* Managing Editor, Boston College Environmental Affairs Law Review, 2003–04. I would like to thank my parents, Anna Nicole McGee, and the law review staff for their help and support during the production of this Note.
1 Oliver A. Houck, Hard Choices: The Analysis of Alternatives Under Section 404 of the Clean Water Act and Similar Environmental Laws, 60 U. Colo. L. Rev. 773, 773 (1989).
2 Michael C. Blumm & D. Bernard Zaleha, Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for Reform, 60 U. Colo. L. Rev. 695, 698–99 (1989) (claiming that the section 404 permitting program has been unable to prevent the loss of over 300,000 acres of wetlands annually).
3 See discussion infra Part IV.
4 See Blumm & Zaleha, supra note 2, at 703–08.
5 See, e.g., Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 901–02 (5th Cir. 1983).
6 See, e.g., Regulatory Programs of the Corps, 42 Fed. Reg. 37,122, 37,130 (July 19, 1977).
7 See, e.g., Avoyelles Sportsmen’s League, 715 F.2d at 900.
8 See, e.g., W. Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1282 (S.D. W. Va. 1989), aff’d per curiam, Nos. 90–2034, 90–2040, 1991 WL 75217 (4th Cir. May 13, 1991).
9 See discussion infra Part II.
10 See discussion infra Part II.A.
11 See discussion infra Parts II.F, IV.
12 See discussion infra Parts II.F, IV.
13 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251–1376 (2000)).
14 33 U.S.C. § 1251 (2000).
15 Id. § 1311.
16 Id. § 1342.
17 Id.
18 Rivers and Harbors Appropriation Act of 1899 § 10, 33 U.S.C. § 403 (2000).
19 33 U.S.C. § 1342(a)(1); 2 William H. Rodgers, Jr., Environmental Law § 4.12 (1986); Michael Hollins, Addition by Removal? National Mining Limits Section 404 Control of Construction in Wetlands, 14 J. Land Use & Envtl. L. 341, 346 (1999). Initially the Corps viewed section 404 not as a program that was excepted from EPA, but as an exemption from EPA’s NPDES program for its section 10 RHA regulatory program. See Blumm & Zaleha, supra note 2, at 704.
20 S. Conf. Rep. No. 92-1236, at 141 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3818.
21 Id.
22 Id. at 3819; see discussion infra Part I.C.
23 Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. 31,129, 31,130 (May 9, 2002) (to be codified at 33 C.F.R. pt. 323; 40 C.F.R. pt. 232).
24 Hollins, supra note 19, at 351.
25 Id.
26 2 Rodgers, supra note 19, § 4.12.
27 33 U.S.C. § 407 (2000).
28 Hollins, supra note 19, at 352–53.
29 2 Rodgers, supra note 19, § 4.12.
30 Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (invalidating an interpretation of 33 C.F.R. § 328(a)(3) (1999) that allowed section 404 permitting jurisdiction over isolated wetlands because migratory birds may have used these wetlands as habitat).
31 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (holding that the Army Corps had section 404 jurisdiction over wetlands abutting navigable waters); see also 33 C.F.R. § 328.3(a)(7) (2002) (stating that the term “waters of the United States” includes wetlands adjacent to waters that may be susceptible to use in or could affect interstate commerce).
32 Natural Res. Def. Council v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).
33 Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (codified as amended at 33 U.S.C. §§ 1251–1376 (2000)).
34 S. Rep. No. 95-370, at 74–75 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4399–400.
35 33 U.S.C. § 1344(f)(1) (2000).
36 S. Rep. No. 95-370, at 74–75.
37 33 U.S.C. § 1344(e).
38 Id.
39 See National Environmental Policy Act of 1969 § 102, 42 U.S.C. § 4332 (2000) (stating that environmental impact statements are required for “major Federal actions significantly affecting the environment”).
40 Paul A. Duffy, How Filled Was My Valley: Continuing the Debate on Disposal Impacts, 17 Nat. Resources & Env’t 143, 145 (2003) (stating that 84.4% of section 404 applications between 1996 and 1999 were handled under general permit programs); see also Mountaintop Mining and U.S. EPA’s Proposed Rule Change: A Giant Step Backward for the Clean Water Act, 30 Envtl. L. Rep. (Envtl. L. Inst.) 11,175, 11,176 (Dec. 2000) (“Every valley fill in West Virginia has been approved pursuant to an NWP [nationwide permit], rather than an individual permit.”) [hereinafter Mountaintop Mining].
41 Duffy, supra note 40, at 145 (“Nationwide permits allow for the fast approval of projects with little or no administrative delay, and . . . approval under nationwide permits is relatively quick and easy and thus such permits are much more desirable to coal companies.”).
42 Blair M. Gardner, Reconciling Surface Mining and the CWA: Section 404(B)(1) and Mitigation, 17 Nat. Resources & Env’t 146, 148 (2003).
43 See Blumm & Zaleha, supra note 2, at 766 (stating that “general permits are a substantial contributing factor in the alarming annual rate of national wetlands loss”); Gardner, supra note 42, at 148 (suggesting that the Corps has been timid in justifying its nationwide permit program).
44 Timothy J. Hagerty, Surface Mining and the Clean Water Act: The 402/404 Conflict and the Regulation of Valley Fills, in Wetlands Law and Regulation 174, 178 (A.L.I.-A.B.A. Course of Study, May 29–31, 2002), available in Westlaw, SG096 ALI-ABA 174. The extent of EPA’s role in the section 404 permitting program is one of emphasis and attitude. Compare Duffy, supra note 40, at 145 (asserting that “EPA has only minimal oversight over the Corps’ Section 404 permits”), with Gardner, supra note 42, at 148 (“Contrary to the suggestion in Paul Duffy’s article, EPA has a pervasive presence in Section 404 permitting.”).
45 33 U.S.C. § 1344(a) (2000).
46 Id. § 1344(b)(1).
47 40 C.F.R. §§ 230.10, .11, .70–.77 (2002).
48 40 C.F.R. § 230.10(a).
49 33 U.S.C. § 1344(b)(2).
50 Id. § 1344(c). This provision has been invoked by EPA only eleven times since 1972. See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927, 933 (S.D. W. Va. 2002), vacated by 317 F.3d 425 (4th Cir. 2003).
51 2 Rodgers, supra note 19, § 4.12.
52 Hagerty, supra note 44, at 178–79.
53 33 C.F.R. § 209.120(d)(4) (1975).
54 Permits for Activities in Navigable Waters, 40 Fed. Reg. 19,766, 19,766, 19,770 (proposed May 6, 1975).
55 Id. at 19,770.
56 33 C.F.R. § 209.120(d)(6) (1976).
57 40 C.F.R. pt. 230, app. A (1976).
58 Permits for Activities in Navigable Waters, 40 Fed. Reg. at 19,794; Permits for Activities in Navigable Waters, 40 Fed. Reg. 31,320, 31,320 (July 25, 1975).
59 See Permits for Activities in Navigable Waters, 40 Fed. Reg. at 31,320 (“[The Corps] recognize[s] that this program . . . will extend Federal regulation over discharges of dredged or fill material to many areas that have never before been subject to Federal permits or to this form of water quality protection.”).
60 Permits for Activities in Navigable Waters, 40 Fed. Reg. at 19,794 (“EPA believes that a broad implementation of the section 404 program is necessary to protect the Nation’s water resources.”).
61 Compare Regulatory Programs of the Corps, 42 Fed. Reg. 37,122, 37,130 (July 19, 1977) (defining fill material as “any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody” and stating that “activities such as plowing, cultivating, seeding, and harvesting, cultivating . . . cannot be included in the program”) (emphasis added), with 40 C.F.R. pt. 230, app. A (defining fill material as “any pollutant used to . . . replac[e] an aquatic area with dry land or . . . chang[e] the bottom elevation of a waterbody for any purpose”) (emphasis added).
62 33 C.F.R. § 323.2(e)(2001).
63 40 C.F.R. § 122.2.
64 See 33 C.F.R. § 323.2(e).
65 Regulatory Programs of the Corps, 42 Fed. Reg. at 37,130. The traditional subject of section 404 permitting is using material “to fill in a wetland to build a vacation home, or . . . as the bedrock material for a bridge or pier or other activity on or over the navigable waters.” Robert W. Adler, Water Quality Protection, 15 J. Energy Nat. Resources & Envtl. L. 311, 314 (1995).
66 Regulatory Programs of the Corps, 42 Fed. Reg. at 37,130.
67 See id.
68 See Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. 21,292, 21,294 (proposed Apr. 20, 2000).
69 See Permits for Activities in Navigable Waters, 40 Fed. Reg. 31,320, 31,320 (July 25, 1975) (“[The Corps] recognize[s] that this program . . . will extend Federal regulation over discharges of dredged or fill material to many areas that have never before been subject to Federal permits or to this form of water quality protection.”).
70 40 C.F.R. pt. 230, app. A (1976) (emphasis added).
71 Consolidated Permit Regulations: CWA Section 404 Dredge or Fill Programs, 45 Fed. Reg. 33,290, 33,299 (May 19, 1980).
72 Id. at 33,421. The agencies describe this definition as “focus[ing] on the effect of the material, rather than allowing the purpose of the discharge to affect whether it would be regulated by section 404 or section 402.” Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. 21,292, 21,294 (proposed Apr. 20, 2000).
73 Consolidated Permit Regulations: CWA Section 404 Dredge or Fill Programs, 45 Fed. Reg. at 33,299.
74 Id.
75 Permits for Activities in Navigable Waters, 40 Fed. Reg. 19,766, 19,794 (proposed May 6, 1975).
76 See 40 C.F.R. § 233.3 (1983); 40 C.F.R. pt. 230 (1982); 40 C.F.R. pt. 230, app. A (1981).
77 40 C.F.R. pt. 230, app. A (1981) (defining fill material as “any pollutant used to create fill in the traditional sense of replacing an aquatic area with dry land or of changing the bottom elevation of a water body for any purpose”).
78 See 40 C.F.R. pt. 230 (1982).
79 40 C.F.R. § 233.3 (1983).
80 See Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. 21,292, 21,294 (proposed Apr. 20, 2000); see also discussion infra Part II.F.
81 Nat’l Wildlife Fed’n v. Marsh, 14 Envtl. L. Rep. (Envtl. L. Inst.) 20,262, 20,262–65 (D.D.C. Feb. 10, 1984); Blumm & Zaleha, supra note 2, at 710–12 (stating that “[t]he election of Ronald Reagan brought new challenges to 404 implementation . . . and led sixteen environmental groups to file suit” to enjoin the implementation of an expanded nationwide general permit program).
82 Memorandum of Agreement on Solid Waste, 51 Fed. Reg. 8871, 8871 (Mar. 14, 1986).
83 Id.
84 Id.
85 Id. at 8872. See also Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927, 940 (S.D. W. Va. 2002), vacated by 317 F.3d 425 (4th Cir. 2003) (stating that it is unclear whether these factors are to be considered disjunctive or conjunctive).
86 See Memorandum of Agreement on Solid Waste, 51 Fed. Reg. at 8872.
87 Id.
88 Id.
89 Id.
90 See discussion infra Part IV.
91 See discussion infra Part IV.
92 See discussion infra Part IV.
93 See Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162 (9th Cir. 1998); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983).
94 Avoyelles Sportsmen’s League, 715 F.2d at 901.
95 Id.
96 Id. at 924–25.
97 See id.
98 See, e.g., Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. 21,992, 21,994–95 (proposed Apr. 20, 2000).
99 Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162, 1163 (9th Cir. 1998).
100 Id. at 1164.
101 Id. at 1168. The court emphasized the consistency of the decision with the other solid waste responsibilities of EPA, such as the Resource Conservation and Recovery Act, and the traditional military and navigational missions of the Corps. Id. at 1169.
102 Id. Furthermore, the court also noted that the Corps’s regulations explicitly excluded waste from being fill material because it is regulated under section 402. Id.
103 United States v. United Homes, Inc., No. 98-C-3242, 1999 WL 117701, at *1 (N.D. Ill. Mar. 1, 1999).
104 Id.
105 Id. at *3.
106 Id.
107 Id. at *3–4.
108 Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. 21,292, 21,294 (proposed Apr. 20, 2000).
109 Id. at 21,293.
110 Id.
111 Id.
112 Id.
113 Id.
114 Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. at 21,300.
115 Id.
116 Id. at 21,292.
117 Id. at 21,296.
118 Id. at 21,297.
119 See Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. 31,129, 31,131, 31,143 (May 9, 2002) (to be codified at 33 C.F.R. pt. 323; 40 C.F.R. pt. 232).
120 33 C.F.R. § 323.2(e)(1) (2002); 40 C.F.R. § 232.2.
121 33 C.F.R. § 323.2(e)(2)–(3); 40 C.F.R. § 232.2.
122 Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. at 31,133–34.
123 See Mountaintop Mining, supra note 40, at 11,175; see also Friends of Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1337–38 (D.N.M. 1995) (involving the disposal of overburden from a gold mining operation).
124 See Mountaintop Mining, supra note 40, at 11,175.
125 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 430 (4th Cir. 2003).
126 Id.
127 30 U.S.C. § 1265(b)(3) (2000).
128 Rivenburgh, 317 F.3d at 431.
129 E.g., Bragg v. Robertson, 72 F. Supp. 2d 642, 657 (S.D. W. Va. 1999), aff’d in part, vacated in part on other grounds sub nom. Bragg v. W. Va. Coal Ass’n, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
130 W. Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1282 (S.D. W. Va. 1989), aff’d per curiam, Nos. 90-2034, 90-2040, 1991 WL 75217, at *3 (4th Cir. 1991).
131 See id. at 1285–86.
132 Id. at 1287.
133 Id.
134 Id. The court stated that sediment runoff from valley fills is a “discharge in liquid, semi-liquid, or suspended form.” Id. (quoting Memorandum of Agreement on Solid Waste, 51 Fed. Reg. 8871, 8872 (Mar. 14, 1986)).
135 W. Va. Coal Ass’n v. Reilly, Nos. 90-2034, 90-2040, 1991 WL 75217, at *4 (4th Cir. May 13, 1991) (per curiam).
136 Id.
137 Id.
138 Id.
139 See id. at *5; cf. Hagerty, supra note 44, at 180 (asserting that the 1986 memorandum of agreement addresses an “ambiguity” concerning fill material, but not mentioning that the court of appeals applies the definition from the 1986 memorandum to the disposal activities in the case to conclude that these activities are subject to EPA’s NPDES permitting authority).
140 Friends of Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1342–43 (D.N.M. 1995).
141 Id. at 1342 (alterations in original) (quoting 33 C.F.R. § 323.2(e) (1994)).
142 Id.
143 Bragg v. Robertson, 72 F. Supp. 2d 642, 656–57 (S.D. W. Va. 1999), aff’d in part, vacated in part on other grounds sub nom. Bragg v. W. Va. Coal Ass’n, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
144 Id. at 658.
145 Bragg v. W. Va. Coal Ass’n, 248 F.3d at 286.
146 Id.
147 Duffy, supra note 40, at 177.
148 See id.
149 Gardner, supra note 42, at 148.
150 U.S. Army Corps of Eng’rs et al., Mountaintop Mining/Valley Fill Draft Environmental Impact Statement II.B-5 (2003) (“The COE [Corps] Huntington District has processed more than 160 NWP 21 permitting actions involving fills in West Virginia and Kentucky since the start of 1999.”), available at http://www.epa.gov/region3/mtntop/eis.htm (last visited Apr. 26, 2004) [hereinafter Mountaintop Mining EIS].
151 Issuance of Nationwide Permits, 67 Fed. Reg. 2020, 2039 (Jan. 15, 2002) (stating that the “Corps believes there are many different types of coal mining operations in other parts of the country and . . . that the conditions of the settlement agreement may not be applicable to many of these other operations”).
152 Id. at 2038; see also U.S. Army Corps of Eng’rs, Pre-Construction Notification Requirements for Nationwide Permit 21, Surface Coal Mining Activities 3 (2003) (“Typically, compensatory mitigation consists of on-site []or off-site stream/wetland restoration . . . . However, in some instances, it may be acceptable to allow the use of mitigation banks or an in-lieu fee arrangement . . . . A performance mitigation bond or other appropriate financial instruments may also be required . . . .”), available at http://www.orn.usace.army.mil/cof/notices/pcnnwp21.pdf (last visited Apr. 26, 2004) [hereinafter Pre-Construction Notification].
153 Issuance of Nationwide Permits, 67 Fed. Reg. at 2020.
154 Pre-Construction Notification, supra note 152, at 1 (“It is imperative that all mining operations that are currently discharging, or propose to discharge dredged or fill material into waters of the United States contact this office immediately to apply for a Section 404 permit.”).
155 See Memorandum from U.S. EPA & U.S. Army Corps of Engineers, to U.S. Army Corps of Engineers District Commanders & U.S. EPA Regional Administrators 1 (May 19, 2003) (“In this regard, we are becoming increasingly aware of circumstances in Kentucky, West Virginia, and Ohio involving coal mining operations that may be discharging dredged or fill material in waters of the United States without current CWA authorization or a permit application to the Corps of Engineers.”) (on file with author).
156 See id. at 1–2 (“We believe it is necessary to provide information as soon as possible to the coal mining industry that reiterates CWA Section 404 permitting requirements and prompts those that may be discharging in waters to apply immediately to the Corps for a CWA Section 404 permit.”).
157 Notice of Intent to Prepare an Environmental Impact Statement, 64 Fed. Reg. 5778, 5778 (Feb. 5, 1999).
158 See Mountaintop Mining EIS, supra note 150, at ES-1.
159 Id. at ES-2. In 1998, 280 million tons of coal was extracted from the region, but over 28 billion tons of high-quality coal remains. Id.
160 Id. at ES-3. The studies noted that 1200 miles of headwater streams had been impacted by mountaintop mining and valley fills from 1992–2002 and that 724 miles of streams were covered by valley fills from 1985–2001. Id. at ES-3 to ES-4.
161 Id. at ES-4 to ES-5.
162 See id. at ES-9.
163 Id. at ES-5.
164 Mountaintop Mining EIS, supra note 150, at II.B-3 tbl.II.B-1.
165 Id.
166 Id. at II.B-9.
167 Id. at ES-9.
168 Id. at ES-5.
169 Id. at II.B-8.
170 Mountaintop Mining EIS, supra note 150, at II.B-5.
171 Id. at II.B-9.
172 Id. at II.B-8.
173 Id. at II.B-6.
174 Id. at II.B-9 (“The regulatory framework and process for this alternative would be embodied in an interagency Memorandum of Agreement (MOA) among the regulatory agencies with authorities under the SMCRA or CWA and their respective implementing regulation.”).
175 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927, 930 (S.D. W. Va. 2002), vacated by 317 F.3d 425 (4th Cir. 2003).
176 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 431 (4th Cir. 2003).
177 Kentuckians for the Commonwealth, Appeals Court Overturns Mountaintop Removal Decision, at http://www.kftc.org/pr013003.ivnu (last visited Apr. 26, 2004).
178 Rivenburgh, 204 F. Supp. 2d at 946. The court further declared the recently adopted new definition of fill material by the two agencies to be ultra vires just days before the rule was made final on May 9, 2002. Id. at 945.
179 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 206 F. Supp. 2d 782, 808 (S.D. W. Va. 2002), vacated by 317 F.3d 425 (4th Cir. 2003) (clarifying the injunction issued and limiting its future scope to the Huntington District of the Corps).
180 467 U.S. 837, 842–43 (1984).
181 Id. at 842 (stating that “the question [is] whether Congress has directly spoken to the precise question at issue”).
182 Id. at 843 (stating that “the question for the court is whether the agency’s [interpretation] is based on a permissible construction of the statute”).
183 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 441 (4th Cir. 2003) (suggesting that the district court relied upon section 404(f)(2) of the CWA, the CWA relation to the RHA, and the CWA relation to SMCRA as indicia of congressional intent with regards to the definition of fill material).
184 Id. at 937. Section 404(f)(2) states that “any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject . . . shall be required to have a permit under this section.” 33 U.S.C. § 1344(f)(2) (2000).
185 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927, 935–36 (S.D. W. Va. 2002), vacated by 317 F.3d 425 (4th Cir. 2003).
186 Id. at 941–42.
187 See id. at 932–33, 946–47.
188 See Rivenburgh, 317 F.3d at 448.
189 Id. at 438. This approach decisively rejects the argument that the new effects-based definition by the agencies “obviate[s] the plaintiffs’ claims.” Contra Hagerty, supra note 44, at 181.
190 Rivenburgh, 317 F.3d at 441.
191 Id. at 441–42.
192 See id. at 442.
193 Id. (citing United States v. Republic Steel Corp., 362 U.S. 482 (1960)).
194 Id. at 443.
195 Id. at 444, 448.
196 Rivenburgh, 317 F.3d at 445.
197 Id. at 446 n.3.
198 Id. at 447.
199 Id. at 451 (Luttig, J., concurring in the judgment in part and dissenting in part) (emphasizing that the Army Corps does not state its interpretation of its 1977 regulation).
200 Id. at 451–52. (noting that it is not obvious how the disposal of spoil into streams has the primary purpose of making dry land or elevating the streambed).
201 Id. at 452. Judge Luttig’s opinion, in contrast to the majority’s opinion, offers support for the contention that he is “eager to be perceived as more moderate in anticipation of a Supreme Court opening.” See Deborah Sontag, The Power of the Fourth: How One Appellate Court Is Quietly Moving America Ever Rightward, N.Y. Times, Mar. 9, 2003, § 6 (Magazine), at 43.
202 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 269 F. Supp. 2d 710, 713 (S.D. W. Va. 2003).
203 Id. at 712.
204 Id. at 715 (“Under the permit, if approved, Beech Fork proposes to fill 9,220 feet of jurisdictional waters of the United States.”).
205 Id. at 716.
206 Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. 21,292, 21,293 (proposed Apr. 20, 2000) (stating that “the term ‘fill material’ under the CWA is important in determining whether a proposed discharge of a pollutant is subject to regulation under section 404 or section 402”).
207 See id.
208 Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. 31,129, 31,135 (May 9, 2002) (to be codified at 33 C.F.R. pt. 323; 40 C.F.R. pt. 232). One has to doubt this conclusion when “[t]he comments of environmental groups and the various form letters were strongly opposed to the proposal [while] . . . comments from the regulated community generally supported the proposal.” See id. at 31,131. The regulated community’s support for the final definition must be even stronger.
209 Id. at 31,135.
210 See id.
211 E.g., Regulatory Programs of the Corps, 42 Fed. Reg. 37,122, 37,130 (July 19, 1977).
212 Id.
213 See Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. 21,292, 21,300 (proposed Apr. 20, 2000).
214 See Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. at 31,134. The agencies state that the “rule does not affect the application of section 402 of the CWA to discharges of pollutants other than fill material that may be associated with such things as solid waste landfill structures and mine impoundments.” Id. (emphasis added). These examples are just the beginning, because the new definition of fill material is not limited to the inclusion of only landfill structures and mine impoundments; it includes anything that is not trash or garbage. See 33 C.F.R. § 323.2(e)(2)–(3) (2003); 40 C.F.R. § 232.2.
215 See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 445 (4th Cir. 2003) (“[W]hen the Corps issued the permit . . . it was authorized to regulate discharges of fill, even for waste, unless the fill amounted to effluent that could be subjected to effluent limitations.”).
216 See supra text accompanying note 214.
217 See supra text accompanying note 214.
218 See 33 U.S.C. § 1342(a)(1) (2000) (stating that, except as provided in section 404, EPA may issue NPDES permits for discharges of pollutants).
219 See supra text accompanying note 214.
220 Compare 33 C.F.R. § 323.2(m) (2001), with Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. 31,129, 31,133 (May 9, 2002) (to be codified at 33 C.F.R. pt. 323; 40 C.F.R. pt. 232).
221 33 C.F.R. § 323.2(e) (2001) (“[Fill material] does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under Section 402.”).
222 Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. at 31,133.
223 See id. (stating that the two agencies disagree with comments that the expansion of section 404 jurisdiction is inappropriate).
224 Gardner, supra note 42, at 147.
225 Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. at 21,296.
226 Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. at 31,133.
227 See id. at 31,135.
228 Revisions to the Regulatory Definitions of “Fill Material,” 65 Fed. Reg. at 21,295–96 (“Also, today's proposal recognizes that discharges from coal mining activities that are covered by a proposed or final EPA effluent guideline . . . are not fill material and would remain subject to regulation under CWA section 402”.).
229 See id. (“We welcome comment on all aspects of today's proposal, and especially solicit comment on whether the proposal's reference to discharges covered by proposed or final effluent limitations guidelines and standards . . . covered by an NPDES permit fully encompasses the range of discharges properly subject to section 402 of the Act.”).
230 See Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. at 31,135 (“[T]he language in the actual rule could raise questions as to whether the reference to effluent guidelines was meant to refer only to those in existence at the time today’s rule was promulgated or whether the reference was prospective.”).
231 See id. (claiming that “EPA has never sought to regulate fill material under effluent guidelines”).
232 Id. at 31,133 (claiming that “it is important to use an objective, effects-based test”); Permits for Activities in Navigable Waters, 40 Fed. Reg. 31,320, 31,320 (July 25, 1975) (stating the comments received addressed “the dual purposes of the FWPCA [CWA]: First, the development of a workable program; and, second, the needs of water quality”).
233 See supra Part III.C.
234 Revisions to the Regulatory Definition of “Fill Material,” 67 Fed. Reg. at 31,133. The ability of this regulatory change to provide certainty to the regulated community in contexts such as mountaintop mining and valley fills may have been overestimated. See supra note 156 and accompanying text.