2013-07-29_GENERAL DOCUMENTS - C2009087

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Case 3:05 -cv -00784 Document 133 -2 Filed 07/14/06 Page 3 of 5 PagelD #: 4500 memo states, in part, that impoundments created by the discharge of fill material and permitted by the Corps under CWA section 404 for purposes of creating a waste treatment system. "would no longer be waters of the United States." The memo goes on to clarify that discharges into such waste treatment systems do not require a CWA permit, although discharges from these systems to waters of the U.S, would require a permit under CWA Section 402 from EPA or an approved State program. In May, 2004, EPA provided additional information clarifying the framework governing the regulation of mine tailings discharged in waters of the U.S. associated with hard rock mining in Alaska. (See May 17. 2004 memorandum from Diane Regas, James Hanlon. and Geoffrey Grubbs to Randy Smith regarding Clean.Water Act Regulation of Mine Tailings.) In that memo. EPA recognized that the agencies' revised definition of the term "fill material" (67 Fed. Reg. 31129. May 9, 2002) makes clear that mine tailings placed into i mpounded, waters, as proposed in the Kensington mine project in Alaska, are regulated as a discharge of fill material under CWA Section 404 because the tailings have the effect of raising the bottom elevation or converting waters'to dry land. Our conclusion in that memo is based on the agencies' analysis of how the May 9, 2002, rulemaking.applies to the regulation of discharges of mine tailings into waters impounded for the purpose of containing and isolating those materials. The memo proceeds to clarify that the rulemaking did not alter our interpretation of the waste treatment exclusion as defined in the agencies' regulations. While the agencies chose not to rely on the use of the wastq treatment system exclusion in the permitting context for the Kensington mine. nothing in the May 2004 memo was intended to preclude us from relying on use of the exclusion in other circumstances that meet the'agencies' definition. The waste treatment system exclusion continues to apply to the creation or use of a waste treatment system in waters below a valley fill permitted by the Corps under CWA Section 404.1 As provided in the agencies' regulations. a waste treatment system is "designed to meet the requirements of the CWA," (40 CFR 232.2 and 33 CFR 328.3(a).) The Corps. EPA and states ensure that the waste treatment systems meet those requirements through the section 404 permitting process for discharges of dredged or fill material, the section 402 permitting process for discharges from the sediment pond, and the section 401 certification process. A11 three programs ensure that the system is constructed and operated in compliance with the CWA. In older to minimize the physical extent of the waste treatment system and to reduce potential adverse environmental effects, to the maximum extent practicable the Corps requires under its Section 404 authorities that the sediment pond be located as close to the toe of the valley fill as possible2. However, it is generally not practicable to locate the sediment pond I 'The agencies' designation of a portion of the waters of the U.S. as part of a waste treatment system does not itself alter CWA jurisdiction over any waters remaining upstream of such system. The siting of sediment ponds below the valley till is dependent on a number of site specific engineering and environmental factors. Ponds are designed and located to ensure that they have sufficient volume and reduce the rate of flow to provide for effective settling of suspended sediments. The agencies require that ponds be located as close as is practicable to the toe of the till in order to minimize temporary adverse environmental impacts associated with the construction and operation of the waste treatment system,.