For example,
industrial waste or sewage may contain suspended solids which
ultimately will settle to the bottom following discharge. Although this
would not replace waters with dry land, this could have effects on the
water body's bottom elevation. Where such pollutants are covered by
proposed or final effluent limitations guidelines and standards under
section 301, 304, or 306 of the CWA or the discharge is covered by a
NPDES permit issued under section 402 of the CWA, the proposed rule
would exclude the discharge from the definition of fill.

II. Discussion of Proposed Rule

In order to ensure a clear, effective, and consistent regulatory
approach, the Corps and EPA today are proposing identical definitions
of the term ``fill material.'' In particular, we believe that
regardless of the purpose of a prospective discharge, the definition of
``fill material'' should cover material that has the effect of fill.
Accordingly, today's proposal would amend both the Corps'
definition of ``fill material'' at 33 CFR 323.2(e) and the EPA's
definition at 40 CFR 232.2 to provide that ``fill material'' means
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 water of the U.S. At the same time, it would specifically exclude
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 discharges covered by a NPDES permit
issued under CWA section 402.
In the revised definition of ``fill material'' we have included
examples of certain types of material that often constitute fill. We
wish to emphasize that these are illustrative clarifying examples and
are not intended to be an exhaustive list. As today's rule formally
adopts the effects test, it also is important that we clarify our
intent with respect to certain materials not specifically listed within
the definition. The materials include wood chips, coal mining
overburden, certain forms of solid waste, and material used to
construct solid waste landfills.
With respect to ``wood chips,'' when this material is scattered as
a result of the normal use of wood cutting equipment such as chainsaws,
bush hogs, and similar equipment, the wood chips would not have the
effect of fill, and thus would not be covered by CWA section 404 under
today's proposal. However, some operators of heavy mechanized equipment
place or stockpile wood chips in wetlands to use as temporary road
material, equipment pads, or surfacing to facilitate operation of
equipment such as trucks, backhoes, and excavation equipment. In
addition, in some cases the regular operation of chipping equipment can
result in stockpiling or mounding of chips in waters of the U.S. In
situations such as these, because of their quantity or distribution,
the woodchips have the effect of fill and would be subject to
regulation under CWA section 404.
With regard to proposed discharges of coal mining overburden, we
believe that the placement of such material into waters of the U.S. has
the effect of fill and therefore, should be regulated under CWA section
404. This approach is consistent with existing practice and the
existing EPA definition of the term ``fill material.'' In Appalachia in
particular, such discharges typically result in the placement of rock
and other material in the heads of valleys, with a sedimentation pond
located downstream of this ``valley fill.'' This has required
authorization under CWA section 404 for the discharges of fill material
into waters of the U.S., including the overburden and coal refuse, as
well as the berms, or dams, associated with the sedimentation ponds.
The effect of these discharges is to replace portions of a water body
with dry land. Therefore, today's proposal makes clear that such
material is to be regulated under CWA section 404. Also,

[[Page 21296]]

today's proposal recognizes that discharges from coal mining activities
that are covered by a proposed or final EPA effluent guideline (See
e.g., 40 CFR part 434) are not fill material and would remain subject
to regulation under CWA section 402. Thus, the effluent discharged into
waters of the U.S. from sedimentation ponds currently is regulated
under CWA section 402, and would continue to be so regulated under
today's proposal. This result would also be true for other types of
activities that involve various discharges, some of which are subject
to regulation under CWA section 404 and others of which are subject to
regulation under section 402.
In proposing today's rule, it is the intent of the Corps and EPA to
ensure that all activities involving discharge of pollutants into the
waters of the U.S. associated with coal mining be regulated effectively
to ensure protection of the aquatic environment. Consistent with the
terms of the 1998 Bragg settlement agreement a Memorandum of
Understanding (MOU) to coordinate coal mining permit evaluations in the
state was entered into by the Office of Surface Mining, the Fish and
Wildlife Service, EPA, the Corps, and the State of West Virginia.
Completed in April 1999, the MOU describes those discharges that the
agencies believe generally should have only a minimal effect on waters
of the U.S. and thus could be eligible for general permit authorization
by the Corps. Prior to that MOU, agency practice had allowed the
authorization of some discharges that probably should have received
individual permit review. In addition, the MOU initiated coordination
procedures between CWA and Surface Mining Control and Reclamation Act
permit reviews that also has resulted in the development of technical
models for minimizing the size of proposed coal discharges. The
settlement agreement included the initiation of a comprehensive
Environmental Impact Statement (EIS) as well. The EIS is scheduled to
be completed in December 2000 and will 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 EIS will be issued this summer for public
comment.
With respect to solid waste, it is important at the outset to draw
a clear distinction between solid waste discharged directly into waters
of the U.S. and sanitary solid waste landfills (the latter is discussed
further below). Under today's proposed rule, many forms of solid waste
(including heterogeneous solid waste such as garbage) could fall within
the definition of ``fill material'' if such waste were to be placed
directly into waters of the U.S. This is because most forms of solid
waste, if discharged into a water body, would have the effect of
changing the bottom elevation of a portion of an aquatic area, or
replacing a portion of the aquatic area with dry land.
Under today's proposal, the only exception would be for those
discharges covered by proposed or final effluent limitation guidelines
and standards under sections 301, 304, or section 306 of the CWA or an
NPDES permit issued under section 402 of the CWA. Generally, under
these provisions of the CWA, EPA regulates solid waste materials that
are of a homogeneous nature normally resulting from a single-industry
site or set of known processes. For example, such wastes as identified
in 40 CFR part 440, subpart M (placer mining), 40 CFR part 436, subpart
R (phosphate mining), 40 CFR part 440, subpart E (titanium mining), 40
CFR part 436, subpart C (sand and gravel mining), 40 CFR part 423
(steam electric power generation), and 40 CFR part 435 (oil and gas
extraction). We welcome comment on all aspects of today's proposal, and
especially solicit comment on whether the proposal's reference to
discharges ``covered by proposed or final effluent limitations
guidelines and standards under sections 301, 304 or section 306 of the
Clean Water Act * * * or discharges covered by an NPDES permit'' fully
encompasses the range of discharges properly subject to section 402 of
the Act.
Notwithstanding the fact that the definition of fill could include
many forms of solid waste, you should not infer from this fact that
either the Corps or the EPA believes that solid waste (e.g., trash,
debris, automobiles) is an appropriate or legitimate form of fill
material for which CWA section 404 permits should be or will be
granted. In fact, the opposite is true. As a general matter, we do not
expect that CWA section 404 authorizations should be, or are likely to
be, granted for proposals to discharge of fill material consisting of
such solid waste into any water of the U.S.
In this regard, for many years the Corps has advised the regulated
public that, as a general rule, such solid waste is not an acceptable
form of fill material for which CWA section 404 permits can be issued.
For example, all Corps Nationwide General Permits are subject to
General Condition Number 3, which reads as follows:

3. Suitable material. No discharge of dredged or fill material
may consist of unsuitable material (e.g., trash, debris, car bodies,
etc.) and material discharged must be free from toxic pollutants in
toxic amounts (see section 307 of the Clean Water Act.) (56 FR
59146, Nov. 22, 1991)

In the most recent revision of the nationwide general permit
conditions, the list of ``unsuitable'' forms of fill material has been
expanded to include ``asphalt.'' (See 65 FR Page 12896, March 9, 2000).
This general condition reflects the policy that the waters of the
U.S. should not be polluted by discharges of solid waste, which is
generally not a suitable or appropriate form of ``fill material,'' for
a variety of reasons. For example, many forms of solid waste, such as
heterogeneous solid waste, junked automobiles, discarded appliances, or
chemically processed solid waste (e.g., heap leach piles) often contain
pollutants (including toxic pollutants) that could, over time, leach
into and contaminate both the surface waters and ground water.
Consequently, as a general rule, members of the public should not seek
CWA section 404 authorization for the discharge of such solid waste
directly into the waters of the U.S., because there is no likelihood
that section 404 permits would be granted.
Where there is no reasonable prospect that a Corps District
Engineer would grant a section 404 permit to discharge solid waste into
a water body, it would be a waste of time for both the applicant and
the Corps for the Corps to have to accept and process a permit
application for such a proposed discharge. Thus, the Corps is
considering including in its regulation a provision that would allow
the District Engineer complete discretion to refuse to process any
permit application to discharge fill material that the District
Engineer determines to be ``unsuitable fill material.'' This would
allow Corps District offices to avoid expending limited resources
processing applications for the direct discharge into waters of the
U.S. of any form of solid waste where the District Engineer determines
that there is no reasonable possibility for the granting of a section
404 permit.
To accomplish this purpose, the Corps could include within its
regulations at 33 CFR 323.2 a definition for a new term, ``unsuitable
fill material.'' That proposed new definition would read generally as
follows:

The term ``unsuitable fill material'' means any material
proposed to be discharged into waters of the United States that
would fall under the definition of ``fill material,'' but

[[Page 21297]]

which the District Engineer determines to have physical or chemical
characteristics that would make the material unsuitable for a
proposed discharge into waters of the United States, so that there
is no reasonable possibility that a section 404 permit can be
granted for the proposed discharge of that particular material. For
example the District Engineer may determine that fill material is
unsuitable because of the potential for the leaching of contaminants
from the fill material into ground waters or surface waters, or
because the proposed fill material is too light or unstable to serve
reliably for its intended purpose (e.g., bank stabilization or
erosion control). In most circumstances, heterogeneous solid waste,
discarded appliances, and automobile or truck bodies would qualify
as unsuitable fill material. In addition, material containing toxic
pollutants in toxic amounts (see section 307 of the Clean Water Act)
is unsuitable fill material.

The Corps recognizes the fact that special and exceptional
circumstances can arise whereby material generally deemed
``unsuitable'' for direct discharge into water bodies can be authorized
for discharge, with little or no risk to the environment, or even to
enhance environmental values. For example, over the years the Corps has
authorized the creation of a number of artificial reefs from various
types of discarded ``waste materials.'' Therefore, the new definition
of ``unsuitable fill material'' would not reduce in any way the
discretion of any District Engineer to authorize the discharge of any
waste material for a beneficial purpose.
Accordingly, we request comment on adding a definition in the Corps
regulations for the term ``unsuitable fill material,'' and on changing
Corps regulations to grant the District Engineer authority to reject,
without further processing, any permit application for ``fill
material'' that the District Engineer determines to be ``unsuitable
fill material.''
Unfortunately, it is well known that, upon occasion and from time
to time, individuals illegally ``dump'' solid waste into wetlands and
other aquatic areas, without having sought any sort of CWA
authorization for those discharges. Such illegal discharges of solid
waste present an enforcement problem under the CWA. The EPA will
continue to serve as the lead enforcement agency regarding such
unpermitted discharges of solid waste.
With respect to solid waste landfills, our intent has been, and
continues to be, that liners, berms, and other infrastructure that are
constructed of materials such as rock, sand, gravel, clay, soil,
plastics, and other materials that have the effect of changing the
elevation of waters of the U.S. should be regulated under section 404
of the CWA. In the case of a landfill that has received an individual
Department of the Army section 404 permit, the subsequent disposal of
solid waste into the landfill, while subject to regulation under the
Resource Conservation and Recovery Act (RCRA), would not be subject to
regulation under the CWA. As with current practice, discharges of
leachate from landfills into waters of the U.S. would remain subject to
CWA section 402.
Our approach today is consistent with current practice and the 1986
Solid Waste MOA between the EPA and the Army that the agencies have
continued to follow in implementing our current regulations. That MOA
sets out a number of factors in paragraphs 4 and 5 to help determine
whether material is subject to the CWA under 404 or 402, and today's
proposal has been drafted to take into account factors similar to those
in the 1986 Solid Waste MOA. In particular, the proposal's provision
that material with the effect of fill would be subject to section 404
is similar to paragraph B.4.c of the 1986 Solid Waste MOA (providing
that when the principal effect of the discharge is physical loss or
modification of waters of the U.S., this is a factor indicating
application of section 404). Similarly, proposed language excluding
from coverage under section 404 material that is covered by proposed or
promulgated EPA effluent guidelines or standards is consistent with
paragraph B.5 of the 1986 Solid Waste MOA (providing that when
discharges are in liquid, semi-liquid, or suspended form or the
discharge is of homogeneous solid material, this is a factor indicating
application of section 402). Additionally, as provided for in paragraph
B.2 of the 1986 Solid Waste MOA, in cases of unpermitted discharges of
solid waste into waters of the U.S., EPA will continue to serve as the
lead enforcement agency.
Consistent with the above described revisions to the definition of
``fill material,'' we also are proposing to revise the definition of
the term ``discharge of fill material'' to further clarify the issue of
section 404 applicability with regard to materials used to construct
solid waste landfills and placement of coal mining overburden. In
particular, we believe placement of these materials in waters of the
U.S. is properly subject to regulation under section 404 of the CWA.
Accordingly, we are proposing a clarification to the regulations on
this point by adding these placement activities to the list of examples
set out in the regulations defining the ``discharge of fill material''
at 33 CFR 323.2(f) and 40 CFR 232.2.

III. Administrative Requirements

A. Paperwork Reduction Act

This action does not impose any new information collection burden
or alter or establish new record keeping or reporting requirements.
Thus, this action is not subject to the Paperwork Reduction Act.

B. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.

C. Executive Order 13132 (Federalism)

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, we may not issue a
regulation

[[Page 21298]]

that has federalism implications, that imposes substantial direct
compliance costs, and that is not required by statute, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or we consult
with State and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts State law, unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Currently, under the CWA, any
discharge of pollutants into waters of the U.S. requires a permit.
Today's proposal relates solely to whether a particular discharge is
appropriately authorized under section 402 or section 404 of the Act.
Moreover, the proposed allocation of authority between these programs
is consistent with existing agency practice. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.

D. Regulatory Flexibility Act (RFA) as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.

The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions.
The proposed rule does not impose any new requirements. Currently,
under the CWA, any discharge of pollutants into waters of the U.S.
requires a permit. Today's proposal relates solely to whether a
particular discharge is appropriately authorized under section 402 or
section 404 of the Act. Moreover, the proposed allocation of authority
between these programs is consistent with existing agency practice.
After considering the economic impacts of today's proposed rule on
small entities, we certify that this action will not have a significant
economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
We have determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. The proposed rule does not impose any new
requirements. Currently, under the CWA, any discharge of pollutants
into waters of the U.S. requires a permit. Today's proposal relates
solely to whether a particular discharge is appropriately authorized
under section 402 or section 404 of the Act. Moreover, the proposed
allocation of authority between these programs is consistent with
existing agency practice. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA. For the same reasons,
we have determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Thus,
today's rule is not subject to the requirements of section 203 of UMRA.

F. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law 104-113, section 12(d) (15 U.S.C.
272 note), directs us to use voluntary consensus standards in our
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices etc.) that are adopted by
one or more voluntary consensus standards bodies. The NTTAA directs us
to provide Congress, through OMB, explanations when we decide not to
use available and applicable voluntary consensus standards.
As part of a larger effort, EPA is undertaking a project to cross-
reference existing voluntary consensus standards in testing, sampling,
and analysis, with current and future EPA test methods. When completed,
EPA will use this project to assist in identifying potentially
applicable voluntary consensus standards that can then be evaluated for
equivalency and applicability in determining compliance with future EPA
regulations.
This proposed rulemaking does not involve technical standards.
Therefore, we are not considering the use of any voluntary consensus
standards. We welcome comments on this aspect of the proposed
rulemaking and specifically, invite the public to identify any
potentially applicable voluntary consensus standards and to explain why
such standards should be used in this regulation.

G. Executive Order 13045

Executive Order 13045, entitled Protection of Children From
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that we determine (1) is economically
significant as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, we must evaluate the environmental

[[Page 21299]]

health or safety effects of the planned rule on children and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives that we considered.
This regulation is not subject to Executive Order 13045 because, as
previously discussed, it does not constitute an economically
significant regulatory action as defined by Executive Order 12866.
Furthermore, it does not concern an environmental health or safety risk
that we have reason to believe may have a disproportionate effect on
children.

H. Executive Order 13084

Under Executive Order 13084, we may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
cost incurred by the Tribal governments, or we consult with those
governments. If we comply by consulting, Executive Order 13084 requires
us to provide OMB, in a separately identified section of the preamble
to the rule, a description of the extent of our prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires us to develop
an effective process permitting elected officials and other
representatives of Indian Tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments, nor does it impose
significant compliance costs on them. Today's proposal relates solely
to whether a particular discharge is appropriately authorized under
section 402 or section 404 of the Clean Water Act. Moreover, the
proposed allocation of authority between these programs is consistent
with existing agency practice. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this rule.

I. Environmental Documentation

As required by the National Environmental Policy Act (NEPA), the
Corps prepares appropriate environmental documentation for its
activities affecting the quality of the human environment. The Corps
has made a preliminary determination that today's proposed rule does
not constitute a major Federal action significantly affecting the
quality of the human environment, and thus does not require the
preparation of an Environmental Impact Statement (EIS). Among the
reasons for this conclusion is the fact that the Corps prepares
appropriate NEPA documents, when required, covering specific permit
situations. The implementation of the procedures prescribed in this
proposed regulation would not authorize anyone (e.g., any landowner or
permit applicant) to perform any work involving regulated activities in
waters of the U.S. without first seeking and obtaining an appropriate
permit authorization from the Corps. In addition, this proposed
regulation merely revises and clarifies the Corps' and EPA's respective
definitions of the terms ``fill material'' and ``discharge of fill
material'' to allow more objective determinations, and is consistent
with current practice. Accordingly, the Corps expects to prepare an
environmental assessment (EA) for the rule.

List of Subjects

33 CFR Part 323

Water pollution control, Waterways.

40 CFR Part 232

Environmental protection, Intergovernmental relations, Water
pollution control.

Corps of Engineers

33 CFR Chapter II
Accordingly, as set forth in the preamble 33 CFR part 323 is
proposed to be amended as set forth below:

PART 323--[AMENDED]

1. The authority citation for part 323 continues to read as
follows:

Authority: 33 U.S.C. 1344.

2. Amend Sec. 323.2 as follows:
a. Paragraph (e) is revised.
b. In paragraph (f), in the second sentence, add the words
``placement of fill material for construction or maintenance of liners,
berms, and other infrastructure associated with solid waste landfills;
placement of coal mining overburden;'', after the words ``utility
lines;''.
The revision reads as follows:

Sec. 323.2 Definitions.

* * * * *
(e)(1) Except as specified in paragraph (e)(2) of this section, the
term fill material means material (including but not limited to rock,
sand, and earth) that 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) The term fill material does not include discharges covered by
proposed or final effluent limitations guidelines and standards under
sections 301, 304 or section 306 of the Clean Water Act (see generally,
40 CFR part 401), or discharges covered by an NPDES permit issued under
section 402 of the Clean Water Act.
* * * * *

Dated: April 17, 2000.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.

Environmental Protection Agency

40 CFR Chapter I
Accordingly, as set forth in the preamble 40 CFR part 232 is
proposed to be amended as set forth below:

[[Page 21300]]

PART 232--[AMENDED]

1. The authority citation for part 232 continues to read as
follows:

Authority: 33 U.S.C. 1344.

2. Amend Sec. 232.2 as follows:
a. The definition of ``Fill material'' is revised.
b. In the definition of ``Discharge of fill material,'' in
paragraph (1), add the words ``placement of fill material for
construction or maintenance of liners, berms, and other infrastructure
associated with solid waste landfills; placement of coal mining
overburden;'', after the words ``utility lines;''.
The revision reads as follows;

Sec. 232.2 Definitions.

* * * * *
Fill material. (1) Except as specified in paragraph (2) of this
definition, the terms fill material means material (including but not
limited to rock, sand, and earth) that has the effect of:
(i) Replacing any portion of 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) The term fill material does not include discharges covered by
proposed or final effluent limitations guidelines and standards under
sections 301, 304 or section 306 of the Clean Water Act (see generally,
40 CFR part 401), or discharges covered by an NPDES permit issued under
section 402 of the Clean Water Act.
* * * * *

Dated: April 17, 2000.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[FR Doc. 00-9940 Filed 4-19-00; 8:45 am]
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