145 F.3d 1399 (D.C. Cir. 1998), 97-5099, National Min. Ass'n v. United States Army Corps of Engineers

Docket Nº:97-5099, 97-5112.
Citation:145 F.3d 1399
Party Name:U.S.App.D.C. 329, 28 Envtl. NATIONAL MINING ASSOCIATION, et al., Appellees, v. U.S. ARMY CORPS OF ENGINEERS, et al., Appellants.
Case Date:June 19, 1998
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1399

145 F.3d 1399 (D.C. Cir. 1998)

U.S.App.D.C. 329,

28 Envtl.



U.S. ARMY CORPS OF ENGINEERS, et al., Appellants.

Nos. 97-5099, 97-5112.

United States Court of Appeals, District of Columbia Circuit

June 19, 1998

Argued Jan. 9, 1998.

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Appeals from the United States District Court for the District of Columbia (No. 93cv01754).

Ronald M. Spritzer, Attorney, U.S. Department of Justice, argued the cause for the federal appellants. With him on the briefs were Lois J. Schiffer, Assistant Attorney General, David C. Shilton, Alice L. Mattice, Attorneys, and Steven Neugeboren, Counsel, U.S. Environmental Protection Agency.

Howard I. Fox argued the cause and filed the briefs for appellants National Wildlife Federation, et al.

Virginia S. Albrecht argued the cause for appellees National Mining Association, et al. With her on the brief were Gary J. Smith and Harold P. Quinn, Jr.

Lawrence R. Liebesman, Robin L. Rivett, M. Reed Hopper, Robert J. Saner, II, and Nancie G. Marzulla were on the brief for amici curiae City of Colorado Springs, Colorado, et al.

Tom Udall, Attorney General, State of New Mexico, Alletta Belin, Assistant Attorney General, Winston Bryant, Attorney General, State of Arkansas, J. Joseph Curran, Jr., Attorney General, State of Maryland, Jeremiah W. Nixon, Attorney General, State of Missouri, Joseph P. Mazurek, Attorney General, State of Montana, Frankie Sue Del Papa, Attorney General, State of Nevada, W.A. Drew Edmondson, Attorney General,

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State of Oklahoma, William H. Sorrell, Attorney General, State of Vermont, and Christine O. Gregoire, Attorney General, State of Washington, were on the brief for amici curiae State of New Mexico, et al.

Before: SILBERMAN, WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge SILBERMAN.


Section 404 of the Clean Water Act (the "Act") authorizes the United States Army Corps of Engineers (the "Corps") to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344. Section 301(a) of the Act provides that the "discharge of any pollutant by any person" is unlawful unless in compliance with Act's permit requirements, including those of § 404. Id. § 1311(a). "Discharge," in turn, is defined as "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12).

In 1986 the Corps issued a regulation defining the term "discharge of dredged material," as used in § 404, to mean "any addition of dredged material into the waters of the United States," but expressly excluding "de minimis, incidental soil movement occurring during normal dredging operations." 51 Fed.Reg. 41,206, 41,232 (Nov. 13, 1986). In 1993, responding to litigation, the Corps issued a new rule removing the de minimis exception and expanding the definition of discharge to cover "any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States." 33 CFR § 323.2(d)(1) (emphasis added). Redeposit occurs when material removed from the water is returned to it; when redeposit takes place in substantially the same spot as the initial removal, the parties refer to it as "fallback." In effect the new rule subjects to federal regulation virtually all excavation and dredging performed in wetlands.

The plaintiffs, various trade associations whose members engage in dredging and excavation, mounted a facial challenge to the 1993 regulation, claiming that it exceeded the scope of the Corps's regulatory authority under the Act by regulating fallback. The district court agreed and granted summary judgment for the plaintiffs. American Mining Congress v. United States Army Corps of Engineers, 951 F.Supp. 267 (D.D.C.1997). The district court also entered an injunction prohibiting the Corps and the Environmental Protection Agency, who jointly administer § 404, from enforcing the regulation anywhere in the United States. Id. at 278. We affirm.

* * *

The Act sets up two independent permitting systems. See 33 U.S.C. § 1311(a). Section 402 authorizes EPA (or state agencies in some circumstances) to issue National Pollutant Discharge Elimination System ("NPDES") permits to control the discharge of wastewater into navigable waters. Section 404, the provision at issue in this case, authorizes the Corps, with EPA oversight, to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Id. § 1344(a). 1 At the time of the Act's passage in 1972, the Corps already had jurisdiction over navigational dredging under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403.

For the purposes of the Act, the phrase "navigable waters" has been construed to include wetlands. United States v. Riverside Bayview Homes, 474 U.S. 121, 131-32 & n. 8, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (upholding as not unreasonable an interpretation by the Corps that the Act is applicable to wetlands "adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as 'waters' "). 2 Wetlands, in turn, are defined

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by the Corps as areas "inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 33 CFR § 328.3(b). The United States Fish and Wildlife Service estimated that as of the 1980s there were 104 million acres of wetlands in the contiguous United States--about five percent of the total land surface of the lower 48 states. T.E. Dahl, Wetlands Losses in the United States 1780's to 1980's 5 (U.S. Fish & Wildlife Service 1990). (Because so much of Alaska is wetlands by the prevailing definition, the proportion rises to twelve percent if all 50 states are included.) Id. The plaintiffs assert that seventy-five percent of wetlands in the United States are privately owned. Plaintiffs' Br. at 6.

In 1977 the Corps promulgated regulations that generally tracked the statutory language, defining "discharge of dredged material" as "any addition of dredged material into the waters of the United States," with a few limited exceptions. 42 Fed.Reg. 37,145 (July 19, 1977). A new regulation issued in 1986 exempted from the permit requirement "de minimis, incidental soil movement occurring during normal dredging operations." 51 Fed.Reg. at 41,232. Although this regulation did not define "normal dredging operations," its preamble gave 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.

Id. at 41,210. The parties agree that the 1986 rule did, however, regulate "sidecasting," which involves placing removed soil in a wetland but at some distance from the point of removal (e.g., by the side of an excavated ditch). See 58 Fed.Reg. 45,008, 45,013/3 (Aug. 25, 1993) (noting that sidecasting has "always been regulated under Section 404.").

The 1993 rulemaking under challenge here was prompted by a lawsuit, North Carolina Wildlife Federation v. Tulloch, Civ. No. C90-713-CIV-5-BO (E.D. N.C.1992), concerning a developer who sought to drain and clear 700 acres of wetlands in North Carolina. See 58 Fed.Reg. at 45,016. Because the developer's efforts involved only minimal incidental releases of soil and other dredged material, the Corps's field office personnel determined that, under the terms of the 1986 regulation, § 404's permit requirements did not apply. Environmental groups, concerned by what they viewed as the adverse effects of the developer's activities on the wetland, filed an action seeking enforcement of the § 404 permit requirement. As part of the settlement of the Tulloch case (a settlement to which the developer was not a party), the two administering agencies agreed to propose stiffer rules governing the permit requirements for landclearing and excavation activities. The result--the regulation at issue here--has come to be called the "Tulloch Rule."

As mentioned above, the Tulloch Rule alters the preexisting regulatory framework primarily by removing the de minimis exception and by adding coverage of incidental fallback. Specifically, the rule defines "discharge of dredged material" to include "[a]ny 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." 33 CFR § 323.2(d)(1)(iii) (emphasis added). 3

The Tulloch Rule does have its own de minimis exception, but it is framed in terms of the Act's overall goals. A permit is not

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required for "any incidental addition, including redeposit, of dredged material associated with any activity that does not have or would not have the effect of destroying or degrading an area of waters of the United States." 33 CFR § 323.2(d)(3)(i). Persons engaging in "mechanized landclearing, ditching, channelization and other excavation activity," however, bear the burden of proving to the Corps that their activities would not have destructive or degrading effects. Id. Degradation is defined as any effect on the waters of the...

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