EPA’s Response to NTWC Regarding CWA Mining Loopholds

Dear Mr. Norton:

Thank you for your letter of July 16, 2013, to the U.S. Environmental Protection Agency, expressing tribal concerns regarding the waste treatment system exclusion and the effect of hardrock mining “fill material” disposal in waters of the United States.

The EPA is committed to protecting the nation’s wetlands, lakes, rivers and other aquatic resources, and has made a commitment by fostering environmental improvements in mining practices so that waters of the United States are not significantly degraded.  I share your concern about the impacts of some mining practices on aquatic ecosystems, and the Office of Water is working with our federal and state agency partners to reduce the harmful environmental consequences of mining, while ensuring that future mining remains consistent with the Clean Water Act.

The CWA Section 404 permitting program is expressly designed to address the potential adverse environmental impacts on the aquatic ecosystem associated with the discharges of fill material. Section 404(b) of the CWA directs the U.S. Army Corps of Engineers (Corps) to apply Guidelines promulgated under Section 404(b) (1) of the CWA in evaluating whether a proposed discharge may be authorized.  The 404(b)(1) Guidelines establish the criteria and standards to be applied in evaluating proposed discharges of fill material to ensure that such discharges approved under a Section 404 permit will not result in significant degradation of the aquatic environment. The 404(b)(1) guidelines require a demonstration that there are no less environmentally damaging alternatives to the discharge, and that all appropriate and practicable steps have been taken to avoid, minimize, and compensate for effects on waters.

The CWA also prohibits the discharge of pollutants (other than fill material) from a point source to waters of the United States unless authorized by a National Pollutant Discharge Elimination System permit issued by the EPA or an authorized State.  As your correspondence points out, the EPA’s and the Corps’ definition of waters of the United States does include an exclusion for certain waste treatment systems.  However, an applicant must obtain a CWA Section 402 permit for discharges from an authorized waste treatment system into a water of the United States.

Following the Supreme  Court’s decision in Coeur Alaska v. Southeast Alaska Conservation Council , 129 S. Ct. 2459 (2009), the EPA is considering options related to both of these issues that could help reduce the potential for harm to the environment and human health from the disposal of mining waste.  No decisions  have been made at this time regarding any regulatory changes.   The Office of Water is committed  to open communication with the tribes and other federal agencies as we identify environmentally protective solutions regarding the disposal of mining material.

The EPA appreciates the National Tribal  Water Council ‘s strong commitment  to the integrity of the CWA and support for the goal of protecting  the nation’s waters.  If you have further questions, please contact David Evans, Director of the Wetlands Division at evans.david@epa.gov (202) 566-0535, or Felicia Wright, OW Tribal Coordinator at wright.felicia@epa.gov (202) 566-1886.


Nancy K. Stoner

Acting Assistant Administrator

Click here to download the original letter.