Definition of "Fill" Material

			Position  |  Background  |  Issue  |  Impact
	Position:		The clarified definition of "fill material" jointly announced by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers on May 3, 2002, must be preserved.
	Background:		EPA's historic definition of "fill" and Section 404 of the Clean Water Act provide the proper regulatory framework under which to regulate "fill." The definition in the jointly announced rulemaking is consistent with the EPA's existing and the Corps' longstanding practice and 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 Clean Water Act. The Section 404 permitting program is specifically designed to address activities that have the effect of physical conversion of waters to dry land and requires 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 affects. In 1977, when the Corps amended its definition to add a "primary purpose test" that focused on whether the primary purpose of the material was to raise the bottom elevation of a water or convert wet to dry land, EPA retained the effects-based approach because it ensures that discharges with similar environmental effects receive similar regulatory treatment. EPA notes, for example, that mine overburden consists of material such as soil, rock and earth, that is similar in its characteristics and effects of fill material used for the purposes of creating dry land for development. Contrary to recent judicial decisions, provisions of the Surface Mining Control and Reclamation Act (SMCRA) support the government's interpretation of the Clean Water Act as granting the Corps authority to issue permits under Section 404 for discharges of mining overburden. SMCRA explicitly contemplates the construction of fills in waters of the U.S. regardless of their purpose, and Section 515 of SMCRA contains the specific performance standards for the designed construction of fills.
	Issue:		The rulemaking was needed to provide consistency and regulatory predictability. Since 1977, when the Corps amended its definition of "fill material," Section 404 permits have been subject to repeated litigation and regulatory inconsistency due to the confusion caused by differing regulatory definitions. The rulemaking avoids the potential for a regulatory gap. For example, one appeals court held the Corp's primary purpose test excluded from Clean Water Act regulation the construction of solid waste landfills in jurisdictional waters. EPA and the COE acknowledged that all fills have similar effects, therefore, focusing on the effect of the fill rather than its purpose results in greater environmental protection.
	Impact:		The final rule has far-reaching impacts for anyone engaging in excavation-related activities that generate excess rock and soil. While the focus of attention has been on coal mining and associated fills, the regulatory practices at issue here are no different for mining than for constructing a commercial, industrial, or residential development, or for building a highway or transit system. All development is effected by the final rule where no viable alternative exists for placing the excess rock and soil generated by all types of development activities. Without fills, thousands of jobs will be lost and beneficial development and other necessary economic activity will be stopped. back to the top