Wetlands Ruling

To the surprise of absolutely no one, EPA's Environmental Appeals Board narrowly construed the decision in National Mining Association v. U.S.Army Corps of Engineers, 145F.3d 1399 (DC Cir. 1998), which enjoined EPA from enforcing the so-called "Tulloch Rule", which defined the discharge of dredged materials to include "any redeposit" of such material. The DC Circuit held that the incidental fall back of dredge materials was not a regulable "addition" of material under the Clean Water Act. In the case of In Re: Slinger Drainage, Inc., CWA AppealNo.98-10 (September29, 1999), the Environmental Appeals Board upheld the enforcement action that EPA Region5 brought against Slinger Drainage Inc. for using its Hoes Trenching Machine to dig a trench and lay drainage tile and then redeposit the excavated material back into the trench. In a curious twist of logic, the Board found that because Slinger redeposited all of the material that it excavated instead of just some of the material like the dredging company in the Circuit Court case, the decision in National Mining was not applicable. The Circuit Court had stated as follows:"We agree with the plaintiffs, and the District Court, that 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." and "[W]e fail to see how there can be an addition of dredged material when there is no addition of material." The Environmental Appeals Board nevertheless found that when there is no addition of a lot of material, it somehow becomes an addition.