ELR Citation: ELR 20588
No(s). 2:01-0770 (S.D. W. Va. May 8, 2002)

The court holds that Clean Water Act (CWA) §404 does not allow the filling of U.S. waters solely for waste disposal, and, therefore, enjoined the U.S. Army Corps of Engineers from issuing any further permits allowing the valley fill of overburden waste from mountaintop removal. The court first holds that although the Corps, with the U.S. Environmental Protection Agency's (EPA's) approval, has permitted surface coal mining operations to dispose of overburden waste from mountaintop removal coal mining by filling streams for two decades, it has been acting beyond its authority and in violation of the CWA. The Corps' regulations governing the §404 dredge and fill program comport with the statutory, regulatory, and legislative history of the CWA, stating that fill is material discharged into water for construction, development, or property protection, activities defined by their ultimate use and purpose. Similarly, long-standing EPA definitions of "fill material" and "discharge," while not identical to the Corps' definitions, point to the same use and purpose requirement. However, the EPA definition of "fill material" that allows that fill discharges might be for any purpose introduces an ambiguity present nowhere else in the statutory or regulatory scheme. The Corps and EPA argued that §404 permits have been issued for valley fills designed for waste disposal for decades under the EPA definition of "fill," and that the court should defer to the Agency's long-standing regulatory practice. The court holds that EPA's definition is ambiguous because it might be understood to apply to the use or purpose of the discharge, not of the fill, and, thus is inconsistent with the statute. It also conflicts with EPA's own definition of "discharge of fill material," which involves constructive, purposeful, and useful fills, not fills constructed solely for waste disposal. Accordingly, the reading of the ambiguous EPA definition of fill material that would allow discharges for any purpose is necessarily incorrect. An illegal agency practice has no precedential value and is due no deference. Thus, the fact that the Corps approved §404 permits solely for massive waste disposal in the past two decades, with EPA's approval, is not a mitigating factor, much less an argument that the court should approve the practice. Additionally, the court holds that the agencies' revised definitions of "fill material," promulgated in an effort to legalize the ambiguous EPA definition, are fundamentally inconsistent with the CWA, its history, predecessor statutes, long-standing regulations, and companion statutes. Under the guise of regulatory harmony, the agencies took an ambiguous interpretation, seized the unsupportable horn of the ambiguity, and proposed to make their original error law.

A prior decision in this litigation is published at 32 ELR 20364.]

Counsel for Plaintiff
James M. Hecker
Trial Lawyers for Public Justice
1717 Massachusetts Ave. NW, Ste. 800, Washington DC 20036
(202) 797-8600

Counsel for Defendants
Ruth Ann Storey
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Haden, J.