Appellate Court Upholds Tulloch Decision

On June 19, 1998, the U.S. Court of Appeals for the District of Columbia Circuit issued a significant decision concerning the regulatory authority of the Corps under Section 404 of the Clean Water Act, National Mining Ass'n v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998) (The "Tulloch" case). In an unanimous 3-0 opinion, the court affirmed the holding of the lower court that the Corps had overstepped its jurisdiction with a rule that required wetlands permits for certain excavation activities involving incidental fallback of dredged material. On September 28, 1998, the full panel rejected the Government's request for a hearing in banc. The Government is now considering whether to seek Supreme Court review.

Corps Permits for "Incidental Fallback" Not Required

At issue in National Mining was the extent of the Corps's authority to require landowners to get permits for excavation and dredging activities that result in "incidental fallback" of dredged material into wetlands. The Court interpreted Section 404 of the Clean Water Act (CWA), passed in 1972, that requires permits for the "discharge of dredged or fill materials" into "Waters of the United States" and wetlands. For many years, the Corps had defined "discharge" to exclude incidental fallback of soil as part of normal dredging and excavation activities. However, in 1993, the Corps reversed years of practice by issuing a rule that expanded "discharge" to include "redeposit of dredged material" including "incidental fallback from mechanized landclearing, ditching channelization or other excavation." Thus, for example, the dirt that falls from a dredge bucket when it is lifted from the water, or the soil that falls from the roots of a tree that is removed would be considered regulated incidental fallback. This had the effect of requiring permits for virtually all excavation, mechanized landclearing, and dredging performed in waters and wetlands.

A coalition of industry and landowner groups challenged the rule as exceeding the Corps' jurisdiction under the CWA. In January 1997, the U.S. District Court for the District of Columbia agreed, holding that the Corps could not require a permit for incidental fallback, because no pollutant had been added to the waters. The D.C. Circuit's June 19, 1998 decision upholding the lower court, found that:

The appellate court rejected the government's argument that fallback becomes an "addition" of a pollutant once it is dredged as "ingenious but unconvincing." It went on to characterize the government's position as "manifestly unreasonable," noting that the government admitted in oral argument that under this interpretation, the riding of a bicycle through a wetland could require a 404 permit for the dirt coming off the tires. The court further concluded that the rule was inconsistent with Congressional intent, as "Congress could not have contemplated that the attempted removal of 100 tons of [soil] could constitute an addition simply because only 99 tons of it were actually taken away." The court admonished the Corps that "[i]f the agencies and [National Wildlife Federation] believe that the [CWA] inadequately protects wetlands and other natural resources by insisting upon the presence of an 'addition' to trigger permit requirements, the appropriate body to turn to is Congress."

The Circuit Court, however, drew a critical distinction between "incidental fallback" and "sidecasting." The Court noted that "incidental fallback" does not include soil movements away from the original site. "Sidecasting," which the Corps has always regulated, involves such activities as "placing removed soil alongside a ditch and sloppy disposal practices involving significant discharges into waters" and will continue to be regulated.

Significance of Decision

The National Mining decision is a significant in several important ways:

• Nationwide injunction on enforcement of rule: The court upheld the lower court's nationwide injunction, forbidding the federal government from enforcing the rule anywhere in the United States. Thus, activities such as mechanized landclearing, excavation and ditching where the only discharges are incidental fallback of material will no longer require permits. The court also rejected the Corps' argument that parties in other circuits would have to individually litigate over the rule in order to benefit from an injunction.
• The Corps' expansion of jurisdiction reined in: This decision marks a significant curb on the Corps' jurisdiction, making it clear that not all activities in wetlands fall under the 404 permit program. The Corps has issued guidance interpreting "Tulloch" identifying certain activities that require "case-by-case" review to determine if they may still be regulated. These include certain mining, ditching, draining, and channelization activities.
• A legislative solution may be necessary: The National Mining court makes it clear that the Corps' attempt to use its rulemaking powers to turn 404 into a comprehensive wetlands law is unpersuasive. This may ultimately press Congress into taking up CWA reform in the near future.
• State laws may still be more stringent. Although National Mining reduces the scope of federal jurisdiction over certain activities in wetlands, it is important to note that many state wetland programs go much further than the 404 program. Maryland, for example, regulates all activities in the waters of the State, including wetlands. Such state regulation would be unaffected by the National Mining decision.