Re: Definition of “Waters of the United States” Under the Clean Water Act
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 submit comments already substantially provided to the EPA Office of Water, the Council on Environmental Quality, and the US Army Corps of Engineers, urging 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. The first loophole is specifically relevant to the EPA and the Corps’ proposed rule defining the scope of waters protected under the Clean Water Act.
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.”
On May 19, 1980, the Environmental Protection Agency (EPA) revised its regulations defining waters of the United States, providing an exclusion for “waste treatment systems” as follows:
Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States.
According to EPA, the intent of the final sentence of the exclusion was to “ensure that dischargers did not escape treatment requirements by impounding waters of the United States and claiming the impoundment was a “waste treatment system”, or by discharging wastes into wetlands. This clarification of the waste treatment system (WTS) exclusion was later suspended by EPA without public notice or comment. 45 Fed. Reg. 48620 (July 21, 1980). The Corps adopted the WTS exclusion without the explicit manmade waters limitation in 1986. 33 C.F.R. § 328.3(a)(8).
When legally challenged in the late 1980’s by the West Virginia coal mining industry, EPA maintained that “under current EPA regulations, discharges into these instream impoundments continue to be discharges into waters of the U.S., and, therefore, NPDES permit limitations must be met prior to treatment in the impoundment, rather than after. EPA then proposed an “alternative approach” in which the Corps would review impoundments of waters pursuant to section 404, and EPA would revise its regulations so that “where such a review has been conducted and section 404 criteria have been met, a 402 permit will only be required for discharges from the instream impoundment, not into it.
In 1992, EPA adopted this alternative approach, specifically for the AJ and Kensington gold mines in Alaska which had proposed impounding wetlands and streams behind earthen dams for purposes of tailings disposal. EPA and the Corps agreed that as long as the Corps approved the construction of the tailings impoundment under section 404, the waters within the impoundment would no longer be considered waters of the United States, and tailings discharges would not require either a section 402 or 404 permit. EPA and the Corps subsequently relied on a similar rationale to authorize tailings disposal for the Fort Knox open pit gold mine near Fairbanks, other Alaska hard rock mines, and ferrous mines in Minnesota’s Mesabi Iron Range.
Regarding the second ‘loophole’, under the Clean Water Act , a person who discharges “fill material” into waters of the U.S. must obtain a section 404 permit from the Corps. Anyone who wants to discharge other pollutants must obtain a section 402 permit from the EPA or a state that has been delegated authority to issue such permits. In 1982, EPA adopted a zero discharge standard under section 402 for new copper and gold mines using froth-flotation, cyanidation, and similar processes. EPA found that mines operating in the early 1980s were already achieving zero discharge and that it was therefore practicable for new mines to operate without discharging untreated waste into natural waters.
Prior to 2002, EPA and the Corps had different definitions for this type of pollutant. The Corps, defined fill as “any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a water body. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under section 402 of the Clean Water Act. Under this definition, tailings and other mining wastes were not fill material because they were not used for the primary purpose of replacing an aquatic area with dry land. Pollutants discharged into waters primarily as a form of waste disposal were explicitly regulated under the more rigorous section 402 program. All this changed in 2002 when EPA and the Corps adopted identical definitions of fill material to include discharges that have the effect of either replacing any portion of a water body with dry land or changing the bottom elevation of any portion of a water. The regulatory examples included overburden from mining.
The new fill definition was the subject of a U.S. Supreme Court decision finding that EPA and the Corps had acted lawfully in authorizing the Kensington mine in southeast Alaska to use Lower Slate Lake as a tailings reservoir in which it could discharge slurry and other wastes. Relying upon the 2002 regulation redefining fill material, the agencies concluded that these discharges should be treated as fill under section 404, rather than waste under section 402, because they would change the bottom elevation of Lower Slate Lake. The decision means that as long as the current definition of fill material is in effect, mine wastes discharged into waters of the U.S. are regulated under section 404 where permits are approved more than 99% of the time instead of under section 402 with its strict pollution standards.
Hardrock mining would be a far less destructive industry if section 402’s discharge limitations were strictly applied. Mines produce huge quantities of chemically-treated wastes, and the cheapest places to store these wastes are valleys and other low-lying areas near the mine sites. But these are also the places where the wetlands, rivers, and lakes protected by the CWA are found. As a result of a change in the definition of fill material, mining companies are currently able to avoid complying with section 402’s rigorous pollution limitations and use waters of the U.S. as industrial waste dumps.
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.
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.