[Federal Register Volume 67, Number 90 (Thursday, May 9, 2002)]
[Rules and Regulations]
[Pages 31129-31143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11547]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 323

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 232

[FRL 7209-2]


Final 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: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental 
Protection Agency (EPA) are promulgating a final rule to reconcile our 
Clean Water Act (CWA) section 404 regulations defining the term ``fill 
material'' and to amend our definitions of ``discharge of fill 
material.'' Today's final rule completes the rulemaking process 
initiated by the April 20, 2000, proposal in which we jointly proposed 
to amend our respective regulations so that both agencies would have 
identical definitions of these key terms. The proposal was intended to 
clarify the Section 404 regulatory framework and

[[Page 31130]]

generally to be consistent with existing regulatory practice. Today's 
final rule satisfies those goals.
    Today's final rule defines ``fill material'' in both the Corps' and 
EPA's regulations as material placed in waters of the U.S. where the 
material has the effect of either replacing any portion of a water of 
the United States with dry land or changing the bottom elevation of any 
portion of a water. The examples of ``fill material'' identified in 
today's rule include rock, sand, soil, clay, plastics, construction 
debris, wood chips, overburden from mining or other excavation 
activities, and materials used to create any structure or 
infrastructure in waters of the U.S. This rule retains the effects-
based approach of the April 2000 proposal and reflects the approach in 
EPA's longstanding regulations. Today's final rule, however, includes 
an explicit exclusion from the definition of ``fill material'' for 
trash or garbage.
    Today's final rule also includes several clarifying changes to the 
term ``discharge of fill material.'' Specifically, the term 
``infrastructure'' has been added in several places following the term 
``structure'' to further define the situations where the placement of 
fill material is considered a ``discharge of fill material.'' In 
addition, the phrases ``placement of fill material for construction or 
maintenance of any liner, berm, or other infrastructure associated with 
solid waste landfills'' and ``placement of overburden, slurry, or 
tailings or similar mining-related materials'' have been added to the 
definition of ``discharge of fill material'' to provide further 
clarification of the types of activities regulated under section 404.
    As indicated in the proposal, as a general matter, this final rule 
will not modify existing regulatory practice. Today's final rule, which 
establishes uniform language for the Corps' and EPA's definitions of 
``fill material'' and ``discharge of fill material,'' will enhance the 
agencies' ability to protect aquatic resources by ensuring more 
consistent and effective implementation of CWA requirements.

EFFECTIVE DATE: June 10, 2002.

FOR FURTHER INFORMATION CONTACT: For information on today's rule, 
contact either Mr. Thaddeus J. Rugiel, U.S. Army Corps of Engineers, 
ATTN CECW- OR, 441 ``G'' Street, NW., Washington, DC 20314-1000, phone: 
(202) 761-4595, e-mail address: [email protected], 
or Ms. Brenda Mallory, U.S. Environmental Protection Agency, EPA West, 
Office of Wetlands, Oceans and Watersheds (4502T), 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460, phone: (202) 566-1368, e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. 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 rule. The CWA generally 
prohibits the discharge of pollutants into waters of the U.S. without a 
permit issued by EPA, or a State or Tribe 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 or Tribe under section 404 of the Act. 
Today's final rule 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. Today's final rule reconciles EPA's 
and the Corps' differing definitions of ``fill material'' and provides 
further clarification for the regulated public on what constitutes a 
``discharge of fill material.'' Examples of entities potentially 
regulated include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated entities
------------------------------------------------------------------------
State/Tribal governments or              State/Tribal agencies or
 instrumentalities.                       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           Federal government agencies or
 instrumentalities.                       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.
Industrial, commercial, or agricultural  Industrial, commercial, or
 entities.                                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 also could be regulated. To 
determine whether your organization or its activities are regulated by 
this action, you should carefully examine the applicability criteria in 
sections 230.2 of Title 40 and 323.2 of Title 33 of the Code of Federal 
Regulations, as well as the preamble discussion in Section II of 
today's final rule. If you have questions regarding the applicability 
of this action to a particular entity, consult the persons listed in 
the preceding section entitled FOR FURTHER INFORMATION CONTACT.

B. Summary of Regulatory History Leading to Final Rule and Related 
Litigation

    The CWA governs the ``discharge'' of ``pollutants'' into 
``navigable waters,'' which are defined as ``waters of the United 
States.'' Specifically, Section 301 of the CWA generally prohibits the 
discharge of pollutants into waters of the U.S., except in accordance 
with the requirements of one of the two permitting programs established 
under the CWA: Section 404, which regulates the discharge of dredged or 
fill material, or sction 402, which regulates all other pollutants 
under the National Pollutant Discharge Elimination System (NPDES) 
program. Section 404 is primarily administered by the Corps, or States/
Tribes that have assumed the program pursuant to section 404(g), with 
input and oversight by EPA. In contrast, Section 402 and the remainder 
of the CWA are administered by EPA or approved States or Tribes. The 
CWA defines the term ``pollutant'' to include

[[Page 31131]]

materials such as rock, sand, and cellar dirt that often serve as 
``fill material.'' The CWA, however, does not define the terms ``fill 
material'' and ``discharge of fill material,'' leaving it to the 
agencies to adopt definitions consistent with the statutory framework 
of the CWA.
    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'' adopted in 1977 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) (2001)(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 defined ``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 focused on the effect of the 
material (an effects-based test), rather than the purpose of the 
discharge in determining whether it would be regulated by section 404 
or section 402.

C. April 2000 Proposal

    These differing definitions of ``fill material'' have resulted in 
some confusion for some members of the regulated community which has 
not promoted effective implementation of the CWA. See 65 FR at 21294. 
As a result, in April 2000, the agencies proposed revisions to their 
respective definitions of ``fill material'' and ``discharge of fill 
material,'' adopting a single effects-based definition similar to that 
in EPA's regulations. The April 2000 proposed rule defined ``fill 
material'' as 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. The agencies believe that an 
effects-based definition is, as a general matter, the most effective 
approach for identifying discharges that are regulated as ``fill 
material'' under section 404. Thus, the proposal removed from the 
Corps'' definition the ``primary purpose'' test and the provision 
excluding pollutants discharged into water primarily to dispose of 
waste.
    The April 2000 proposal also would have excluded from the 
definition discharges subject to an EPA proposed or promulgated 
effluent limitation guideline or standard under CWA sections 301, 304, 
306, or discharges covered under a NPDES permit under CWA section 402. 
Finally, the April 2000 proposal solicited comments on the idea of the 
agencies creating an ``unsuitable fill'' category in the regulations 
that would identify materials that the Corps District Engineer could 
determine were not appropriate as fill material and, consequently, 
refuse to process an application seeking authorization to discharge 
such material.
    In the preamble for the April 2000 proposal, the agencies discussed 
the need to address the confusion created by the agencies' differing 
definitions. While in practice some Corps Districts and EPA Regions 
have developed consistent approaches for determining whether proposed 
activities would result in a discharge of fill material, national 
uniformity will ensure better environmental results. Moreover, two 
judicial decisions discussed in the April 2000 proposal, Resource 
Investments Incorporated v. U.S. Army Corps of Engineers, 151 F. 3d 
1162 (9th Cir. 1998) (``RII'') and Bragg v. Robertson, (Civil Action 
No. 2:98-636, S.D. W. Va.), vacated on other grounds, 248 F. 3d 275 
(4th Cir. 2001) (``Bragg''), indicate that the differing EPA and Corps 
definitions can result in judicial decisions that further confuse the 
regulatory context. See 65 FR at 21294-95. The clarification in the 
April 2000 proposal was intended to promote clearer understanding and 
application of our regulatory programs.
    With respect to the term ``discharge of fill material,'' the April 
2000 proposal also included several clarifying changes. Unlike the 
definition of ``fill material,'' EPA's and the Corps'' then-existing 
regulations defining the term ``discharge of fill material'' were 
substantively identical. The proposed changes to the term were intended 
to provide further clarification of the issue. Specifically, the 
proposal provided for adding two phrases to the definition: (1) 
``Placement of fill material for construction or maintenance of liners, 
berms, and other infrastructure associated with solid waste landfills; 
and (2) ``placement of coal mining overburden.''
    As summarized in more detail in the U.S. Army Corps of Engineers' 
and Environmental Protection Agency's Response to Comments on the April 
20, 2000, Proposed Rule Revising the Clean Water Act Regulatory 
Definitions of ``Fill Material'' and ``Discharge of Fill Material,'' 
dated May 3, 2002 (``Response to Comments''), we received a number of 
comments addressing these proposed changes. The comments and the above-
referenced document are part of the administrative record for this rule 
and are available from either agency. See the section entitled FOR 
FURTHER INFORMATION CONTACT.

II. Discussion of Final Rule

A. Overall Summary of Comments

    We received over 17,200 comments on the proposed rule, including 
several hundred late comments, most of which consisted of identical or 
substantially identical e-mails, letters, and postcards opposing the 
rule. (In April 2002, an additional several thousand letters and e-
mails were sent opposing the adoption of a rule similar to the 
proposal.) Approximately 500 of the original comments consisted of more 
individualized letters, with a mixture of those comments supporting and 
opposing the rule. The comments of environmental groups and the various 
form letters were strongly opposed to the proposal, in particular, the 
elimination of the waste exclusion and the discussion in the preamble 
regarding treatment of unsuitable fill material. Except for several 
landfill representatives, comments from the regulated community 
generally supported the proposal, in particular, the fact that the rule 
would create uniform definitions of ``fill material'' for the Corps'' 
and EPA's rules and maintain regulation of certain discharges under 
section 404 as opposed to section 402 of the CWA. A detailed discussion 
of the issues raised in the comments and the agencies' responses can be 
found in the Response to Comments document.
    The April 2000 proposal would have achieved four major outcomes and 
these were the focus of many of the comments. These outcomes were (1) 
Conforming the EPA and Corps definitions of ``fill material'' to one 
another; (2) adopting an effects-based

[[Page 31132]]

test, as opposed to the Corps' primary purpose test, for defining 
``fill material;'' (3) eliminating the waste exclusion from the Corps'' 
regulation; and (4) soliciting comments on whether to develop a 
definition for ``unsuitable fill material.'' A summary of comments 
relating to these four issues and our responses are discussed in 
section II.B of this preamble, which describes today's final rule.
    In addition, comments asserted the need for the agencies to prepare 
an environmental impact statement (EIS) in order to comply with the 
National Environmental Policy Act; and questioned the consistency of 
the April 2000 proposal with the CWA, existing judicial decisions, and 
agency guidance documents. These comments are addressed in this section 
of the preamble.
    With respect to the need for an EIS, many of the comments opposing 
the adoption of the rule argued that an EIS should have been prepared, 
particularly to address the impacts of eliminating the waste exclusion. 
Supporters of an EIS rejected the notion that the issues will be 
addressed in the individual permit situations. First, they pointed out 
that many of the mining activities have historically been permitted 
under the nationwide permit program where truncated environmental 
review occurs and no individual NEPA analysis is undertaken. Second, 
they argued that the cumulative impacts often are not appropriately 
addressed in this context. As described in section III. J of this final 
preamble and in the Response to Comments document, the agencies have 
concluded that preparation of an EIS is not required for this rule 
pursuant to NEPA. While supporters of an EIS suggest that finalizing 
this rule will result in significant new discharges that previously 
would not have occurred, that is not the case. Although the rule will 
clarify the appropriate regulatory framework, we do not expect there to 
be any significant change in the nature and scope of discharges that 
will occur.
    Finally, a number of comments asserted that the proposal should not 
be finalized because it violated the then-existing law (e.g., CWA, 
Bragg, and RII). Other comments argued that the proposal was consistent 
with the CWA and current regulatory practice. We do not agree that the 
proposal or today's final rule violate the CWA or any other law. 
Moreover, we believe that agencies have an obligation to take whatever 
steps may be necessary, including making revisions to their 
regulations, to ensure that their programs are appropriately 
implementing statutory mandates. As indicated, the Corps and EPA 
believe that the current inconsistency between their respective 
definitions of ``fill material'' is impeding the effective 
implementation of the section 404 program. Under those circumstances, 
we believe that a change in the regulatory language is justified and 
that by adopting the substance of EPA's longstanding definition, we are 
minimizing potential confusion and disruption to the program, while 
remaining consistent with the CWA. We agree with those comments that 
recognize the consistency of our action with the CWA and current 
practice. As described in more detail in the Response to Comments 
document and sections II. B and D of this preamble, today's final rule 
clarifies the governing regulatory framework in a manner consistent 
with the CWA and existing practice.

B. Discussion of the Final Rule

1. Definition of ``Fill Material''
    Today's final rule modifies both the EPA's and Corps' existing 
definitions of ``fill material'' and has retained the effects-based 
approach set forth in the proposal. The final rule defines ``fill 
material'' as material placed in waters of the U.S. where the material 
has the effect of either replacing any portion of a water of the United 
States with dry land or changing the bottom elevation of any portion of 
a water. The examples of ``fill material'' identified in today's rule 
include rock, sand, soil, clay, plastics, construction debris, wood 
chips, overburden from mining or other excavation activities, and 
materials used to create any structure or infrastructure in waters of 
the U.S. The proposed rule only specifically identified rock, earth and 
sand as examples, but the preamble made it clear that these were merely 
illustrative. In addition, in the preamble to the proposal, we 
indicated that wood chips, coal mining overburden, and similar 
materials would also constitute ``fill material'' if they had the 
effect of fill. As a result of questions raised in the comments about 
the scope of the term ``fill material,'' we have included additional 
examples in the final rule, several of which were discussed in the 
proposed preamble. We believe that these additional examples will 
further clarify the rule.
    Although today's final rule adopts a general effects-based approach 
for defining ``fill material,'' it specifically excludes trash or 
garbage. Today's final rule does not modify any other Section 404 
jurisdictional terms or alter any procedures governing the individual 
or general permit processes for Section 404 authorizations, 
requirements under Section 402, or the governing permit programs. 
Following is a summary of the actions that the agencies have taken in 
response to public comments.

a. Reconciling Agencies' Definitions

    The majority of the comments from both the environmental and 
industry perspectives addressing the issue of whether the agencies 
should have identical definitions expressed the general view that the 
agencies should have the same definitions for the key jurisdictional 
terms ``fill material'' and ``discharge of fill material.'' Many of the 
comments also noted that the differences between the Corps' and EPA's 
rules have historically caused confusion for the regulated community. 
Several asserted that despite differences in the regulatory language, 
some Corps Districts have been applying an effects-based test for some 
time. As described in the Response to Comments document, the agencies 
agree with those comments supporting the promulgation in both the 
Corps' and EPA's regulations of a uniform definition for the terms 
``fill material'' and ``discharge of fill material.'' Today's final 
rule achieves this result.

b. Effects-Based Test

    Most of the comments supported the proposed rule's use of an 
effects-based test similar to EPA's longstanding definition for 
defining ``fill material'' and the elimination of the ``primary 
purpose'' test from the Corps regulations. Those disagreeing with such 
an approach gave a variety of reasons including, the lack of any 
demonstrated justification that eliminating the primary purpose test 
from the Corps' regulation was necessary; the existence of similar 
purpose tests in other statutes involving waste materials as well as in 
the Section 404(b)(1) Guidelines as demonstrating that such tests need 
not be unwieldy; the existence of alternative ways of addressing the 
issues of concern without resorting to this rule change; and concerns 
about the inappropriate expansion of section 404 jurisdiction. As will 
be explained, the agencies are not persuaded by these arguments.
    First, we believe that the objective standard created by the 
effects-based test will yield more consistent results in determining 
what is ``fill material'' and will provide greater certainty in the 
implementation of the program. We believe that these benefits provide 
sufficient justification for today's rule change. In addition, although 
similar ``purpose'' tests may be used under other statutes and even 
under the section 404 program, this does not

[[Page 31133]]

negate the difficulties we have faced in applying the primary purpose 
test, as well as some confusion that has resulted from the use of the 
subjective primary purpose test in the section 404 jurisdictional 
context. An objective, effects-based standard also helps ensure that 
discharges with similar environmental effects will be treated in a 
similar manner under the regulatory program. The subjective, purpose-
based standard led in some cases to inconsistent treatment of similar 
discharges, a result which hampers effective implementation of the 
statute.
    Moreover, we believe there is an important distinction between the 
use of a purpose test here, where it determines the basic jurisdiction 
of the section 404 versus the section 402 program, and its use in the 
other contexts, such as in the evaluation of whether alternatives to a 
discharge of dredged material are ``practicable'' within the meaning of 
the section 404(b)(1) Guidelines. See 40 CFR 230.10(a)(2). The use of 
project purpose in the latter case is appropriate because it would make 
no sense to consider an alternative ``practicable'' if it did not 
satisfy the basic or overall purpose of the project proposed by the 
applicant. The definition of fill material, on the other hand, 
determines which legal requirements must be met for a discharge to be 
authorized under the statute. In that circumstance, we believe it is 
important to use an objective, effects-based test that ensures 
consistent treatment of like discharges, and prevents uncertainty for 
the regulated community as to what regulatory program applies to 
particular discharges. Moreover, we disagree that alternatives other 
than a rulemaking could have adequately addressed the agencies' 
concerns since the facial differences in our regulations could only be 
completely reconciled by revising the rules. In addition, the agencies 
previously had attempted to clarify their interpretation of the rules 
in a 1986 Memorandum of Agreement (MOA). Nevertheless, issues 
persisted.
    Finally, we disagree that the rule causes an inappropriate 
expansion of section 404 jurisdiction. The CWA does not limit section 
404 jurisdiction over fill material to materials meeting the primary 
purpose test. The ``primary purpose test'' is a regulatory definition 
and within the agencies province to modify as long as the modification 
is consistent with the CWA. In sum, as described in the Response to 
Comments document, the final rule, just as the proposal, adopts an 
effects-based approach to defining fill material. We believe the 
clarity and consistency created by the agencies relying on a more 
objective test for defining these key jurisdictional terms will result 
in more effective regulation under the CWA.

c. Elimination of Waste Exclusion

    Many comments opposed the proposal to eliminate the waste exclusion 
from the Corps' regulation. Some of these comments recommended that, in 
addition to the effects-based test, the agencies should include a 
general exclusion from the definition of ``fill material'' for any 
discharge of ``waste.'' These comments asserted that such an approach 
provides the advantages of EPA's effects-based approach while more 
effectively implementing the Corps' exclusion of waste material from 
regulation under section 404. Some of the comments argued that the 
proposed rule's deletion of the waste exclusion language from the 
Corps' regulations violates the CWA. According to these comments, while 
waste material can permissibly be covered by section 404 when it is 
placed in waters for a beneficial purpose, the CWA categorically 
prohibits authorizing such discharges under section 404 when their 
purpose is waste disposal. These comments pointed to the decisions in 
RII and Bragg to argue that all waste material is outside the scope of 
section 404.
    These comments do not object to, nor claim that the CWA prohibits, 
issuance of a section 404 permit for waste material discharged into 
waters of the U.S. under all circumstances. Where waste is discharged 
for a purpose other than waste disposal (e.g., to create fast land for 
development), these comments acknowledged that the Corps' issuance of a 
section 404 permit in accordance with the section 404(b)(1) Guidelines 
adequately protects the environment and is consistent with the CWA. On 
this point, we agree. However, where the identical material--with 
identical environmental effects--is discharged into waters for purposes 
of waste disposal, the comments contend that issuance of a section 404 
permit in accordance with the Guidelines would neither protect the 
environment nor be allowed by the CWA. Here, we disagree.
    Simply because a material is disposed of for purposes of waste 
disposal does not, in our view, justify excluding it categorically from 
the definition of fill. Some waste (e.g., mine overburden) consists of 
material such as soil, rock and earth, that is similar to 
``traditional'' fill material used for purposes of creating fast land 
for development. In addition, other kinds of waste having the effect of 
fill (e.g., certain other mining wastes) can, unlike trash or garbage, 
be indistinguishable either upon discharge or over time from structures 
created for purposes of creating fast land. Given the similarities of 
some discharges of waste to ``traditional'' fill, we believe that a 
categorical exclusion for waste would be over-broad. Instead, where a 
waste has the effect of fill, we believe that regulation under the 
section 404 program is appropriate.
    This does not mean, however, that today's rule opens up waters of 
the U.S. to be filled for any waste disposal purposes. As explained 
previously, today's rule is generally consistent with current agency 
practice and so it does not expand the types of discharges that will be 
covered under section 404. The section 404(b)(1) Guidelines provide for 
a demonstration that there are no less damaging alternatives to the 
discharge, and that all appropriate and practicable steps have been 
taken to avoid, minimize and compensate for any effects on the waters. 
We recognize that, some fill material may exhibit characteristics, such 
as chemical contamination, which may be of environmental concern in 
certain circumstances. This is true under either a primary purpose or 
effects based definition of fill material. The section 404 permitting 
process, however, is expressly designed to address the entire range of 
environmental concerns arising from discharges of dredged or fill 
material. See 40 CFR Part 230, subparts C-G (containing comprehensive 
provisions for addressing physical, chemical and biological impacts of 
discharges).
    The 404(b)(1) guidelines provide a comprehensive means of 
evaluating whether any discharge of fill material, regardless of its 
purpose, is environmentally acceptable and therefore may be discharged 
in accordance with the CWA. Where the practicable alternatives test has 
been satisfied and all practicable steps have been taken both to 
minimize effects on the aquatic environment and to compensate for the 
loss of aquatic functions and values, we believe the section 404 
permitting process is adequate to ensure protection of the aquatic 
ecosystem for any pollutant that fills waters. There is no 
environmental basis for contending that the sufficiency of the 
permitting process to protect waters of the U.S. depends on the purpose 
of the discharge.
    The position reflected in some of the comments appears to be based 
on the contention that Congress did not intend for waste disposal to be 
a permissible purpose of discharging pollutants into waters of the U.S. 
While we agree that

[[Page 31134]]

Congress wanted to prevent utilization of waters as unlicensed dumping 
grounds for waste material, the Act as a whole is focused primarily on 
discharges of waste material, as shown by the Act's definition of 
pollutant, which includes solid waste, sewage, garbage, discarded 
equipment, industrial, municipal and agricultural waste. See CWA 
section 502(6). While the elimination of all discharges is an important 
goal of the Act (see CWA section 101(a)(1)), the Act seeks to meet that 
goal not by banning discharges of waste outright, but by imposing 
carefully tailored restrictions on discharges of pollutants based on 
factors such as the impact of the discharge on the receiving water, 
availability of treatment technologies, cost, and the availability of 
alternatives to the discharge. See, e.g., CWA sections 301(b), 304(b) 
(requiring discharges to meet technology-based effluent limitations 
guidelines and standards); section 306(a)(1) (defining new source 
performance standard to include no discharge of pollutants ``where 
practicable''); section 301(b)(1)(C) (requiring dischargers to comply 
with any more stringent limitations necessary to meet water quality 
standards); sections 404(b)(1) and 403(c)(1)(F) (requiring that 
404(b)(1) Guidelines be based on section 403(c) criteria, which include 
consideration of ``other possible locations'' of disposal).
    Nor do we think that there is any indication that Congress intended 
to exclude discharges for purposes of waste disposal entirely from 
coverage under section 404. For example, section 404 applies to 
``dredged material'' (referred to as dredged ``spoil'' in the 
definition of pollutant in section 502(6)), which is typically 
discharged not for any beneficial purpose, but as a waste product from 
a dredging operation. Moreover, section 404(a) authorizes the Corps to 
issue permits for discharges of dredged or fill material at specified 
``disposal'' sites. Congress' use of the word ``disposal'' supports the 
reasonableness of our view that regulating waste material having the 
effect of fill under section 404 is consistent with the Act.
    We also disagree with the interpretation of some of the comments on 
the RII and Bragg decisions as mandating that the Corps retain the 
current exclusion of waste disposal in the definition of fill material. 
We note first that the decision of the district court in Bragg has been 
vacated by the Fourth Circuit on 11th amendment grounds. Bragg v. 
Robertson, 72 F. Supp. 2d 642 (S.D. W. Va. 1999), rev'd, 248 F. 3d 275 
(4th Cir. 2001). In any event, both Bragg and RII applied the Corps' 
then-existing definition of fill material to conclude that certain 
discharges were not covered by section 404. Nothing in those decisions 
suggests that the Act itself precluded the regulation of waste 
materials with the effect of fill under section 404. See section II. D. 
of this preamble for further discussion of the RII decision. While we 
agree that trash or garbage generally should be excluded from the 
definition of fill material (for the reasons explained in section 
II.B.1d of this preamble), we do not agree that an exclusion for all 
waste is appropriate and have not included such a provision in today's 
rule. These issues are discussed in section II.B.1d of the preamble and 
are addressed more fully in the Response to Comments document.

d. Trash or Garbage

    The agencies have added an exclusion for trash or garbage to the 
definition of ``fill material'' for several reasons. First, the 
preamble to the proposed rule and many of the comments recognized that 
trash or garbage, such as debris, junk cars, used tires, discarded 
kitchen appliances, and similar materials, are not appropriately used, 
as a general matter, for fill material in waters of the U.S. In 
particular, we agree that the discharge of trash or garbage often 
results in adverse environmental impacts to waters of the U.S. by 
creating physical obstructions that alter the natural hydrology of 
waters and may cause physical hazards as well as other environmental 
effects. We also agree that these impacts are generally avoidable 
because there are alternative clean and safe forms of fill material 
that can be used to accomplish project objectives and because there are 
widely available landfills and other approved facilities for disposal 
of trash or garbage.
    Accordingly, a party may not obtain a section 404 permit to dispose 
of trash or garbage in regulated waters. Because the discharge of any 
pollutant into jurisdictional waters is prohibited under CWA section 
301 except in accordance with a permit issued under sections 404 or 
402, section 402 would govern such discharges. For many of the reasons 
identified in this preamble, such as the physical obstruction and 
hazards that such materials would create in waters of the U.S., we 
would emphasize that trash or garbage are unlikely to be eligible to 
receive a permit under the section 402 regulatory program. We also note 
that where such materials are placed in waters of the U.S. without a 
permit, EPA or an approved State/Tribal agency with permitting 
authority, remains the lead enforcement agency. Today's 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. Where 
such structures release pollutants into waters of the U.S., a permit 
under section 402 of the CWA is required that will ensure protection of 
any downstream waters, including compliance with State water quality 
standards.
    While the agencies have generally excluded materials characterized 
as trash or garbage from the definition of ``fill material,'' we agree 
that there are very specific circumstances where certain types of 
material that might otherwise be considered trash or garbage may be 
appropriate for use in a particular project to create a structure or 
infrastructure in waters of the U.S. In such situations, this material 
would be regulated as fill material. Such material would have to be 
suitably cleaned up and not include constituents that would cause 
significant environmental degradation. An example would be where 
recycled porcelain fixtures are cleaned and placed in waters of the 
U.S. to create environmentally beneficial artificial reefs. Such 
material would not be considered trash or garbage and thus would not be 
subject to the exclusion. The agencies believe that this is 
appropriate, and even environmentally beneficial, in situations where 
(1) the otherwise excluded materials are being placed in waters of the 
U.S. in a manner consistent with traditional uses of fill material to 
create a structure or infrastructure, (2) the material's 
characteristics are suitable to the project purpose, and (3) the review 
under section 404 can effectively ensure that the material will not 
cause or contribute to significant environmental degradation.
    We also note that as stated in the preamble to the proposal, it is 
important to draw a clear distinction between solid waste discharged 
directly into waters of the U.S. and sanitary solid waste landfills. 
With respect to solid waste landfills, the liners, berms, and other 
infrastructure that are constructed of fill materials in waters of the 
U.S. are regulated under section 404 of the CWA. In the case of a 
landfill that has received a section 404 permit for the placement of 
berms, dikes, liners and similar activities needed to construct the 
facility, the subsequent disposal of solid waste into the landfill, 
while subject to regulation under the RCRA, would not be subject to 
regulation under the CWA because the constructed facility is not waters 
of the U.S. As with current

[[Page 31135]]

practice, discharges of leachate from landfills into waters of the U.S. 
would remain subject to CWA section 402. Today's final rule does not 
change this general regulatory framework for landfills. See section II 
D of this preamble for further discussion.

e. Unsuitable Fill Material

    With respect to developing a potential definition of ``unsuitable 
fill material,'' there was almost unanimous opposition to the 
unsuitable fill concept as discussed in the preamble. Some comments 
viewed it as an inadequate substitute for the elimination of the waste 
exclusion. Others argued that having an unsuitable fill provision would 
be a good idea but that it would need to be much broader and to 
specifically include mining-related wastes. These commenters also 
objected to leaving the question of whether something was ``unsuitable 
fill material'' to the discretion of the District Engineer. Some 
comments expressed concern that the definition of unsuitable fill 
material focused on materials that have a potential to leach or that 
have toxic constituents in toxic amounts. They argued that the 
definition could result in prohibiting activities that with appropriate 
permit terms and conditions potentially are allowable under section 
404. They also argued that such issues should be addressed in the 
context of the permitting process and should not result in the permit 
application being rejected. As described in the Response to Comments 
document, the agencies have not included an unsuitable fill category in 
the final rule but, as discussed, the final rule does narrow the scope 
of ``fill material'' by excluding trash or garbage.

f. Effluent Guideline Limitations and 402 Permits

    In addition to the changes already discussed in this preamble, 
today's final rule also deletes the exclusion contained in the proposal 
for discharges covered by effluent limitation guidelines or standards 
or NPDES permits. Several of the comments raised concerns that the 
exclusion included in the proposed definition for discharges covered by 
proposed or existing effluent limitation guidelines or standards or 
NPDES permits was vague and would result in uncertainty with respect to 
the regulation of certain discharges. Other comments stated that it was 
inappropriate for rule language to allow reliance on proposed effluent 
limitation guidelines or standards before they are promulgated as a 
final rule. In addition, including the 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.
    In light of the concerns and confusion associated with the proposed 
provision, we have decided to delete it from the rule. However, 
although we have removed the language in question from the rule itself, 
we emphasize that today's rule generally is intended to maintain our 
existing approach to regulating pollutants under either section 402 or 
404 of the CWA. Effluent limitation guidelines and new source 
performance standards (``effluent guidelines'') promulgated under 
section 304 and 306 of the CWA establish limitations and standards for 
specified wastestreams from industrial categories, and those 
limitations and standards are incorporated into permits issued under 
section 402 of the Act. EPA has never sought to regulate fill material 
under effluent guidelines. Rather, effluent guidelines restrict 
discharges of pollutants from identified wastestreams based upon the 
pollutant reduction capabilities of available treatment technologies. 
Recognizing that some discharges (such as suspended or settleable 
solids) can have the associated effect, over time, of raising the 
bottom elevation of a water due to settling of waterborne pollutants, 
we do not consider such pollutants to be ``fill material,'' and nothing 
in today's rule changes that view. Nor does today's rule change any 
determination we have made regarding discharges that are subject to an 
effluent limitation guideline and standards, which will continue to be 
regulated under section 402 of the CWA. Similarly, this rule does not 
alter the manner in which water quality standards currently apply under 
the section 402 or the section 404 programs.
2. Definition of ``Discharge of Fill Material''
    Most of the comments addressing ``discharge of fill material'' 
supported the inclusion of items related to solid waste landfills, 
although several asserted that the regulation of discharges associated 
with solid waste landfills was inconsistent with the court's decision 
in Resource Investments Inc. v. U.S. Army Corps of Engineers, 151 F.3d 
1162 (9th Cir. 1998). See detailed discussion in section II. D of this 
final preamble. With respect to the placement of coal mining 
overburden, two diametrically opposed views were reflected in the 
comments. Many of the comments argued that coal overburden was 
``waste'' material and that allowing such discharges was a violation of 
the CWA. In contrast, other comments argued that focusing on ``coal 
mining overburden'' was confusing, because it created the impression 
that the overburden or similar materials from other mining processes 
may not be regulated as ``discharges of fill material.''
    Today's final rule responds to the comments in the following ways. 
First, the agencies continue to agree with those comments that 
supported including the placement of material associated with 
construction and maintenance of solid waste landfills and related 
facilities in the discharge of fill material. For the reasons discussed 
in section II. D of this final preamble and in the Response to Comments 
document, we do not agree that we are precluded by the RII decision 
from issuing a rule that defines ``fill material'' or the ``discharge 
of fill material'' as encompassing discharges associated with the 
construction of solid waste landfill infrastructures. Second, the 
agencies have modified the ``placement of coal mining overburden'' to 
read ``placement of overburden, slurry, or tailings or similar mining-
related materials.'' The language in today's final rule will clarify 
that any mining-related material that has the effect of fill when 
discharged will be regulated as ``fill material.'' We made this 
clarification because it was clear from the comments that some were 
reading the examples we identified as an exclusive list. The general 
intent of this rule is to cover materials that have the effect of fill, 
not simply to focus on any one industrial activity. We believe that the 
additional mining related examples will address the confusion reflected 
in the comments. Finally, as discussed in section II.B.1.c of this 
preamble, we do not agree that the CWA contains a blanket prohibition 
precluding discharges of ``waste'' materials in to waters of the U.S. 
Instead, the Act establishes the framework for regulating discharges 
into waters and we believe the section 404 program is the most 
appropriate vehicle for regulating overburden and other mining-related 
materials. Several other minor changes, editorial in nature, have also 
been made in today's final rule.

C. Appropriate Reliance on the Environmental Reviews Conducted by Other 
Federal or State Programs

    As indicated, today's rule is designed to improve the effective 
implementation of the section 404 program by having the Corps and EPA 
adopt a single, uniform definition for these key jurisdictional terms. 
We also believe

[[Page 31136]]

that we can improve the effective implementation of the program by 
placing greater emphasis on coordination among the Federal agencies and 
with relevant State and Tribal programs. There are numerous examples of 
where the agencies can effectively work together and with other State, 
Tribal and Federal programs in the review of proposed projects that 
involve a section 404 discharge to jointly develop information that is 
relevant and reliable. Projects involving discharges to waters of the 
U.S. are often subject to review under other Federal and State permit 
programs, including the RCRA, the Surface Mining Control and 
Reclamation Act (SMCRA), the Coastal Zone Management Act (CZMA), CWA 
Section 402 NPDES, and others. Examples where closer coordination may 
be beneficial include the review of proposed solid waste landfills 
under the CWA and RCRA, proposed highway projects under the CWA and 
NEPA, proposed mining projects under the CWA and SMCRA, and proposed 
coastal restoration projects under the CWA and CZMA.
    As EPA and the Corps implement today's rule, we will be placing 
even greater emphasis on effective coordination with other relevant 
State, Tribal and Federal programs and, consistent with our legal 
responsibilities, on reliance, as appropriate, on the information 
developed and conclusions reached by other agencies to support the 
decisions required under these programs and ours. We are confident that 
this coordination will serve to make the implementation of today's rule 
and, more broadly, the CWA section 404 program, more effective, 
consistent and environmentally protective.
    Some comments expressed concern that an effects-based approach to 
the definition of ``fill material'' would result in a duplication of 
effort among Federal programs and an increased workload for the Corps. 
We believe that more effective coordination among the State, Tribal and 
Federal agencies and appropriate reliance on the analyses of other 
agencies will help significantly to address these concerns.
    First, it is important to note that EPA and Corps regulations 
encourage coordination and allow for appropriate reliance on relevant 
information and analyses developed under other programs to help satisfy 
section 404 program requirements. In the most effective circumstances, 
the Corps is able to coordinate with other relevant State, Tribal and 
Federal agencies before and during project review to identify the most 
efficient and effective role for each agency and ensure mutual reliance 
on information and analyses, particularly where that reliance is 
consistent with individual agency expertise and experience. For 
example, for many years, subject to advice from EPA, the Corps has 
relied on State determinations regarding water quality matters, as 
those State determinations are reflected in State CWA section 401 water 
quality certifications (see 33 CFR 320.4(d)). Such Corps reliance on 
State water quality determinations will continue for discharges 
associated with activities such as mining and solid waste landfills. In 
regulating discharges associated with mining, close coordination with 
the State, Tribal and Federal entities responsible for implementation 
of SMCRA, CWA section 401 and section 402 will enable the Corps to take 
advantage of the specialized expertise of the agencies as the Corps 
completes the section 404 review. Such coordination also helps to 
reduce the costs associated with project reviews, promotes consistent 
and predictable decision-making, and ultimately ensures the most 
effective protection for human health and the environment. EPA and the 
Corps anticipate that Corps District offices will rely on State/Federal 
site selection under SMCRA regarding the siting of coal mining related 
discharges to the extent allowed under current law and regulations. 
Similarly, the Corps will make full use of State RCRA information 
regarding the siting, design and construction of solid waste landfills, 
and will defer to those State decisions to the extent allowed by 
current law and regulation.
    Both agencies recognize, however, that the Corps is ultimately 
responsible under the CWA for making the required determinations that 
support each permit decision based on the Corps' independent evaluation 
of the record. The Corps itself determines the extent of deference to 
information generated from other programs including, for example, site 
selection under SMCRA and RCRA, that is appropriate on a case-by-case 
basis. Ultimately the Corps is relying on, rather than relinquishing 
to, these other sources of information as a record is developed and the 
Corps makes the determinations required by the Section 404 regulatory 
program. For example, the Corps will make full use of State site 
selection decisions under SMCRA (e.g., coal slurry impoundments) and 
RCRA (e.g., solid waste landfills), but the Corps will independently 
review those decisions and the State processes that generated them, to 
ensure that any Corps permit decision for a discharge site will fully 
comply with NEPA, the section 404(b)(1) Guidelines, and other relevant 
legal requirements. The Corps and EPA believe that effective 
coordination with other State and Federal agencies and the information 
they develop will help the Corps continue to make more timely, 
consistent and environmentally protective permit decisions.

D. The Final Rule and the Resource Investments Decision

    In Resource Investments Inc v. Corps, 151 F.3d 1162 (9th Cir. 
1998), the Ninth Circuit held that the Corps lacked the authority to 
regulate a solid waste landfill in waters of the U.S. The court found 
that: (1) Neither the solid waste itself nor the liner consisting of 
layers of gravel and low-permeability soil constituted ``fill 
material'' under Corps regulations; and (2) because of the potential 
for inconsistent results if landfills were regulated under both section 
404 of the CWA and Subtitle D of RCRA, requiring these facilities to be 
subject solely to RCRA would ``harmonize'' the statutes.
    We discussed this decision in the preamble to the proposed rule as 
an example of some of the confusion engendered by the ``primary 
purpose'' test. The court found in RII that the liner was not fill 
material because its primary purpose was not to replace an aquatic area 
with dry land or change the bottom elevation of a waterbody, ``but 
rather to serve as a leak detection and collection system.'' 151 F.3d 
at 1168. We explained in the proposal that fills typically serve some 
other purpose than just creating dry land or raising a water's bottom 
elevation and that, if the court's reasoning were taken to its logical 
conclusion, many traditional fills in waters of the U.S. would not be 
subject to section 404.
    Some commenters objected to our proposal not to follow the decision 
in RII in this rulemaking. They criticized the proposal as an improper 
attempt to ``override'' or ``overrule'' the Ninth Circuit's decision, 
particularly within the Ninth Circuit where the decision is binding. 
They also argued that the proposed rule failed to address the potential 
for duplication and inconsistency in decision-making by State and 
Federal agencies identified in RII.
    In our view, these comments raise two distinct issues. The first is 
whether we should follow the RII decision outside the Ninth Circuit and 
cease regulating discharges associated with the construction of solid 
waste landfills under section 404. The second issue is whether RII 
precludes us from

[[Page 31137]]

regulating discharges associated with construction of solid waste 
landfill structures within the Ninth Circuit, even after today's rule. 
We address each of these issues in turn.
    Regarding the first question, we note first that, after RII was 
decided, we chose not to acquiesce in the decision outside the Ninth 
Circuit. While we agreed that the solid waste disposal placed in a 
landfill is not fill material (and such waste continues to be excluded 
under today's rule), we believed that the court misapplied the primary 
purpose test in the Corps' regulations, and that the court's conclusion 
that RCRA supplanted CWA regulation was contrary to Congressional 
intent. See Resource Investments Inc. et al. v. Corps, No. 97-35934 
(Government's Petition for Rehearing and Suggestion for Rehearing En 
Banc, September 30, 1998). Thus, after the court decided RII, the Corps 
has continued to issue section 404 permits for the construction of 
solid waste landfill infrastructures outside the Ninth Circuit.
    After considering public comments, we continue to decline to follow 
RII outside the Ninth Circuit and have, therefore, maintained the 
approach in the proposed rule to the regulation of solid waste 
landfills. The revisions to the Corps' definition of fill material in 
today's rule address the basis for the court's holding that the 
landfill did not involve the discharge of fill material under section 
404. For the reasons explained elsewhere in today's notice, we believe 
that an effects-based test is the appropriate means of evaluating 
whether a pollutant is ``fill material'' and should be regulated under 
section 404 as opposed to section 402 of the CWA. The placement of 
berms, liners and other infrastructure (such as roads) associated with 
construction of a solid waste landfill in waters of the U.S. has the 
effect of replacing water with dry land or raising the bottom elevation 
of a water. Therefore, under today's rule, they constitute fill 
material. Such discharges are indistinguishable from similar discharges 
associated with other construction activity, which the Corps has always 
regulated as fill under section 404. See 40 CFR 232.2; 33 CFR 323.2 
(defining ``discharge of fill material,'' to include ``fill that is 
necessary for the construction of any structure in a water of the U.S.; 
the building of any structure or impoundment requiring rock, sand, dirt 
or other material for its construction; site-development fills for 
recreational, industrial, commercial, residential and other uses; 
causeways or road fills; * * *''). We have amended our definition of 
this term to include the ``placement of fill material for construction 
or maintenance of any liner, berm, or other infrastructure associated 
with solid waste landfills.'' That amendment does not change 
substantively the prior definition, but merely adds solid waste 
landfills as an example to make clear that it constitutes a ``discharge 
of fill material.'' Thus, under our new regulations, discharges 
associated with the creation of solid waste landfill structures clearly 
constitute ``fill material.''
    To the extent some commenters asserted that revising our regulation 
was an improper attempt to ``overrule'' or ``override'' this holding in 
RII, we disagree. The court's analysis of the ``fill material'' in RII 
was based entirely on the Corps regulations as they existed at that 
time, and not upon the interpretation of the CWA itself. Moreover, the 
CWA does not define ``fill material.'' Therefore, both the statute and 
the Ninth Circuit's decision leave us the discretion to adopt a 
reasonable definition consistent with the statutory scheme. We have 
explained elsewhere why we believe today's definition of fill is 
reasonable and appropriate under the CWA. To the extent today's rule 
has the practical effect of ``overriding'' this aspect of the court's 
decision in RII, that is neither remarkable nor inappropriate, since it 
is entirely proper for agencies to consider and, if appropriate, revise 
their regulations in light of judicial interpretation of them.
    For purposes of deciding whether to apply the RII decision outside 
the Ninth Circuit, we have also evaluated the second basis for the 
court's decision--that regulation solely under Subtitle D of RCRA 
instead of section 404 would ``harmonize'' the statutes and avoid 
necessary duplication. We decline to follow that holding both on legal 
and policy grounds. First, we believe, notwithstanding RII, that 
eliminating the CWA permitting requirement on the grounds that an 
activity is regulated under RCRA is contrary to Congressional intent in 
both statutes. Second, we do not agree with the court that regulation 
under Subtitle D and section 404 would constitute unnecessary 
duplication, in light of the distinct purposes served by these 
authorities, the differing Federal roles under the two statutes, and 
our clarification in today's rulemaking of our intent to give all 
appropriate deference to State RCRA decision-making in the section 404 
permitting process.
    We first do not agree with the court's legal reasons for concluding 
that regulation under Subtitle D of RCRA supplants CWA regulation. The 
CWA prohibits the discharge of any pollutant into waters of the U.S. 
without a permit under the Act. See CWA section 301(a). Even though an 
activity associated with a discharge may be regulated under other 
Federal or State authorities, we believe there is not any basis to 
conclude that such regulation by itself makes section 301(a) of the Act 
inapplicable to a discharge of a pollutant into waters of the U.S. In 
effect, the court concluded that enactment of a regulatory scheme under 
Subtitle D of RCRA impliedly repealed the statutory permit requirement 
under the CWA. But ``the intention of the legislature to repeal must be 
clear and manifest.'' Radzanower v. Touche Ross & Co., 426 U.S. 148, 
154 (1976), and the court must conclude that the two acts are in 
irreconcilable conflict or that the later act covers the whole subject 
of the earlier one and is clearly intended as a substitute. Id. The 
court in RII did not, and could not, make these findings.
    In fact, Congress itself made precisely the opposite findings when 
it enacted RCRA. Section 1006(a) states:

    Nothing in this chapter shall be construed to apply to (or to 
authorize any State, interstate, or local authority to regulate) any 
activity or substance which is subject to the [CWA] except to the 
extent such application (or regulation) is not inconsistent with the 
requirements of (the CWA).

This provision precludes regulation of solid waste landfills under 
Subtitle D in a manner inconsistent with the requirements of the CWA. 
In our view, it is plainly ``inconsistent'' with the requirements of 
the CWA to hold that regulation under RCRA eliminates CWA permitting 
requirement altogether.
    Instead, the court relied upon certain Corps regulations, 
statements by Corps officials and a 1986 interagency MOA. The court 
first stated that applying section 404 to solid waste landfills was 
``unreasonable'' because there would be ``potentially inconsistent 
results'' where both the State and the Corps were applying the same 
criteria in regulating solid waste landfills. 151 F.3d at 1169. The 
court held that this ``regulatory overlap is inconsistent with Corps 
regulations stating that ``the Corps believes that State and Federal 
regulatory programs should complement rather than duplicate one 
another.' '' 33 CFR 320.1(a)(5). In addition, the court cited 
statements by the Corps in a 1984 letter to EPA stating that EPA was in 
a better position than the Corps to regulate solid waste landfills. 
Finally, the court cited the 1986 MOA between the Corps and EPA.
    However, none of these ``authorities'' purport to modify the 
statutory

[[Page 31138]]

permitting requirements of the CWA, nor could they. The Corps' 
regulation cited by the court is simply a statement of the Corps' 
policy objective of working in concert with State regulatory programs, 
an important and continuing Corps objective that was discussed 
previously. The Corps' letter and the MOA reflected our efforts to 
manage our programs in light of our differing definitions of fill 
material, but did not speak to the CWA statutory permitting 
requirement. The court also misconstrued the 1986 MOA entered into by 
EPA and the Corps as indicating we intended to make the regulation of 
solid waste facilities within ``the sole purview of the EPA and 
affected states'' after EPA promulgated certain Subtitle D regulations. 
151 F.3d at 1169. In fact, we stated,

    EPA and Army agree that consideration given to the control of 
discharges of solid waste both in waters of the United States and 
upland should take into account the results of studies being 
implemented under the 1984 Hazardous and Solid Waste Amendments 
(HSWA) to the Resource Conservation and Recovery Act (RCRA), signed 
into law on November 8, 1984. . . .
    Unless extended by mutual agreement, the agreement will expire 
at such time as EPA has accomplished specified steps in its 
implementation of RCRA, at which time the results of the study of 
the adequacy of the existing Subtitle D criteria and proposed 
revisions to the Subtitle D criteria for solid waste disposal 
facilities, including those that may receive hazardous household 
wastes and small quantity generator waste, will be known. In 
addition, data resulting from actions under the interim agreement 
can be considered at that time.

    It should be noted that this MOA is about the regulation of solid 
waste disposal, not about the construction of infrastructure, including 
solid waste landfill infrastructure, that involves discharges of fill 
material to waters of the U.S. We did not address in the MOA how solid 
waste landfills would be regulated after EPA completed its study and 
certain RCRA regulations, but said only that these developments would 
``be taken into account'' as we decided how to address these discharges 
in the future. Thus, in addition to the inability of the agencies as a 
legal matter to modify the CWA statutory permitting requirement through 
an MOA, we expressly reserved any judgment about the appropriate 
regulatory approach to be taken after certain actions were taken under 
RCRA. The court appears to have assumed that the MOA expired after we 
completed the specified steps under RCRA, and that regulatory authority 
over solid waste landfills thereafter became the sole purview of RCRA. 
In fact, the MOA did not expire, and it has continued to provide the 
framework for regulation of solid waste landfills under section 404 of 
the CWA. See Memorandum of John F. Studt, U.S. Army Corps of Engineers, 
May 17, 1993 (stating ``the subject MOA remains effective in its 
entirety until further notice'' and noting that this position was 
coordinated with EPA).
    We conclude, therefore, that it would be contrary to the language 
and intent of both the CWA and RCRA to conclude that RCRA subtitle D 
supplants the CWA permitting requirement for discharges into waters of 
the U.S. associated with the construction of solid waste landfills. The 
different Federal roles in the permitting schemes in these statutes 
supports this conclusion. Subtitle D provides that each State will 
``adopt and implement a permit program or other system of prior 
approval and conditions'' to assure that each solid waste management 
facility within the State ``will comply'' with criteria established by 
EPA for the siting, design, construction, operation and closure of 
solid waste landfills. RCRA section 4005(c)(1)(B). States are required 
to submit permit programs for EPA to review and EPA is required to 
``determine whether each State has developed an adequate program'' to 
ensure compliance with EPA's Subtitle D regulations. RCRA section 
4005(c)(1)(B) and (C). However, RCRA does not grant to EPA authority to 
issue permits for solid waste landfills, review State permitting 
decisions or enforce Subtitle D requirements in States with approved 
programs. The court in RII appeared to misunderstand EPA's authorities 
under Subtitle D of RCRA when it stated that EPA would be the 
permitting authority in the absence of an approved State program. See 
151 F.3d 1169 (``we hold that when a proposed project affecting a 
wetlands area is a solid waste landfill, the EPA (or the approved State 
program) . . . will have the permit authority under RCRA.'') (Emphasis 
added); 151 F.3d at 1167 (``RCRA gives the EPA authority to issue 
permits for the disposal of solid waste, but allows states to 
substitute their own permit programs for the Federal program if the 
State program is approved by EPA.''). While this authority exists with 
regard to disposal of hazardous waste under Subtitle C of RCRA, EPA 
does not have this authority with regard to disposal of non-hazardous 
solid waste under Subtitle D.
    In contrast, the CWA requires either a Federal permit for 
discharges of pollutants into waters of the U.S., or issuance of a 
permit by a State/Tribe with an approved program, subject to EPA's 
authority to object to a permit where EPA finds it fails to meet the 
guidelines and requirements of the CWA. CWA sections 402(d); 404(j). 
EPA also has authority under the CWA to enforce conditions in Federal 
or State permits under the Act. CWA section 309.
    These contrasting statutory schemes support the conclusion that 
eliminating CWA authority over discharges of fill material associated 
with construction of solid waste landfills would mean a significant 
departure from the statutory structure created by Congress in the CWA, 
a scheme which Congress expressly sought to preserve when it adopted 
RCRA. See RCRA section 1006(a). This does not mean that we view the 
Federal role as one of second-guessing every decision made by State 
regulatory authorities under RCRA. To the contrary, both RCRA and the 
CWA reflect a strong presumption in favor of State-administered 
regulatory programs. As discussed elsewhere, we intend to rely on State 
decision-making under RCRA to the extent allowed under current law and 
regulations. However, we believe that eliminating a Federal role 
entirely on these matters is neither appropriate nor consistent with 
Congressional intent under RCRA or the CWA.
    Thus, we decline to follow the decision in RII outside the Ninth 
Circuit because we conclude there is not an adequate legal basis on 
which to conclude that discharges of pollutants associated with solid 
waste landfills no longer need to be authorized by a CWA permit solely 
because the project receives a permit under Subtitle D of RCRA.
    We nonetheless share the basic policy perspective expressed by the 
court in RII about the need to avoid unnecessary duplication and 
potential inconsistent application of regulatory programs under the CWA 
and RCRA. In fact, RCRA expressly vests EPA with the responsibility to 
``integrate all provisions of (RCRA) for purposes of administration and 
enforcement and (to) avoid duplication, to the maximum extent 
practicable, with the appropriate provisions of the * * * (CWA). * * * 
Such integration shall be effected only to the extent that it can be 
done in a manner consistent with the goals and policies of this chapter 
and the CWA. * * *'' RCRA section 1006(b). EPA has sought such 
integration first by promulgating location restrictions for landfills 
that are consistent with the criteria for issuance of section 404 
permits. See 40 CFR 258.12; 230.10. Among other requirements, a 
landfill may not be located in wetlands unless it is demonstrated to 
the State that there

[[Page 31139]]

are not less environmentally damaging practicable alternatives, the 
facility will not cause significant degradation of wetlands, and that 
appropriate and practicable steps have been taken to mitigate the loss 
of wetlands from the facility. However, EPA never purported to 
substitute Subtitle D regulation for the CWA permitting requirement, a 
result that would violate both section 1006(a) and (b). Instead, the 
Subtitle D RCRA regulations make clear that owners or operators of 
municipal solid waste landfills ``must comply with any other applicable 
Federal rules, laws, regulations, or other requirements.'' 40 CFR 
258.3. At the time EPA promulgated this regulation, the agency 
expressly noted that such requirements include those arising under the 
CWA. See 56 FR 51042 (October 9, 1991).
    We do not believe, however, that the Subtitle D and section 404 
programs are redundant. Rather, each program has a distinct focus. The 
State RCRA permitting process addresses a much broader range of issues, 
including technical operating and design criteria, ground water 
monitoring, corrective action, closure and post-closure care and 
financial assurances. In contrast, the section 404 process is focused 
exclusively on the impacts of discharges of dredged or fill material on 
the aquatic ecosystem, and ways of ensuring that those impacts are 
avoided, minimized and compensated. Because of the Corps' expertise in 
protecting aquatic ecosystems, we have found that State RCRA permitting 
agencies often incorporate by reference the requirements of section 404 
permits. (For example, the State RCRA permit for the RII landfill 
required the applicant to implement the wetlands and mitigation plan to 
be approved by the Corps through the 404 permit process.) We believe 
that, in these and other ways, State and Federal permitting authorities 
can create efficiencies by relying on each other's expertise in making 
regulatory decisions.
    We intend to make additional efforts to avoid unnecessary 
duplication in the Federal and State permitting process. As explained 
in section II. C of this final preamble, we intend that the Corps will 
rely on decisions by the State RCRA authority about the siting, design 
and construction of solid waste landfills in waters of the U.S. to the 
extent allowed by law and regulations. Appropriate deference to State 
decision-making will help avoid duplication, while still ensuring that 
the Corps fulfills its responsibilities to authorize discharges of fill 
material associated with solid waste landfills in accordance with CWA 
requirements.
    This does not mean that, in every single case, State and Federal 
decision-makers will agree on whether a particular project or 
configuration is environmentally acceptable. Nevertheless, instances of 
disagreement have been rare. We intend to further enhance our efforts 
to ensure effective coordination between State and Federal officials. 
However, we do not agree with the court in RII that the only way to 
avoid unnecessary duplication is to eliminate the CWA permitting 
requirement altogether.
    We next address commenters' assertions that the decision in RII 
continues to preclude us from regulating solid waste landfills under 
section 404 within the Ninth Circuit. These comments also argue that, 
given the ``statutory'' basis for the court's decision, we cannot 
change the result in the Ninth Circuit through this rulemaking.
    As noted in this preamble, the court construed administrative 
materials of the Corps and EPA as supporting the conclusion that the 
agencies did not intend to regulate solid waste landfills under section 
404 of the CWA. In light of this agency intent, the court concluded 
that subjecting landfills to regulation solely under RCRA would 
``harmonize'' the statutes and ``give effect to each [statute] while 
preserving their sense and purpose.'' 151 F.3d at 1169. The court found 
that this harmonization ``is consistent with the sense of the CWA that 
discharges of solid waste materials are beyond the scope of section 404 
. . . and avoids unnecessary duplication of Federal and State efforts 
in the area of wetlands protection.'' Id.
    We again emphasize the distinction between ``discharges of solid 
waste material,'' as referenced by the court and discharges of fill 
material associated with the construction of infrastructure. In this 
rulemaking, we have clarified that discharges having the effect of 
raising the bottom elevation of a water or replacing water with dry 
land, including fill used to create landfills such as liners, berms and 
other infrastructure associated with solid waste landfills are 
discharges of fill material subject to the section 404 program. 
Therefore, we have altered the landscape as understood by the court in 
RII (i.e., that these facilities were entirely outside the intended 
purview of section 404). We do not agree with commenters who argued 
that there was a ``statutory'' basis to the court's decision in the 
sense that the holding of the decision turned on an interpretation of 
Congressional intent in the CWA or RCRA. The court did not cite any 
provision of the CWA or RCRA to support its conclusions. Rather, the 
court derived the ``sense and purpose'' of the CWA based on agency 
regulations, guidance and correspondence. By clarifying the scope of 
section 404 authorities in this rulemaking, we have altered the ``sense 
and purpose'' of the CWA underlying the court's conclusion that 
regulation solely under RCRA would ``harmonize'' the statutes. Because 
the premises before the court have changed, we do not view the court's 
decision as continuing to bar the regulation under section 404 of 
discharges associated with solid waste landfills within the Ninth 
Circuit. At a minimum, today's rule calls into question the continuing 
vitality of the court's reasoning and conclusions and, should a case be 
brought within the Ninth Circuit challenging our authority to regulate 
solid waste landfills, we would ask the court to address the question 
anew in light of the clarification of our authorities in today's rule.

III. Administrative Requirements

A. Plain Language

    In compliance with the principle in Executive Order 12866 regarding 
plain language, this preamble is written using plain language. Thus, 
the use of ``we'' in this notice refers to EPA and the Corps, and the 
use of ``you'' refers to the reader. We have also used active voice, 
short sentences, and common every day terms except for necessary 
technical terms.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
under the provisions of the Paperwork Production Act, 44 U.S.C. 3501 et 
seq. This rule merely reconciles EPA and Corps CWA section 404 
regulations defining the term ``fill material'' and amends our 
definitions of ``discharge of fill material.'' Thus, this action is not 
subject to the Paperwork Reduction Act.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of

[[Page 31140]]

information; search data sources; complete and review the collection of 
information; and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are displayed in 40 CFR part 9 and 48 CFR chapter 15. For 
the CWA section regulatory 404 program, the current OMB approval number 
for information requirements is maintained by the Corps of Engineers 
(OMB approval number 0710-0003, expires December 31, 2004).

C. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA and 
the Corps 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'' in 
light of the provisions of paragraph (4) above. 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.

D. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA and the Corps 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.''
    This final 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 under 
either section 402 or 404 of the CWA. Today's rule conforms our two 
regulatory definitions of ``fill material'' and thereby clarifies 
whether a particular discharge is subject to regulation under section 
402 or Section 404. It is generally consistent with current agency 
practice and does not impose new substantive requirements. Within 
California, Oregon, Washington, Idaho, Wyoming, Nevada, Arizona, 
Hawaii, Guam, and the Northern Mariana Islands, after today's rule, the 
Corps will again be issuing Section 404 permits for the construction of 
solid waste landfills in waters of the U.S., which the Corps had ceased 
doing after the decision in RII (the decision did not affect the 
permitting requirement outside these states). See section II. D. of 
this preamble. However, resuming the issuance of section 404 permits 
for construction of solid waste landfills in waters of the U.S. in 
these areas does not have Federalism implications. None of the States 
within the Ninth Circuit will incur administrative costs as a result of 
today's rule, because none currently administer the section 404 program 
and, in any event, the administrative costs of permitting solid waste 
landfills are minimal in the context of the overall section 404 
permitting program. In addition, this change does not impose any 
additional substantive obligations on State or local governments 
seeking to construct solid waste landfills in waters of the U.S. since 
Subtitle D of RCRA currently requires such facilities to meet 
comparable conditions for receiving a section 404 permit. See section 
II. D of this preamble. Finally, we do not believe that requiring any 
State or local governments seeking to construct solid waste landfills 
in waters of the U.S. to undergo the Section 404 permitting process 
itself will 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. Thus, Executive Order 13132 does not apply to this rule.

E. 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.
    For purposes of assessing the impacts of today's rule on small 
entities, a small entity is defined as : (1) A small business based on 
SBA size standards; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district, or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, we certify that this action will not have a significant 
economic impact on a substantial number of small entities. Currently, 
under the CWA, any discharge of pollutants into waters of the U.S. 
requires a permit under either section 402 or 404 of the CWA. Today's 
rule conforms our two regulatory definitions of ``fill material'' and 
thereby clarifies whether a particular discharge is subject to 
regulation under section 402 or section 404. Today's rule is generally 
consistent with current agency practice, does not impose new 
substantive requirements and therefore would not have a significant 
economic impact on a substantial number of small entities.

F. 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, the 
agencies 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,

[[Page 31141]]

and Tribal governments, in the aggregate, or to the private sector, of 
$100 million or more in any one year. Before promulgating an EPA or 
Corps rule for which a written statement is needed, section 205 of the 
UMRA generally requires the agencies 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 and the Corps to adopt an alternative other than 
the least costly, most cost-effective or least burdensome alternative 
if the Administrator and Secretary of the Army publish with the final 
rule an explanation why that alternative was not adopted. Before EPA or 
the Corps establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including Tribal 
governments, they 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 or Corps 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. Currently, under the CWA, any discharge of 
pollutants into waters of the U.S. requires a permit under either 
section 402 or 404 of the CWA. Today's rule conforms our two regulatory 
definitions of ``fill material'' and thereby clarifies whether a 
particular discharge is subject to regulation under section 402 or 
section 404. Today's rule is generally consistent with current agency 
practice, does not impose new substantive requirements and therefore 
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. 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.

G. National Technology Transfer and Advancement Act

    As noted in the proposed rule, 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) that are developed or adopted by 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.
    This rule does not involve technical standards. Therefore, we did 
not consider the use of any voluntary consensus standards.

H. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental 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 considered by us.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866. In 
addition, it does not concern an environmental or safety risk that we 
have reason to believe may have a disproportionate effect on children.

I. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires the agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' ``Policies that 
have tribal implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.''
    Today's rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and the Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Currently, under the CWA, any discharge of pollutants into waters of 
the U.S. requires a permit under either section 402 or 404 of the CWA. 
Today's rule conforms our two regulatory definitions of ``fill 
material'' and thereby clarifies whether a particular discharge is 
subject to regulation under section 402 or section 404. It is generally 
consistent with current agency practice and does not impose new 
substantive requirements. Within California, Oregon, Washington, Idaho, 
Wyoming, Nevada, Arizona, Hawaii, Guam, and the Northern Mariana 
Islands, after today's rule, the Corps will again be issuing Section 
404 permits for the construction of solid waste landfills in waters of 
the U.S., which the Corps had ceased doing after the decision in RII 
(the decision did not affect the permitting requirement outside these 
states). See section II. D. of this preamble. However, resuming the 
issuance of section 404 permits for construction of solid waste 
landfills in waters of the U.S. in these areas does not have tribal 
implications. No tribes within the Ninth Circuit will incur 
administrative costs as a result of today's rule, because none 
currently administer the section 404 program and, in any event, the 
administrative costs of permitting solid waste landfills are minimal in 
the context of the overall section 404 permitting program. In addition, 
this change does not impose any additional substantive obligations on 
any Tribe seeking to construct solid waste landfills in waters of the 
U.S. since Subtitle D of RCRA currently requires such facilities to 
meet comparable conditions for receiving a section 404 permit. See 
section II.D. of this preamble. Finally, we do not believe that 
requiring any tribal government seeking to construct solid waste 
landfills in waters of the U.S. to undergo the Section 404 permitting 
process itself will have substantial direct effects on one or more 
Indian

[[Page 31142]]

tribes, on the relationship between the Federal government and the 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes. Thus, Executive Order 
13175 does not apply to this rule.

J. Environmental Documentation

    As required by the NEPA, the Corps prepares appropriate 
environmental documentation for its activities affecting the quality of 
the human environment. The Corps has prepared an environmental 
assessment (EA) of the final rule. The Corps' EA ultimately concludes 
that, since the adoption of this rule will not significantly affect the 
quality of the human environment, the preparation and coordination of 
an EIS is not required. The EA, included in the administrative record 
for today's rule, explains the rationale for the Corps' conclusion.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective June 10, 2002.

L. Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    Today's rule is not expected to negatively impact any community, 
and therefore is not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities. Today's rule 
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 generally consistent with existing agency practice.

M. Executive Order 13211

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Today's rule 
conforms our two regulatory definitions of ``fill material'' and 
thereby clarifies whether a particular discharge is subject to 
regulation under section 402 or section 404. Today's rule is generally 
consistent with current agency practice, does not impose new 
substantive requirements and therefore will not have a significant 
adverse effect on the supply, distribution, or use of energy.

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 
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 Sec. 323.2 as follows:
    a. Paragraph (e) is revised.
    b. In paragraph (f), in the second sentence: add the words ``or 
infrastructure'' after the words ``for the construction of any 
structure''; add the word ``, infrastructure,'' after the words 
``building of any structure''; remove the words ``residential, and'' 
and add in their place the words ``residential, or''; and add the words 
``placement of fill material for construction or maintenance of any 
liner, berm, or other infrastructure associated with solid waste 
landfills; placement of overburden, slurry, or tailings or similar 
mining-related materials;'' after the words ``utility lines;''.
    The revision reads as follows:


Sec. 323.2  Definitions.

* * * * *
    (e)(1) Except as specified in paragraph (e)(3) of this section, the 
term fill material means material placed in waters of the United States 
where the material 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) Examples of such fill material include, but are not limited to: 
rock, sand, soil, clay, plastics, construction debris, wood chips, 
overburden from mining or other excavation activities, and materials 
used to create any structure or infrastructure in the waters of the 
United States.
    (3) The term fill material does not include trash or garbage.
* * * * *

    Dated: May 3, 2002.
Dominic Izzo,
Principal Deputy 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 
amended as set forth below:

PART 232--[AMENDED]

    1. The authority citation for part 232 continues to read as 
follows:

    Authority: 33 U.S.C. 1344.


    2. Amend Sec. 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 ``or infrastructure'' after the words 
``for the construction of any structure''; add the word ``, 
infrastructure,'' after the words ``building of any structure''; remove 
the words ``residential, and'' and add in their place the words 
``residential, or''; and add the words ``placement of fill material for 
construction or maintenance of any liner, berm, or other infrastructure 
associated with solid waste landfills; placement of overburden, slurry, 
or tailings or similar mining-related materials;'' after the words 
``utility lines;''.
    The revision reads as follows:

[[Page 31143]]

Sec. 232.2  Definitions.

* * * * *
    Fill material. (1) Except as specified in paragraph (3) of this 
definition, the term fill material means material placed in waters of 
the United States where the material 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) Examples of such fill material include, but are not limited to: 
rock, sand, soil, clay, plastics, construction debris, wood chips, 
overburden from mining or other excavation activities, and materials 
used to create any structure or infrastructure in the waters of the 
United States.
    (3) The term fill material does not include trash or garbage.
* * * * *

    Dated: May 3, 2002.
Christine Todd Whitman,
Administrator, Environmental Protection Agency.
[FR Doc. 02-11547 Filed 5-8-02; 8:45 am]
BILLING CODE 3710-92-P