Letter from NTWC to urge the closing of two loopholes in the Clean Water Act’s (CWA) implementing regulations.

Dear Ms. Sutley, Mr. Perciasepe, and Ms. Darcy:

The National Tribal Water Council (NTWC) was created by EPA to provide a forum for Indian Tribes and Native American villages to voice their views on water quality issues affecting Indian country throughout the United States. While conducting our work, the NTWC spends considerable time trying to address water quality issues associated with hardrock mining. Today we write to urge the closing of two loopholes in the Clean Water Act’s (CWA) implementing regulations. These loopholes allow hardrock mines to discharge and store massive amounts of contaminants in our nation’s wetlands, rivers, and lakes.

As we are all well aware, mining impacts in Indian Country and throughout the United States have had a profound negative effect on water quality. Proportionally, native villages and Indian Tribes bear the brunt of these impacts because many mines are located within tribal homelands and Tribal members rely, to a greater degree, on using natural resources for their subsistence. Although this is true, it does not discount the fact that the general population as a whole is also subjected to mining pollution. The NTWC recognizes that many of the problems we currently face are the result of “legacy” mining pollution and were done in a time when technology was far less refined, scientific understanding of ecosystem function and the effects of mining wastes were unknown, and regulations were absent. These legacy impacts will continue to plague our nation and will need to be addressed for decades, if not centuries. EPA is well aware of this, since a large part of their Superfund program is devoted to remediation at such sites.

With the enactment of the CWA, hope had been restored that the federal government had recognized past mining practices were harmful to the environment, and future practices would have to be regulated to better protect our environment. Although the CWA certainly helped change the nature of mining practices, two loopholes exist that clearly undermine the spirit and intent of the CWA. The first loophole allows mine developers to define natural lakes, rivers, streams and wetlands as, “waste treatment systems” and therefore are exempt from the CWA. The second loophole redefined the term, “fill material”, under Section 404 of the CWA to allow for tailings and overburden to be placed in our waterways. Section 404 was intended to regulate the placement of rock, clay, sand and other inert materials in water for construction, not for disposal of “contaminated materials.”

These two loopholes have allowed mining companies to continue to directly discharge pollution into our nation’s waters as they have been doing for over a century. To redefine a lake or a river as a “waste treatment system” is shameful, an abomination of the natural order of things, and a giant step back in time. The NTWC believes that these loopholes have resulted from industry politics and a lack of oversight by EPA in the protection of our nation’s waters. Therefore, the NTWC urges EPA to reconsider their position and explicitly limit the waste treatment system exclusion to only manmade waters and to revise the 2002 definition of “fill” to exclude waste disposal.

The NTWC is honored to be a voice for Tribes and Native villages in the United States and appreciates our opportunity to provide these views to EPA. We recognize the difficulty it takes to balance economic prosperity with environmental protection and are committed to work with EPA to find solutions.

Thank you for your swift attention to this important matter. We eagerly await your response. Please contact Mr. Steve Terry, as seen below, if you require additional information.


Mr. Ken Norton, Chairman of the NTWC
On behalf of the membership of the NTWC.

Click here to download a copy of the original letter.