Response by the US Army Corps

Dear Mr. Norton:

Thank you for your letter dated July 16, 2013, to the Department of the Army, the U.S. Environmental Protection Agency (EPA), and the Council on Environmental Quality (CEQ), whereby you expressed concern over perceived loopholes in regulations administered by the EPA and the U.S. Army Corps of Engineers (Corps). Specifically, you requested the Corps and EPA revise their regulations to: 1) clarify that the waste treatment system exclusion applies only to manmade waters, and 2) exclude mining waste discharges from the definition of “fill material.”  Chair Nancy Sutley, CEQ has requested that I reply on her behalf and we have copied her on this letter.   The EPA replied in a separate letter dated August 9, 2013.  I apologize for the delay in responding.

Two regulations are important in the administration of the Clean Water Act (CWA) and your concerns: 1) waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA, are not waters of the United States (WoUS) (see 33 CFR 328.3), and 2) under the current definition of fill, overburden,  slurry, and tailings from mining operations may be classified as fill, instead of industrial wastes or pollutants (see 33 CFR 323.2(e)(2)).  At present, the definition of “fill material” does not include an explicit exclusion for discharges covered by Effluent Limitation Guidelines (ELGs) or New Source Performance Standards (NSPS).

The 404(b)(1) guidelines of the CWA establish the environmental criteria to be applied in evaluating proposed discharges of dredged and/or fill material to ensure that discharges  approved under a Section 404 permit will not result in significant degradation  of the aquatic environment.   Under the 404(b)(1) guidelines, no discharge of dredged or fill material can be permitted if there is a practicable alternative to the proposed discharge,  which would have less adverse impact on the aquatic environment and does not have any other significant adverse environmental consequences.   The 404(b){1) guidelines also require a demonstration that all appropriate and practicable steps have been taken to minimize unavoidable adverse effects on the aquatic environment.  Appropriate and practical mitigation measures to compensate for unavoidable losses to aquatic resources are carefully evaluated in accordance with the applicable regulations.

Pursuant to Section 402 of the CWA, the discharge of a pollutant (other than the discharge of dredged material or fill material from a point source to WoUS) is prohibited unless authorized by a National Pollutant Discharge Elimination System permit issued by the EPA or an authorized state.  Although waste treatment systems are excluded from the definition of WoUS, a discharger must obtain a CWA Section 402 permit for discharges from an authorized waste treatment system into a WoUS.

The U.S. Supreme Court addressed the definition of “fill material” in Coeur Alaska v. SEACC, 129 S.Ct. 2458 (2009).  At issue was whether the Corps had authority to issue a permit under CWA Section 404 authorizing Coeur Alaska to discharge mine tailings as fill material, despite EPA’s promulgation of an ELG and NSPS for the same sort of discharge.  The Court deferred to EPA’s interpretation in their 2004 Mining Memorandum and concluded that because the tailings Coeur Alaska proposed to discharge were appropriately considered “fill material” under the regulations, Coeur Alaska properly obtained its permit from the Corps under CWA Section 404, rather than from EPA under Section 402.  The U.S. Supreme Court also noted that the agencies’ regulations fail to fully resolve the statutory ambiguity.

The Corps and EPA have at various times discussed actions for both the waste treatment system exclusion and definition of “fill material” that could provide additional clarity.  Although no decisions have been made at this time regarding regulatory changes, we are committed to open communication with interested stakeholders as we discuss options and impacts of regulating mining material disposal while protecting WoUS.

Thank you for your interest in this issue.  Please contact Mr. Chip Smith at the Department of the Army at (703) 693-3655 or at if you have any questions.

Very truly yours,

Jo-Ellen Darcy

Assistant Secretary of the Army

(Civil Works)

Click here to download the original letter.

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