National Mining Association v. U.S. Army Corps Of Engineers

145 F.3d 1399 (1998)

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Nature of the Case

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Facts

Section 404 of the Clean Water Act authorizes D to issue permits 'for the discharge of dredged or fill material into the navigable waters at specified disposal sites.' 'Discharge,' is 'any addition of any pollutant to navigable waters from any point source.' D defined 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.' In 1993, D 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.' When redeposit occurs in substantially the same spot as the initial removal, the parties refer to it as 'fallback.' The 1986 rule exempted de minimis soil movement, and the Tulloch Rule covers all discharges, however minuscule. It is virtually impossible to conduct mechanized land clearing, ditching, channelization or excavation in waters without causing incidental redeposition of dredged material. P claim that the Tulloch Rule exceeds statutory jurisdiction. Section 404 extends only to 'discharge,' defined as the 'addition of any pollutant to navigable waters.' Fallback cannot be said to constitute an addition of anything. The District Court agreed with P. D appealed.