Controversies over Redefining Fill Material Under the Clean Water Act

On May 3, 2002, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) announced a regulation redefining two key terms, fill material and discharge of fill material, in rules that implement Section 404 of the Clean Water Act. This report discusses the 2002 rule, focusing on how it changes which material and types of activities are regulated under Section 404 and the significance of these issues, especially for the mining industry. The Clean Water Act contains two different permitting regimes: (1) Section 402 permits (called the National Pollutant Discharge Elimination System, or NPDES, permit program) address the discharge of most pollutants, and (2) Section 404 permits address the discharge of dredged or fill material into navigable waters of the United States at specified sites. These permit programs differ in nature and approach. The NPDES program focuses on the effects of pollutant discharges on water quality. The 404 program considers effects on the aquatic ecosystem and other national and resource interests. The Corps and EPA have complementary roles under Section 404. Landowners seeking to discharge dredged or fill material must obtain a permit from the Corps under Section 404. EPA provides environmental guidance on 404 permitting. The determination of what is fill material is important, since fill material is subject to 404 permit requirements, while discharge of non-fill material is regulated by EPA under the Section 402 NPDES permit program. The revised rule was intended to clarify the regulatory definition of fill material by replacing two separate and inconsistent definitions with a single, common definition...OpenCRS