Shifting the Boundary Between the Sections 402 and 404 Permitting Programs by Expanding the Definition of Fill Material

Abstract

The section 404 permitting program has endured a history of divergent interpretations from both the agencies that operate the program and the courts. In 2002, these agencies, the Army Corps of Engineers and EPA, redefined fill material to include many activities under the section 404 program that did not appear to be included under the previous definition. One of these activities is the disposal of excess dirt and bedrock in the Nation’s waters from strip mining operations. Efforts to thwart this disposal activity have been met with increasing resistance by the courts, while efforts to minimize the adverse environmental effects of this type of disposal have forced the Army Corps to propose developing a coordinated permit process with other involved agencies. This Note argues that the new definition of fill material expands the scope of the section 404 program to include activities that at one time were or could have become subject to regulation under EPA’s more rigorous section 402 program.