Ohio Valley Environmental Coalition


Clean Water Network's Consensus Position Regarding the Administration's Proposal to Change the Definition of "Fill Material" 

In analyzing the Corps/EPA position outlined in the proposed rule, a series of telephone calls have been held with various environmental groups in the Clean Water Network to develop a consensus position on the proposed rule change. That position is outlined below.

(1) We support the change from the "primary purpose" test to an "effects" test for determining whether something is "fill material"
(2) The existing blanket exclusion of "waste" from the definition of fill should be retained. Mining waste (both "overburden" and processed waste) are particular examples of waste that should be excluded from the definition of "fill material."
(3) In addition to the waste exclusion, it is acceptable to have a category of "unsuitable fill material." However, the current definition is too narrow and must be expanded to include other materials that are unsuitable to be used as fill even if they are not proposed to be placed in waters for waste disposal purposes. This category should include such materials as coal ash or construction and demolition debris that could be used to raise the bottom elevation of a water for construction purposes, but because of the nature of the material should never be allowed to be placed in waters for any reason. In addition, the descriptions of what constitutes "unsuitable fill material" should be in the rule itself, not the preamble. Finally, the decision as to what is and is not "unsuitable fill material" should not be left to the discretion of the District Engineers. Materials that are not waste and not contaminated, such as the liners, dirt, and gravel used to construct solid waste landfills and wood chips placed in waters to support heavy machinery or build temporary roads or clean fill used to raise the bottom elevation of a water for other construction-type purposes, should properly fall under the Corps' 404 permitting authority, and would be covered by the proposed rule.
(4) We disagree with the conclusion of EPA and the Corps that an Environmental Impact Statement (EIS) is not required for this rule change.





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