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National Mining Association et al. v. U.S. Army Corps of Engineers , 145 F.3d 1399 (D.C. Cir. 1998).
 

F. Allen Barnes, J.D.

Robert A. Tufts, J.D.
 

In 1993, the U.S. Army Corps of Engineers (Corps) promulgated a regulation ruling that incidental fallback that accompanies dredging is subject to the Clean Water Act's (CWA) permitting provision for "discharge" of dredged or fill material. The American Mining Congress and other trade associations challenged the 1993 regulation which was known as the Tulloch Rule.1 The federal district court hearing the case held that the rule exceeded the Corps' scope of authority and therefore was invalid. The Corps appealed the decision and in 1998, the U.S. Court of Appeals for the District of Columbia affirmed the decision holding that the Tulloch Rule exceeded the Corps' authority to regulate any "addition" of a pollutant to navigable waters under the CWA and enjoined the Corps and EPA from applying the rule.2
 

Background

Section 404 of the CWA authorizes the Corps to issue permits, after notice and public hearing, "for the discharge of dredged or fill material into the navigable waters at specified disposal sites."3 For the purposes of the CWA, "navigable waters" has been construed to include wetlands.4

In 1977 the Corps promulgated regulations tracking the language of the CWA and defining "discharge" as "any addition of dredged material into the waters of the United States."5 A 1986 regulation exempted from the permit requirement any "de minimis, incidental soil movement occurring during normal dredging operations."6 Although this regulation did not define "normal dredging operations," it did give some guidance as to the exemption's coverage: Section 404 clearly directs the Corps to regulate the discharge of dredged material, not the dredging itself. "Dredging operations cannot be performed without some fallback. However, if we were to define this fallback as a 'discharge of dredged material,' we would, in effect, be adding the regulation of dredging to section 404 which we do not believe was the intent of Congress."7
 

The Tulloch Rule

The Tulloch case involved a development project site in North Carolina. In 1987, Corps personnel determined that about 700 acres of the site were wetlands. However, the developer consulted with the Corps at various stages during the development to ensure the project could be implemented without the need for a Section 404 permit.

The developer drained the area to lower the water table and eliminate wetland hydrology and wetland vegetation. A consultant had determined that, by constructing some ponds and a network of ditches 4 feet deep every 200 feet, the area could be drained. The developer obviated the need for a permit by not discharging dredged material. The soil was removed with sealed buckets on draglines and backhoes. The excavated material was placed in sealed containers on the back of trucks and dumped on upland sites. As a result of these alterations, the water table dropped and the Corps no longer considered the area a wetland. Because the developer's actions involved only minimal incidental releases the Corps determined Section 404's permitting process did not apply.
 

The North Carolina Wildlife Federation filed a lawsuit against Tulloch to enforce Section 404 requirements.8 As part of the settlement of this case the Corps and the Environmental Protection Agency (EPA) agreed to propose new rules governing the permit requirements for landclearing and excavation, resulting in what has come to be known as the Tulloch Rule.

Specifically, this rule redefined "discharge of dredged material" to include "any addition, including any redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation."9 Additionally, EPA promulgated a parallel rule redefining "discharge."10
 

The Tulloch Rule covered all discharges, subject to the limited exception for de minimis discharges that the Corps was convinced (i.e. burden is on the landowner) would not have the effect of "destroying or degrading an area of waters of the United States,"11 whereas the 1986 rule exempted de minimis soil movement. In promulgating this rule the Corps "emphasized that the threshold of adverse effects for the de minimis exception is a very low one."12 Additionally, in the preamble to the Tulloch Rule the Corps stated "it is virtually impossible to conduct mechanized landclearing, ditching, channelization or excavation in waters of the United States without causing incidental redeposition of dredged material (however small or temporary) in the process."13 The Tulloch Rule altered the preexisting regulatory framework by removing the de minimis exception and by adding coverage of incidental fallback.
 

National Mining et al.

The National Mining Congress claimed that the Corps had exceeded the scope of the Corps' regulatory authority under the CWA. The trade organizations argued "that fallback, which returns dredged material virtually to the spot from which it came, cannot be said to constitute an addition of anything."14 The agencies countered with the argument that "wetland soil, sediment, debris or other material in the waters of the United States undergoes a legal metamorphosis during the dredging process, becoming a 'pollutant' for purposes of the Act. If a portion of the material being dredged then falls back into the water, there has been an addition of a pollutant."15

The National Wildlife Federation, who intervened as defendants, argued this reasoning demonstrated that regulation of redeposit was actually required by the Act. Additionally, the National Wildlife Federation complained that the Court's understanding of "addition" removes the regulation of dredged material from the statute.16 Since dredged material comes from waters of the United States, any release or discharge of such material back into the waters could technically be described as a "redeposit." The Fifth Circuit addressed this problem in 1983 when it stated, "dredged material is by definition material that comes from the water itself. A requirement that all pollutants must come from outside sources would effectively remove the dredge-and-fill provision from the statute."17 Although the fifth circuit court held that "addition" may include "redeposit" it did not consider incidental fallback at all.

The Federal Appellate Court ruled the Tulloch Rule exceeded the Corps' authority under the Clean Water Act to regulate any "addition" of pollutant to navigable waters. The Court stated:

the straightforward statutory term "addition" cannot reasonably be said to encompass the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back. Because incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge.18
 

Additionally, stating the Tulloch Rule's "overriding purpose appears to be to expand the Corps' permitting authority to encompass incidental fallback and, as a result, a wide range of activities that cannot remotely be said to "add" anything to the waters of the United States," the Court held that by asserting jurisdiction over "any redeposit," including incidental fallback the Tulloch Rule "outruns the Corps' statutory authority."19

Conclusion

In reaching its decision, the Court of Appeals specifically noted the narrowness of its holding. "We do not hold that the Corps may not legally regulate some forms of redeposit under its [Section] 404 permitting authority. We hold only that by asserting jurisdiction over 'any redeposit,' including incidental fallback, the Tulloch Rule outruns the Corps' statutory authority. Since the Act sets out no bright line between incidental fallback on the one hand and regulable redeposits on the other, a reasoned attempt by the agencies to draw such a line would merit considerable deference."20
 

F. Allen Barnes is an attorney and assistant professor, Department of Forestry, Mississippi State University, and Robert A. Tufts is an attorney and associate professor, School of Forestry, Auburn University.
 

ENDNOTES:

1. American Mining Congress v. U.S. Army Corps, 951 F. Supp. 267 (D.D.C. 1997).

2. National Mining Association v. U.S. Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998).

3. 33 U.S.C. § 1344 (1999).

4. United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).

5. 42 Fed. Reg. 37,145 (1977).

6. 51 Fed. Reg. 41,232 (1986).

7. Id. at 41,210.

8. North Carolina Wildlife Federation v. Tulloch C/V-No. C-90-713-C/V-5-BO (E.D.N.C. 1992).

9. 33 CFR § 323.2(d)(1)(iii) (1998).

10. 40 CFR § 232.2(1)(iii) (1998).

11. 33 CFR § 323.2(d)(3)(I) (1998).

12. 56 Fed. Reg. 45,020 (1991).

13. 56 Fed. Reg. 45,017 (1991).

14. National Mining at 1403.

15. Id. 1403.

16. Avoyelles Sportmen's League v. Marsh, 715 F.2d 897, 924 (5th Cir. 1983).

17. National Mining at 1406.

18. Id. at 1404.

19. Id. at 1405.

20. Id.
 
 

University of Mississippi