Fill Rule

Post image for The “Fill Rule” Controversy Explained

Elsewhere, I’ve described two fronts the Obama administration is waging against coal production in Appalachia (see here and here).

Since the President took office, environmentalists have been urging the administration to open a third front against Appalachian coal. This one pertains to the so-called “fill rule.” Here’s how the Sierra Club describes it: “In 2002, the Bush administration changed a key Clean Water Act rule to allow mining companies to dump their waste into waterways. Known as the “Fill Rule,” it allows mountaintop removal coal mine operators to bury Appalachian streams with their waste.”

As I demonstrate below, virtually the whole of the Sierra Club’s characterization of the “fill rule” is incorrect, starting with the fact that the rule originated with the Clinton administration, not the Bush administration. In fact, the “fill rule” is a relatively innocuous regulation that acts primarily to allow the EPA’s long held definition of “fill material” to trump that of the U.S. Army Corps of Engineers.

The “Fill Rule”: A Tortuous History

The Clean Water Act prohibits all pollution discharges into navigable waters, unless the “polluter” obtains a permit. Generally speaking, there are two such variances: (1) Section 402 permits, for “point source” discharges (like a pipe), which are issued by the EPA or by a state agency whose guidelines are EPA-approved and (2) 404 permits, for “dredge and fill” projects (such as filling a swamp to create a new housing development), which are issued by the U.S. Army Corps of Engineers in accordance with guidelines set by the EPA.

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