We reported about a year ago about how EPA Administrator Lisa Jackson was considering — just considering, mind you — re-examining the definition of “fill material” in her agency’s Clean Water Act regulations.
Now, it seems that Jackson — according to Greenwire, via the NY Times — has lost her enthusiasm for a swift rollback of Bush ‘Fill Rule’:
After vowing last year to revisit a controversial George W. Bush-era policy that made it easier for mining companies to dump debris into waterways, U.S. EPA may be having second thoughts.
The fate of the “fill rule” will largely hinge on the public’s reception of another upcoming Clean Water Act regulatory move, the Obama administration’s soon-to-be-released reinterpretation of Bush’s guidance for federal wetland regulators, according to a senior administration official.
“There is some waiting to see how this guidance goes before we start throwing out new rules or proposed rules on the Clean Water Act,” said the official, who was granted anonymity in exchange for speaking candidly on the behind-the-scenes deliberations.
Recall that Jackson had told Rolling Stone in January 2010:
… Jackson tells Rolling Stone, the EPA is reviewing the infamous Bush “fill rule” that allows mining companies to bury streams and lakes with mining rubble in the first place. “Staff is working on it now,” she says. “We haven’t put anything about it out publicly.” Jackson says the primary goal is to reform gold mining in Alaska — where miners have begun dumping toxic waste into a pristine lake near Juneau — but adds that the move may also “curtail” mountaintop-removal mining.
Some additional background:
Remember that Section 404 of the Clean Water Act allows the Corps of Engineers to issue permits to fill streams and wetlands. Under the law, the Corps can issue such permits for material that is dredged from the stream bottoms, or with “fill material.”
Environmental group lawyers argued that mining “spoil” — the rock and dirt that used to be the Appalachian mountains — is not “fill material,” and is instead “waste,” which is not allowed to be dumped in streams with a 404 permit. To summarize a lengthy court battle, the Clinton administration proposed to rewrite — and the Bush administration ultimately did rewrite – the Corps-EPA rules for Section 404 so that the definition of “fill material” now specifically includes:
… Overburden, slurry, or tailings or similar mining-related materials.
And some more background on the related decision mentioned by Greenwire:
Due for release any day, the Obama White House’s wetlands guidance aims to clarify a confusing 2006 Supreme Court ruling in a major Clean Water Act case, Rapanos v. United States, by revamping the Bush administration’s take on that decision … The guidance is anticipated to place more waterways and wetlands under federal protection than currently are under the more narrow Bush administration policy.
Stay tuned …