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Clean Water Act debate – gaping loophole or safeguards in place?

Our colleague Dave Barrows, who joined our firm in 1999 has more than 40 years’ experience working on Section 404 regulatory issues, of which 23 years were with the U.S. Army Corps of Engineers (USACE) including serving as Chief of Regulatory Technical Section at Corps Headquarters, and Chief of Regulatory in three Corps Districts.

Dave also served as Regulatory Advisor to the Assistant Secretary of the Army (Civil Works). During his career, he prepared hundreds of environmental assessments and environmental impact statements involving Section 404 wetlands permitting, compliance, enforcement, jurisdiction and mitigation.

Recently, E&E environmental reporter Hannah Northey reached out to Dave for background and clarity on a February 2022 filing to the EPA and USACE by the Sierra Club, Earthworks and more than a dozen smaller environmental organizations asking the agencies to address what the groups call a “gaping loophole in the Clean Water Act’s 404 ‘dredge and fill’ program.” Specifically, the groups urged the two federal agencies to use the ongoing WOTUS rulemaking process “to no longer treat toxic mine waste as fill material.”

Prompted by E&E’s outreach, Dave’s commentary below provides valuable perspective about the ongoing debate:

“Twenty years ago, USACE finalized a change in regulation that deleted the so-called primary purpose test from the definition of fill. Prior to the change in 2002, USACE did not regulate fill when the primary purpose of the pollutant discharge was to dispose of waste material. Following the change, USACE regulated all pollutant discharges that met the definition of fill material, which included activities not previously regulated under section 404.”

“The February 2022 filling clearly objects to the government removing the primary purpose test from the definition of fill and recommends reinstatement. From the environmentalist’s perspective, the change in the definition of fill established a path to permit the placement of overburden, slurry, or tailings or similar mining-related materials, which is technically true. It is also true that the assertion of creating a “gaping loophole in the Clean Water Act’s 404 ‘dredge and fill’ program” deserves full and open debate as EPA and USACE continue the rulemaking process. My personal experience leads me to believe current USACE regulatory compliance safeguards will lessen the effectiveness of the loophole argument.”

“Prior to the fill definition change in 2002, EPA regulated all end of pipe pollutant discharges under section 402, except for discharges of dredged material regulated under Section 404. The change in the definition of fill expanded the list of end of pipe discharges USACE regulates including mine related activities such as slurry waste and mine tailings. While this change in the definition of fill did establish a permitting path for certain fill materials that did not previously exist, I know well that USACE conducts a rigorous evaluation under the 404(b)(1) Guidelines (Guidelines) before permitting the discharge of fill material to jurisdictional waters. This hard look ensures that the discharge complies with the restrictions in the Guidelines.”

“The environmental groups behind the February 2022 filing should be encouraged to know that USACE does not have the authority to permit a discharge that fails to comply with all the restrictions. Restrictions directly related to potentially toxic fill material are found at 40 CFR 230.10 and restated here.

(b) No discharge of dredged or fill material shall be permitted if it: (1) Causes or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard; (2) Violates any applicable toxic effluent standard or prohibition under section307 of the Act;….(c) Except as provided under Section 404 (b)(2), no discharge of dredged or fill material shall be permitted which causes or contributes to significant degradation of the waters of the United States.”

“To ensure compliance with the Guidelines, USACE requires that permit applicants demonstrate either that testing of the fill material is not required or request USACE approval of its Sampling and Analysis to demonstrate that the discharges of the fill material would comply with the restrictions. Testing could include analytical testing of the fill material to determine if it contains toxic substances, and toxicity testing (bioassay and bioaccumulation) to determine if the fill material would have an adverse effect on the biota.”

A robust, transparent, and inclusive process is the foundation of government rulemaking. Having a thorough understanding of that process, combined with in-depth knowledge of the relevant regulations and policy, is critical to ensuring the public’s voice is both loud and clear. At the end of the process, the agency must base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre‐rule and proposed rule stages. The February 2022 filing that opened the door for the E&E reporter’s inquiry represents a necessary and welcome component of good governance.

For more about the judicial actions on WOTUS and the ongoing rulemaking, click here for a recent analysis by our colleague Larry Liebesman, who spent more than 10 years as an environmental litigator at the US Justice Department.


The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.


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