21292 Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules

DEPARTMENT OF DEFENSE

Department of the Army, Corps of

Engineers

33 CFR Part 323

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 232

[FRL–6582–8]

Proposed Revisions to the Clean Water

Act Regulatory Definitions of ‘‘Fill

Material’’ and ‘‘Discharge of Fill

Material’’

AGENCIES: U.S. Army Corps of

Engineers, Department of the Army,

DOD; and Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: The Department of the Army

(Army) and the Environmental

Protection Agency (EPA) today are

jointly proposing to revise their Clean

Water Act (CWA) regulations defining

the term ‘‘fill material.’’ At present, the

Army and EPA definitions of ‘‘fill

material’’ differ from each other, and

this has resulted in regulatory

uncertainty and confusion. The existing

Army definition defines ‘‘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 water body, and

specifically excludes from that

definition any material discharged into

the water primarily to dispose of waste,

as that activity is regulated under

section 402 of the Clean Water Act. The

existing EPA definition defines ‘‘fill

material’’ as any pollutant which

replaces a portion of the waters of the

U.S. with dry land or which changes the

bottom elevation of such waters,

regardless of the purpose of the

discharge. Today’s proposal would

amend both the Army and EPA

definitions of ‘‘fill material’’ to provide

a single definition of that term, and thus

ensure proper, consistent, and more

effective regulation under the CWA of

materials that have the effect of

replacing any portion of a water of the

U.S. States with dry land or of changing

the bottom elevation of any portion of

a water of the U.S. Today’s proposal

also would make a change to the

definition of the term ‘‘discharge of fill

material’’ in order to provide further

clarification of this issue.

DATES: Written comments must be

submitted by June 19, 2000.

ADDRESSES: Send written comments on

the proposed rule to the Office of the

Chief of Engineers, ATTN CECW–OR,

20 Massachusetts Avenue, Washington,

DC 20314–1000.

We request that commenters submit

any references cited in their comments.

We also request that commenters submit

an original and 2 copies of their written

comments and enclosures. Commenters

that want receipt of their comments

acknowledged should include a selfaddressed, stamped envelope. All

written comments must be postmarked

or delivered by hand. No facsimiles

(faxes) will be accepted.

A copy of the supporting documents

for this proposed rule is available for

review in Room 6225 at the U.S. Army

Corps of Engineers’ Pulaski Building,

located at 20 Massachusetts Avenue,

Washington, DC 20314–1000. For access

to docket materials, call (202) 761–0199

between 9 a.m. and 3:30 p.m. for an

appointment. Comments received on the

proposed rule will also be available for

examination in Corps District or

Division offices.

FOR FURTHER INFORMATION CONTACT: For

information on the proposed rule,

contact either Mr. Thaddeus Rugiel,

U.S. Army Corps of Engineers, ATTN

CECW–OR, 20 Massachusetts Avenue,

Washington, DC 20314–1000, phone:

(202) 761—0199, e-mail: Thaddeus.

J.Rugiel@ HQ02.USACE.ARMY.MIL, or

Mr. John Lishman, U.S. Environmental

Protection Agency, Office of Wetlands,

Oceans and Watersheds (4502F), Ariel

Rios Building, 1200 Pennsylvania

Avenue NW, Washington, DC 20460,

phone: (202) 260–9180, e-mail:

lishman.john@ epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Plain Language

In compliance with President

Clinton’s June 1, 1998, Executive

Memorandum on Plain Language in

government writing, this preamble is

written using plain language. Thus, the

use of ‘‘we’’ in this action refers to EPA

and the U.S. Army Corps of Engineers

(Corps), and the use of ‘‘you’’ refers to

the reader.

B. Potentially Regulated Entities

Persons or entities that discharge

material to waters of the U.S. that has

the effect of replacing any portion of a

water of the U.S. with dry land or

changing the bottom elevation of any

portion of a water of the U.S. could be

regulated by today’s proposed rule. The

CWA generally prohibits the discharge

of pollutants into waters of the U.S.

without a permit issued by EPA or a

State approved by EPA under section

402 of the Act, or, in the case of dredged

or fill material, by the Corps or an

approved State under section 404 of the

Act. Today’s proposal addresses the

CWA section 404 program’s definitions

of ‘‘fill material’’ and ‘‘discharge of fill

material,’’ which are important for

determining whether a particular

discharge is subject to regulation under

CWA section 404. In developing today’s

proposal to reconcile the agencies

differing definitions, we have carefully

considered our current regulatory

practice and the terms of a 1986

Memorandum of Agreement Between

the Assistant Administrators for

External Affairs and Water, U.S.

Environmental Protection Agency, and

the Assistant Secretary of the Army for

Civil Works Concerning Regulation of

Discharges of Solid Waste Under the

Clean Water Act (‘‘1986 Solid Waste

MOA’’). The 1986 Solid Waste MOA

sets out a number of factors to help

determine whether material is subject to

the CWA under section 404 or 402.

Today’s proposal does not alter current

practice, but rather is intended to clarify

what constitutes ‘‘fill material’’ subject

to CWA section 404. Examples of

entities potentially regulated include:

Category Examples of potentially affected entities

State/Tribal governments or instrumentalities ........ State/Tribal agencies or instrumentalities that discharge material that has the effect of replacing any portion of a water of the U.S. with dry land or changing the bottom elevation

of a water of the U.S.

Local governments or instrumentalities ................. Local governments or instrumentalities that discharge material that has the effect of replacing any portion of a water of the U.S. with dry land or changing the bottom elevation of a

water of the U.S.

Federal government agencies or instrumentalities Federal government agencies or instrumentalities that discharge material that has the effect

of replacing any portion of a water of the U.S. with dry land or changing the bottom elevation of a water of the U.S.

Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules 21293

Category Examples of potentially affected entities

Industrial, commercial, or agricultural entities ........ Industrial, commercial, or agricultural entities that discharge material that has the effect of

replacing any portion of a water of the U.S. with dry land or changing the bottom elevation

of a water of the U.S.

Land developers and landowners .......................... Land developers and landowners that discharge material that has the effect of replacing any

portion of a water of the U.S. with dry land or changing the bottom elevation of a water of

the U.S.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities that are

likely to be regulated by this action.

This table lists the types of entities that

we are now aware of that could

potentially be regulated by this action.

Other types of entities not listed in the

table could also be regulated. To

determine whether your organization or

its activities are regulated by this action,

you should carefully examine the

applicability criteria in § 230.2 of Title

40 of the Code of Federal Regulations,

as well as the preamble discussion in

section II of today’s proposal. If you

have questions regarding the

applicability of this action to a

particular entity, consult the persons

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

C. Overview of Clean Water Act

The CWA is the primary federal

statute addressing the discharge of

pollutants to waters of the U.S. Section

301(a) of the CWA generally prohibits

such discharges except as may be

authorized by a permit issued under the

Act. Two different permitting regimes

are created by the Act: (1) section 404

permits, primarily administered by the

Corps, addressing the discharge of

dredged or fill material, and (2) section

402 permits (commonly referred to as

National Pollutant Discharge

Elimination System, or ‘‘NPDES’’

permits), administered by EPA and the

States, which address the discharge of

all other pollutants. The CWA defines

the term ‘‘pollutant’’ to include

materials such as rock, sand, and cellar

dirt that often serve as ‘‘fill material.’’

The CWA, however, does not define the

term ‘‘fill material,’’ leaving it to the

agencies to adopt a definition consistent

with the statutory language and scheme.

Providing a clear and consistent

definition for 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.

In keeping with the fundamental

difference in the nature and effect of the

discharge that each program was

intended by Congress to address,

sections 404 and 402 employ different

approaches to regulating the discharges

to which they apply. The section 402

program is focused on (although not

limited to) discharges such as

wastewater discharges from industrial

operations and sewage treatment plants,

stormwater and the like. See, e.g., CWA

sections 304 (b) and (d) and 402(p).

Pollutant discharges are controlled

under the section 402 program

principally through the imposition of

effluent limitations, which are

restrictions on the ‘‘quantities, rates,

and concentrations of chemical,

physical, biological and other

constituents which are discharged from

point sources into navigable waters’’

(CWA section 502(11)). Section 402

permits must include effluent

limitations that reflect treatment with

available pollution control technology,

and any more stringent limitations

necessary to meet water quality

standards for the receiving water (CWA

section 301(b)). There are no statutory or

regulatory provisions under the section

402 program designed to address

discharges that convert waters of the

U.S. to dry land. Moreover, the section

402 permitting process does not require

an evaluation of alternatives to a

proposed discharge or mitigation for

unavoidable impacts.

The section 404 permitting program

differs from the section 402 program in

several fundamental respects. First,

section 404 focuses exclusively on two

materials: dredged material and fill

material. The term ‘‘fill material’’ clearly

contemplates material that fills in a

water body, and thereby converts it to

dry land or changes the bottom

elevation. Fill material differs

fundamentally from the types of

pollutants covered by section 402

because the principal environmental

concern is the loss of a portion of the

water body itself. For this reason, the

section 404 permitting process focuses

on different considerations than the

section 402 permitting program. Section

404(b) of the CWA directs the Corps to

apply Guidelines promulgated under

section 404(b)(1) of the CWA, which in

turn must be based on criteria

comparable to the criteria contained in

section 403(c) of the CWA. Among other

things, those criteria expressly require

consideration of ‘‘other possible

locations and methods of disposal’’ and

‘‘land-based alternatives.’’

The section 404(b)(1) Guidelines do

provide for consideration of the effects

of chemical contaminants on water

quality in a number of ways, specifically

requiring compliance with applicable

State water quality standards (40 CFR

230.10(b)(1)), toxic effluent limits or

standards established under CWA

section 307 (40 CFR 230.10(b)(2)), and

appropriate use of chemical and

biological testing to evaluate

contaminant effects (40 CFR 230.11(d)

and (e); 230.60). However, because

section 404 was intended by Congress to

provide a vehicle for regulating

materials whose effects include the

physical conversion of waters to nonwaters or other physical alterations of

aquatic habitat, the section 404(b)(1)

Guidelines go beyond such a water

quality based approach to require

numerous additional considerations

before a section 404 permit may be

issued. These include careful

consideration of the effects of the

discharge on the aquatic ecosystem as a

whole, as well as evaluation of

alternatives to the discharge and

measures to minimize and compensate

for unavoidable adverse effects.

Under the section 404(b)(1)

Guidelines, discharges having

significant adverse effects on aquatic

ecosystems are not allowable (40 CFR

230.10(c) (2) and (3)). As a result, the

Guidelines require evaluation of the

effects of discharges on the aquatic

ecosystem (40 CFR 230.11(e)), including

cumulative impacts and secondary

effects (40 CFR 230.11(g) and (h)). The

Guidelines also set forth specific

provisions for considering impacts on

the aquatic ecosystem, including effects

on aquatic organisms in the food web

and other wildlife (40 CFR part 230,

subpart D). In addition, the Guidelines

do not allow discharges that would have

significant adverse effects on human

health, recreation, aesthetic, and

economic values (40 CFR 230.10(c) (1)

and (4)). The Guidelines set forth

specific provisions for considering such

impacts (40 CFR part 230, subpart F).

In addition to providing for careful

assessment of the overall effects of the

discharge on aquatic ecosystems and

other amenities, the Guidelines do not

21294 Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules

allow a discharge if there are practicable

alternatives with less adverse effects on

the aquatic ecosystem (40 CFR

230.10(a)). The Guidelines further

require that if a discharge is allowed,

appropriate and practicable steps must

be taken to minimize potential adverse

effects to the aquatic ecosystem and

mitigate for unavoidable impacts (40

CFR 230.10(d)). They also identify a

range of such potential measures for

consideration in the permitting process

(40 CFR part 230, subpart H). The

Guidelines also provide for mitigation to

compensate for unavoidable adverse

effects. See, February 1990

Memorandum of Agreement Between

the Environmental Protection Agency

and the Department of the Army

Concerning the Determination of

Mitigation Under the Clean Water Act

section 404(b)(1) Guidelines.

D. Discussion of the Existing Corps and

EPA Definitions of Fill Material

Prior to 1977, both the Corps and EPA

had defined ‘‘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. * * *’’ 40 FR 31325 (July 25,

1975); 40 FR 41291 (September 5, 1975).

In 1977, the Corps amended its

definition of ‘‘fill material’’ to add a

‘‘primary purpose test,’’ and specifically

excluded from that definition material

that was discharged primarily to dispose

of waste. 42 FR 37130 (July 19, 1977).

This change was adopted by the Corps

because it recognized that some

discharges of solid waste materials

technically fit the definition of fill

material; however, the Corps believed

that such waste materials should not be

subject to regulation under the CWA

section 404 program. Specifically, the

Corps’ definition of ‘‘fill material,’’

unchanged since 1977, currently reads

as follows:

(e) The term ‘‘fill material’’ means any

material used for the primary purpose of

replacing an aquatic area with dry land or of

changing the bottom elevation of an [sic]

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.’’ 33 CFR 323.2(e) (emphasis

added).

EPA did not amend its regulations to

adopt a ‘‘primary purpose test’’ similar

to that used by the Corps. Instead, the

EPA regulations at 40 CFR 232.2

currently define ‘‘fill material’’ as ‘‘any

‘pollutant’ which replaces portions of

the ‘waters of the United States’’ with

dry land or which changes the bottom

elevation of a water body for any

purpose’’ (emphasis added). EPA’s

definition focuses 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.

E. Problems and Issues With the

Existing Definitions

These differing definitions of the term

‘‘fill material’’ have resulted in

inconsistencies which impede the fair

and effective implementation of the

CWA in a number of ways. For example,

in the case of the Corps definition, use

of a ‘‘primary purpose test’’ appears to

require the Corps to make a subjective

determination about the primary

purpose of a prospective discharge. This

subjective determination becomes even

more problematic to make where the

proposed discharge has multiple

purposes. The ‘‘primary purpose test’’

also allows any prospective discharger

or project proponent to seek to affect

which regulatory regime would apply

by simply asserting a purported

purpose. This definition also lends itself

to the possible exclusion of materials

that are most commonly used for the

very purpose of raising the elevation of

an area (i.e., of filling a water of the

U.S.) if the materials are a waste product

of some other activity.

The confusion caused by the ‘‘primary

purpose test’’ has also engendered

extensive litigation. We are concerned

that if the inconsistencies and

ambiguities in the regulatory definitions

of ‘‘fill material’’ are not corrected,

further litigation would arise and future

court decisions could reduce the ability

of the CWA section 404 program to

protect the quality of the aquatic

environment, and the overall public

interest.

The court decision that most clearly

illustrates the serious problems caused

by the ‘‘primary purpose test’’ is the

Ninth Circuit Court of Appeals decision

in Resource Investments Incorporated v.

U.S. Army Corps of Engineers, 151 F.3d

1162 (9th Cir. 1998) (the RII case). This

case involved a CWA section 404 permit

application for a solid waste landfill

proposed to be built in waters of the

U.S. located in the State of Washington.

The Corps’ Seattle District Engineer

denied the section 404 permit, on the

grounds that a solid waste landfill at

that location could contaminate an

important ‘‘sole source’’ aquifer, and on

the grounds that environmentally safer

practicable alternatives were available

to handle the region’s solid waste. When

the permit applicant sued, the District

Court upheld the Corps’ permit denial,

but the Ninth Circuit Court of Appeals

reversed, on a number of grounds.

One of the Ninth Circuit’s conclusions

in the RII decision was that the

‘‘primary purpose’’ test in the Corps’’

definition of the term ‘‘fill material’’

meant that the Corps could not require

a CWA section 404 permit for pollutants

that the applicant proposed to discharge

into waters of the U.S. relating to his

proposed landfill. Based on the Corps’

definition of fill material, the Ninth

Circuit stated that no section 404 permit

was needed for the solid waste that

would be disposed of in the proposed

landfill. Moreover, the Ninth Circuit

also determined that the layers of gravel,

low permeability soil, and synthetic

liner that would underlie the solid

waste landfill did not constitute fill

material. The Court reasoned that the

‘‘primary purpose’’ of these materials

(e.g., soil and gravel) to be placed in the

waters of the U.S. to underlie the

landfill was not ‘‘changing the bottom

elevation of a water body’’ or ‘‘replacing

an aquatic area with dry land.’’ Rather,

the court found that its primary purpose

was the installation of a leak detection

and collection system for that landfill.

The court did not address the material

that would be used to construct roads

and berms that were part of the project.

The Ninth Circuit’s decision in the RII

case illustrates the inherent problems in

the ‘‘primary purpose’’ test. In RII, the

litigant was successful in excluding

from regulation under the CWA section

404 traditional fill material, by alleging

an alternative primary purpose.

Typically fill serves some purpose other

than just creating dry land or changing

a water body’s bottom elevation. Thus,

if this approach to interpreting the

Corps’ ‘‘primary purpose test’’ were to

be taken to its extreme conclusion, the

unreasonable end result could be that

almost any traditional fill material

proposed to be placed in waters of the

U.S. does not need a section 404 permit.

Such an interpretation would be clearly

contrary to the intent of Congress

expressed in the plain words of CWA

sections 404 and 301, which require that

any ‘‘fill material’’ to be placed in any

water of the U.S. must be legally

authorized by a permit under CWA

section 404.

These problems can be avoided by

focusing on the effect of the material to

be discharged rather than the purpose.

For example, in the decision of the Fifth

Circuit Court of Appeals in Avoyelles

Sportsmens League v. Marsh, 715 F. 2d.

897 (5th Cir. 1983), the Court effectively

interpreted the ‘‘primary purpose test’’

as an ‘‘effects based’’ definition of ‘‘fill

material.’’ In the words of the Fifth

Circuit:

Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules 21295

* * * the burying of the unburned material,

as well as the discing, had the effect of filling

in the sloughs on the tract and leveling the

land. The landowners insist that any leveling

was ‘‘incidental’’ to their clearing activities

and therefore, the material was not deposited

for the ‘‘primary purpose’’ of changing the

character of the land. The district court

found, however, that there had been

significant leveling * * * Certainly, the

activities were designed to ‘‘replace the

aquatic area with dry land.’’ Accordingly, we

hold that the district court correctly

concluded that the landowners were

discharging ‘‘fill material’’ into the wetlands.

(Id. At 924–925; emphasis added).

Thus, in the Avoyelles decision the

Fifth Circuit essentially held that if the

effect of material discharged into waters

of the U.S. is fill, then that material

properly is treated as fill material

needing a CWA section 404 permit.

Other litigation which reflects the

confusion caused by the ambiguities of

the ‘‘primary purpose test’’ originated in

the District Court for the Southern

District of West Virginia (Bragg v.

Robertson, (Civil Action No. 2:98–636,

S. D. W. Va.)) and currently is the

subject of an appeal to the U.S. Court of

Appeals for the Fourth Circuit. The

Bragg case involves the discharge of

large volumes of rock, sand, and earth

(i.e., surface mining overburden) into

waters in West Virginia as part of the

process of ‘‘mountaintop removal’’

surface coal mining. The Corps has

historically regulated this type of

discharge, commonly known as ‘‘valley

fills,’’ under CWA section 404 general

and individual permits (permits under

the Surface Mining Control and

Reclamation Act (SMCRA) are also

required). Among several claims in

Bragg was the assertion that this rock

and soil overburden should be regulated

under CWA section 402. On December

23, 1998, a settlement agreement was

reached among the federal defendants,

West Virginia Department of

Environmental Protection and the

plaintiffs to resolve all claims against

the federal defendants. Under the

settlement agreement, the plaintiffs

agreed not to challenge Corps’ authority

to regulate as ‘‘fill material’’ under CWA

Section 404 various types of material

(e.g., rock, sand, and earth) generated by

the coal mining industry in West

Virginia and placed in waters of the U.S.

On June 17, 1999, the District Court

approved the agreement, finding that

the agreement ‘‘accords with the law

and is fair, reasonable and faithful to the

objectives of SMCRA and CWA.’’ 54

F.Supp.2d 653, 665 (S.D.W.Va. 1999).

However, an October 1999

Memorandum Opinion and Order by the

District Court addressing claims against

the West Virginia Department of

Environmental Protection under

SMCRA contains obiter dicta, based

upon the Corps’ primary purpose test,

indicating that the Corps lacked

authority to regulate under CWA section

404 the placement into waters of the

U.S. of rock, sand, and earth overburden

from coal surface mining operations,

because the ‘‘primary purpose’’ of the

discharge was waste disposal.

In contrast to the use of a ‘‘primary

purpose test,’’ the EPA regulations

currently define ‘‘fill material’’ as

‘‘* * * any ‘pollutant’ which replaces

portions of the ‘waters of the United

States’ with dry land or which changes

the bottom elevation of a water body for

any purpose’’ (emphasis added). This

approach, which focuses on whether the

material would have the effect of

replacing portions of waters of the U.S.

with dry land, or of changing the bottom

elevation of such waters, is less

ambiguous and subjective than use of a

‘‘primary purpose test.’’ However, we

believe that this definition needs

clarification, because, read literally, it

could subject to regulation under CWA

section 404 certain pollutants that have

been, are being, and should be regulated

by the technology and water quality

based standards used in the section 402

program. For example, industrial waste

or sewage may contain suspended solids

which ultimately will settle to the

bottom following discharge. Although

this would not replace waters with dry

land, this could have effects on the

water body’s bottom elevation. Where

such pollutants are covered by proposed

or final effluent limitations guidelines

and standards under section 301, 304, or

306 of the CWA or the discharge is

covered by a NPDES permit issued

under section 402 of the CWA, the

proposed rule would exclude the

discharge from the definition of fill.

II. Discussion of Proposed Rule

In order to ensure a clear, effective,

and consistent regulatory approach, the

Corps and EPA today are proposing

identical definitions of the term ‘‘fill

material.’’ In particular, we believe that

regardless of the purpose of a

prospective discharge, the definition of

‘‘fill material’’ should cover material

that has the effect of fill.

Accordingly, today’s proposal would

amend both the Corps’ definition of ‘‘fill

material’’ at 33 CFR 323.2(e) and the

EPA’s definition at 40 CFR 232.2 to

provide that ‘‘fill material’’ means

material that has the effect of replacing

any portion of a water of the U.S. with

dry land, or changing the bottom

elevation of any portion of a water of the

U.S. At the same time, it would

specifically exclude from the definition

of fill material discharges subject to EPA

proposed or promulgated effluent

limitation guidelines and standards

under CWA sections 301, 304, and 306,

or discharges covered by a NPDES

permit issued under CWA section 402.

In the revised definition of ‘‘fill

material’’ we have included examples of

certain types of material that often

constitute fill. We wish to emphasize

that these are illustrative clarifying

examples and are not intended to be an

exhaustive list. As today’s rule formally

adopts the effects test, it also is

important that we clarify our intent with

respect to certain materials not

specifically listed within the definition.

The materials include wood chips, coal

mining overburden, certain forms of

solid waste, and material used to

construct solid waste landfills.

With respect to ‘‘wood chips,’’ when

this material is scattered as a result of

the normal use of wood cutting

equipment such as chainsaws, bush

hogs, and similar equipment, the wood

chips would not have the effect of fill,

and thus would not be covered by CWA

section 404 under today’s proposal.

However, some operators of heavy

mechanized equipment place or

stockpile wood chips in wetlands to use

as temporary road material, equipment

pads, or surfacing to facilitate operation

of equipment such as trucks, backhoes,

and excavation equipment. In addition,

in some cases the regular operation of

chipping equipment can result in

stockpiling or mounding of chips in

waters of the U.S. In situations such as

these, because of their quantity or

distribution, the woodchips have the

effect of fill and would be subject to

regulation under CWA section 404.

With regard to proposed discharges of

coal mining overburden, we believe that

the placement of such material into

waters of the U.S. has the effect of fill

and therefore, should be regulated

under CWA section 404. This approach

is consistent with existing practice and

the existing EPA definition of the term

‘‘fill material.’’ In Appalachia in

particular, such discharges typically

result in the placement of rock and

other material in the heads of valleys,

with a sedimentation pond located

downstream of this ‘‘valley fill.’’ This

has required authorization under CWA

section 404 for the discharges of fill

material into waters of the U.S.,

including the overburden and coal

refuse, as well as the berms, or dams,

associated with the sedimentation

ponds. The effect of these discharges is

to replace portions of a water body with

dry land. Therefore, today’s proposal

makes clear that such material is to be

regulated under CWA section 404. Also,

21296 Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules

today’s proposal recognizes that

discharges from coal mining activities

that are covered by a proposed or final

EPA effluent guideline (See e.g., 40 CFR

part 434) are not fill material and would

remain subject to regulation under CWA

section 402. Thus, the effluent

discharged into waters of the U.S. from

sedimentation ponds currently is

regulated under CWA section 402, and

would continue to be so regulated under

today’s proposal. This result would also

be true for other types of activities that

involve various discharges, some of

which are subject to regulation under

CWA section 404 and others of which

are subject to regulation under section

402.

In proposing today’s rule, it is the

intent of the Corps and EPA to ensure

that all activities involving discharge of

pollutants into the waters of the U.S.

associated with coal mining be

regulated effectively to ensure

protection of the aquatic environment.

Consistent with the terms of the 1998

Bragg settlement agreement a

Memorandum of Understanding (MOU)

to coordinate coal mining permit

evaluations in the state was entered into

by the Office of Surface Mining, the Fish

and Wildlife Service, EPA, the Corps,

and the State of West Virginia.

Completed in April 1999, the MOU

describes those discharges that the

agencies believe generally should have

only a minimal effect on waters of the

U.S. and thus could be eligible for

general permit authorization by the

Corps. Prior to that MOU, agency

practice had allowed the authorization

of some discharges that probably should

have received individual permit review.

In addition, the MOU initiated

coordination procedures between CWA

and Surface Mining Control and

Reclamation Act permit reviews that

also has resulted in the development of

technical models for minimizing the

size of proposed coal discharges. The

settlement agreement included the

initiation of a comprehensive

Environmental Impact Statement (EIS)

as well. The EIS is scheduled to be

completed in December 2000 and will

assess current federal and state

authorities for regulating coal mining

discharges in Appalachia and what

measures may be necessary to ensure

protection of human health and the

environment. A draft EIS will be issued

this summer for public comment.

With respect to solid waste, it is

important at the outset to draw a clear

distinction between solid waste

discharged directly into waters of the

U.S. and sanitary solid waste landfills

(the latter is discussed further below).

Under today’s proposed rule, many

forms of solid waste (including

heterogeneous solid waste such as

garbage) could fall within the definition

of ‘‘fill material’’ if such waste were to

be placed directly into waters of the

U.S. This is because most forms of solid

waste, if discharged into a water body,

would have the effect of changing the

bottom elevation of a portion of an

aquatic area, or replacing a portion of

the aquatic area with dry land.

Under today’s proposal, the only

exception would be for those discharges

covered by proposed or final effluent

limitation guidelines and standards

under sections 301, 304, or section 306

of the CWA or an NPDES permit issued

under section 402 of the CWA.

Generally, under these provisions of the

CWA, EPA regulates solid waste

materials that are of a homogeneous

nature normally resulting from a singleindustry site or set of known processes.

For example, such wastes as identified

in 40 CFR part 440, subpart M (placer

mining), 40 CFR part 436, subpart R

(phosphate mining), 40 CFR part 440,

subpart E (titanium mining), 40 CFR

part 436, subpart C (sand and gravel

mining), 40 CFR part 423 (steam electric

power generation), and 40 CFR part 435

(oil and gas extraction). 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 under sections

301, 304 or section 306 of the Clean

Water Act * * * or discharges covered

by an NPDES permit’’ fully

encompasses the range of discharges

properly subject to section 402 of the

Act.

Notwithstanding the fact that the

definition of fill could include many

forms of solid waste, you should not

infer from this fact that either the Corps

or the EPA believes that solid waste

(e.g., trash, debris, automobiles) is an

appropriate or legitimate form of fill

material for which CWA section 404

permits should be or will be granted. In

fact, the opposite is true. As a general

matter, we do not expect that CWA

section 404 authorizations should be, or

are likely to be, granted for proposals to

discharge of fill material consisting of

such solid waste into any water of the

U.S.

In this regard, for many years the

Corps has advised the regulated public

that, as a general rule, such solid waste

is not an acceptable form of fill material

for which CWA section 404 permits can

be issued. For example, all Corps

Nationwide General Permits are subject

to General Condition Number 3, which

reads as follows:

3. Suitable material. No discharge of

dredged or fill material may consist of

unsuitable material (e.g., trash, debris, car

bodies, etc.) and material discharged must be

free from toxic pollutants in toxic amounts

(see section 307 of the Clean Water Act.) (56

FR 59146, Nov. 22, 1991)

In the most recent revision of the

nationwide general permit conditions,

the list of ‘‘unsuitable’’ forms of fill

material has been expanded to include

‘‘asphalt.’’ (See 65 FR Page 12896,

March 9, 2000).

This general condition reflects the

policy that the waters of the U.S. should

not be polluted by discharges of solid

waste, which is generally not a suitable

or appropriate form of ‘‘fill material,’’

for a variety of reasons. For example,

many forms of solid waste, such as

heterogeneous solid waste, junked

automobiles, discarded appliances, or

chemically processed solid waste (e.g.,

heap leach piles) often contain

pollutants (including toxic pollutants)

that could, over time, leach into and

contaminate both the surface waters and

ground water. Consequently, as a

general rule, members of the public

should not seek CWA section 404

authorization for the discharge of such

solid waste directly into the waters of

the U.S., because there is no likelihood

that section 404 permits would be

granted.

Where there is no reasonable prospect

that a Corps District Engineer would

grant a section 404 permit to discharge

solid waste into a water body, it would

be a waste of time for both the applicant

and the Corps for the Corps to have to

accept and process a permit application

for such a proposed discharge. Thus, the

Corps is considering including in its

regulation a provision that would allow

the District Engineer complete

discretion to refuse to process any

permit application to discharge fill

material that the District Engineer

determines to be ‘‘unsuitable fill

material.’’ This would allow Corps

District offices to avoid expending

limited resources processing

applications for the direct discharge into

waters of the U.S. of any form of solid

waste where the District Engineer

determines that there is no reasonable

possibility for the granting of a section

404 permit.

To accomplish this purpose, the

Corps could include within its

regulations at 33 CFR 323.2 a definition

for a new term, ‘‘unsuitable fill

material.’’ That proposed new definition

would read generally as follows:

The term ‘‘unsuitable fill material’’ means

any material proposed to be discharged into

waters of the United States that would fall

under the definition of ‘‘fill material,’’ but

Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules 21297

which the District Engineer determines to

have physical or chemical characteristics that

would make the material unsuitable for a

proposed discharge into waters of the United

States, so that there is no reasonable

possibility that a section 404 permit can be

granted for the proposed discharge of that

particular material. For example the District

Engineer may determine that fill material is

unsuitable because of the potential for the

leaching of contaminants from the fill

material into ground waters or surface

waters, or because the proposed fill material

is too light or unstable to serve reliably for

its intended purpose (e.g., bank stabilization

or erosion control). In most circumstances,

heterogeneous solid waste, discarded

appliances, and automobile or truck bodies

would qualify as unsuitable fill material. In

addition, material containing toxic pollutants

in toxic amounts (see section 307 of the

Clean Water Act) is unsuitable fill material.

The Corps recognizes the fact that

special and exceptional circumstances

can arise whereby material generally

deemed ‘‘unsuitable’’ for direct

discharge into water bodies can be

authorized for discharge, with little or

no risk to the environment, or even to

enhance environmental values. For

example, over the years the Corps has

authorized the creation of a number of

artificial reefs from various types of

discarded ‘‘waste materials.’’ Therefore,

the new definition of ‘‘unsuitable fill

material’’ would not reduce in any way

the discretion of any District Engineer to

authorize the discharge of any waste

material for a beneficial purpose.

Accordingly, we request comment on

adding a definition in the Corps

regulations for the term ‘‘unsuitable fill

material,’’ and on changing Corps

regulations to grant the District Engineer

authority to reject, without further

processing, any permit application for

‘‘fill material’’ that the District Engineer

determines to be ‘‘unsuitable fill

material.’’

Unfortunately, it is well known that,

upon occasion and from time to time,

individuals illegally ‘‘dump’’ solid

waste into wetlands and other aquatic

areas, without having sought any sort of

CWA authorization for those discharges.

Such illegal discharges of solid waste

present an enforcement problem under

the CWA. The EPA will continue to

serve as the lead enforcement agency

regarding such unpermitted discharges

of solid waste.

With respect to solid waste landfills,

our intent has been, and continues to be,

that liners, berms, and other

infrastructure that are constructed of

materials such as rock, sand, gravel,

clay, soil, plastics, and other materials

that have the effect of changing the

elevation of waters of the U.S. should be

regulated under section 404 of the CWA.

In the case of a landfill that has received

an individual Department of the Army

section 404 permit, the subsequent

disposal of solid waste into the landfill,

while subject to regulation under the

Resource Conservation and Recovery

Act (RCRA), would not be subject to

regulation under the CWA. As with

current practice, discharges of leachate

from landfills into waters of the U.S.

would remain subject to CWA section

402.

Our approach today is consistent with

current practice and the 1986 Solid

Waste MOA between the EPA and the

Army that the agencies have continued

to follow in implementing our current

regulations. That MOA sets out a

number of factors in paragraphs 4 and

5 to help determine whether material is

subject to the CWA under 404 or 402,

and today’s proposal has been drafted to

take into account factors similar to those

in the 1986 Solid Waste MOA. In

particular, the proposal’s provision that

material with the effect of fill would be

subject to section 404 is similar to

paragraph B.4.c of the 1986 Solid Waste

MOA (providing that when the

principal effect of the discharge is

physical loss or modification of waters

of the U.S., this is a factor indicating

application of section 404). Similarly,

proposed language excluding from

coverage under section 404 material that

is covered by proposed or promulgated

EPA effluent guidelines or standards is

consistent with paragraph B.5 of the

1986 Solid Waste MOA (providing that

when discharges are in liquid, semiliquid, or suspended form or the

discharge is of homogeneous solid

material, this is a factor indicating

application of section 402).

Additionally, as provided for in

paragraph B.2 of the 1986 Solid Waste

MOA, in cases of unpermitted

discharges of solid waste into waters of

the U.S., EPA will continue to serve as

the lead enforcement agency.

Consistent with the above described

revisions to the definition of ‘‘fill

material,’’ we also are proposing to

revise the definition of the term

‘‘discharge of fill material’’ to further

clarify the issue of section 404

applicability with regard to materials

used to construct solid waste landfills

and placement of coal mining

overburden. In particular, we believe

placement of these materials in waters

of the U.S. is properly subject to

regulation under section 404 of the

CWA. Accordingly, we are proposing a

clarification to the regulations on this

point by adding these placement

activities to the list of examples set out

in the regulations defining the

‘‘discharge of fill material’’ at 33 CFR

323.2(f) and 40 CFR 232.2.

III. Administrative Requirements

A. Paperwork Reduction Act

This action does not impose any new

information collection burden or alter or

establish new record keeping or

reporting requirements. Thus, this

action is not subject to the Paperwork

Reduction Act.

B. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), we must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

review by the Office of Management and

Budget (OMB) and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or Tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action.’’ As such, this action was

submitted to OMB for review. Changes

made in response to OMB suggestions or

recommendations will be documented

in the public record.

C. Executive Order 13132 (Federalism)

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires us to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under section 6 of Executive Order

13132, we may not issue a regulation

21298 Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or we consult with

State and local officials early in the

process of developing the proposed

regulation. We also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This proposed rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. Currently,

under the CWA, any discharge of

pollutants into waters of the U.S.

requires a permit. Today’s proposal

relates solely to whether a particular

discharge is appropriately authorized

under section 402 or section 404 of the

Act. Moreover, the proposed allocation

of authority between these programs is

consistent with existing agency practice.

Thus, the requirements of section 6 of

the Executive Order do not apply to this

rule.

D. Regulatory Flexibility Act (RFA) as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations and small

governmental jurisdictions.

The proposed rule does not impose

any new requirements. Currently, under

the CWA, any discharge of pollutants

into waters of the U.S. requires a permit.

Today’s proposal relates solely to

whether a particular discharge is

appropriately authorized under section

402 or section 404 of the Act. Moreover,

the proposed allocation of authority

between these programs is consistent

with existing agency practice. After

considering the economic impacts of

today’s proposed rule on small entities,

we certify that this action will not have

a significant economic impact on a

substantial number of small entities.

E. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and Tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and Tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

Before promulgating an EPA rule for

which a written statement is needed,

section 205 of the UMRA generally

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including Tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

We have determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, and

Tribal governments, in the aggregate, or

the private sector in any one year. The

proposed rule does not impose any new

requirements. Currently, under the

CWA, any discharge of pollutants into

waters of the U.S. requires a permit.

Today’s proposal relates solely to

whether a particular discharge is

appropriately authorized under section

402 or section 404 of the Act. Moreover,

the proposed allocation of authority

between these programs is consistent

with existing agency practice. Thus,

today’s rule is not subject to the

requirements of sections 202 and 205 of

the UMRA. For the same reasons, we

have determined that this rule contains

no regulatory requirements that might

significantly or uniquely affect small

governments. Thus, today’s rule is not

subject to the requirements of section

203 of UMRA.

F. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (the NTTAA), Public Law

104–113, section 12(d) (15 U.S.C. 272

note), directs us to use voluntary

consensus standards in our regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices etc.) that are adopted

by one or more voluntary consensus

standards bodies. The NTTAA directs

us to provide Congress, through OMB,

explanations when we decide not to use

available and applicable voluntary

consensus standards.

As part of a larger effort, EPA is

undertaking a project to cross-reference

existing voluntary consensus standards

in testing, sampling, and analysis, with

current and future EPA test methods.

When completed, EPA will use this

project to assist in identifying

potentially applicable voluntary

consensus standards that can then be

evaluated for equivalency and

applicability in determining compliance

with future EPA regulations.

This proposed rulemaking does not

involve technical standards. Therefore,

we are not considering the use of any

voluntary consensus standards. We

welcome comments on this aspect of the

proposed rulemaking and specifically,

invite the public to identify any

potentially applicable voluntary

consensus standards and to explain why

such standards should be used in this

regulation.

G. Executive Order 13045

Executive Order 13045, entitled

Protection of Children From

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that we determine (1)

is economically significant as defined

under Executive Order 12866, and (2)

concerns an environmental health or

safety risk that we believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

we must evaluate the environmental

Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules 21299

health or safety effects of the planned

rule on children and explain why the

planned regulation is preferable to other

potentially effective and reasonably

feasible alternatives that we considered.

This regulation is not subject to

Executive Order 13045 because, as

previously discussed, it does not

constitute an economically significant

regulatory action as defined by

Executive Order 12866. Furthermore, it

does not concern an environmental

health or safety risk that we have reason

to believe may have a disproportionate

effect on children.

H. Executive Order 13084

Under Executive Order 13084, we

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian Tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

cost incurred by the Tribal governments,

or we consult with those governments.

If we comply by consulting, Executive

Order 13084 requires us to provide

OMB, in a separately identified section

of the preamble to the rule, a

description of the extent of our prior

consultation with representatives of

affected Tribal governments, a summary

of the nature of their concerns, and a

statement supporting the need to issue

the regulation. In addition, Executive

Order 13084 requires us to develop an

effective process permitting elected

officials and other representatives of

Indian Tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian Tribal governments, nor does it

impose significant compliance costs on

them. Today’s proposal relates solely to

whether a particular discharge is

appropriately authorized under section

402 or section 404 of the Clean Water

Act. Moreover, the proposed allocation

of authority between these programs is

consistent with existing agency practice.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

I. Environmental Documentation

As required by the National

Environmental Policy Act (NEPA), the

Corps prepares appropriate

environmental documentation for its

activities affecting the quality of the

human environment. The Corps has

made a preliminary determination that

today’s proposed rule does not

constitute a major Federal action

significantly affecting the quality of the

human environment, and thus does not

require the preparation of an

Environmental Impact Statement (EIS).

Among the reasons for this conclusion

is the fact that the Corps prepares

appropriate NEPA documents, when

required, covering specific permit

situations. The implementation of the

procedures prescribed in this proposed

regulation would not authorize anyone

(e.g., any landowner or permit

applicant) to perform any work

involving regulated activities in waters

of the U.S. without first seeking and

obtaining an appropriate permit

authorization from the Corps. In

addition, this proposed regulation

merely revises and clarifies the Corps’

and EPA’s respective definitions of the

terms ‘‘fill material’’ and ‘‘discharge of

fill material’’ to allow more objective

determinations, and is consistent with

current practice. Accordingly, the Corps

expects to prepare an environmental

assessment (EA) for the rule.

List of Subjects

33 CFR Part 323

Water pollution control, Waterways.

40 CFR Part 232

Environmental protection,

Intergovernmental relations, Water

pollution control.

Corps of Engineers

33 CFR Chapter II

Accordingly, as set forth in the

preamble 33 CFR part 323 is proposed

to be amended as set forth below:

PART 323—[AMENDED]

1. The authority citation for part 323

continues to read as follows:

Authority: 33 U.S.C. 1344.

2. Amend § 323.2 as follows:

a. Paragraph (e) is revised.

b. In paragraph (f), in the second

sentence, add the words ‘‘placement of

fill material for construction or

maintenance of liners, berms, and other

infrastructure associated with solid

waste landfills; placement of coal

mining overburden;’’, after the words

‘‘utility lines;’’.

The revision reads as follows:

§ 323.2 Definitions.

* * * * *

(e)(1) Except as specified in paragraph

(e)(2) of this section, the term fill

material means material (including but

not limited to rock, sand, and earth) that

has the effect of:

(i) Replacing any portion of a water of

the United States with dry land; or

(ii) Changing the bottom elevation of

any portion of a water of the United

States.

(2) The term fill material does not

include discharges covered by proposed

or final effluent limitations guidelines

and standards under sections 301, 304

or section 306 of the Clean Water Act

(see generally, 40 CFR part 401), or

discharges covered by an NPDES permit

issued under section 402 of the Clean

Water Act.

* * * * *

Dated: April 17, 2000.

Joseph W. Westphal,

Assistant Secretary of the Army (Civil Works),

Department of the Army.

Environmental Protection Agency

40 CFR Chapter I

Accordingly, as set forth in the

preamble 40 CFR part 232 is proposed

to be amended as set forth below:

21300 Federal Register / Vol. 65, No. 77 / Thursday, April 20, 2000 / Proposed Rules

PART 232—[AMENDED]

1. The authority citation for part 232

continues to read as follows:

Authority: 33 U.S.C. 1344.

2. Amend § 232.2 as follows:

a. The definition of ‘‘Fill material’’ is

revised.

b. In the definition of ‘‘Discharge of

fill material,’’ in paragraph (1), add the

words ‘‘placement of fill material for

construction or maintenance of liners,

berms, and other infrastructure

associated with solid waste landfills;

placement of coal mining overburden;’’,

after the words ‘‘utility lines;’’.

The revision reads as follows;

§ 232.2 Definitions.

* * * * *

Fill material. (1) Except as specified

in paragraph (2) of this definition, the

terms fill material means material

(including but not limited to rock, sand,

and earth) that has the effect of:

(i) Replacing any portion of water of

the United States with dry land; or

(ii) Changing the bottom elevation of

any portion of a water of the United

States.

(2) The term fill material does not

include discharges covered by proposed

or final effluent limitations guidelines

and standards under sections 301, 304

or section 306 of the Clean Water Act

(see generally, 40 CFR part 401), or

discharges covered by an NPDES permit

issued under section 402 of the Clean

Water Act.

* * * * *

Dated: April 17, 2000.

Carol M. Browner,

Administrator, Environmental Protection

Agency.

[FR Doc. 00–9940 Filed 4–19–00; 8:45 am]

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