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American Mining Congress v. Corps of Eng'rs

ELR Citation: 27 ELR 20589
Nos. No. 93-1754 SSH, 951 F. Supp. 267/(D.D.C., 01/23/1997)

The court invalidates and sets aside the Tulloch rule, which defined "discharge" of dredged material in §404 of the Federal Water Pollution Control Act (FWPCA) to include the backspill that comes off of a bucket or shovel during wetlands excavation activities and falls back into the same place from which it was removed. The court first holds that Congress did not intend to cover such "incidental fallback" under §404. Section 404 refers to "discharges" but does not refer to the regulation of excavation or dredging materials. The fact that Congress has specifically referred to excavation activities in §10 of the Rivers and Harbors Appropriation Act of 1899 is evidence that Congress did not intend to regulate these activities under §404. In addition, the legislative history of the FWPCA indicates that Congress understood discharge to mean open-water disposal of material removed during the digging or deepening of navigable waterways. This understanding of discharge excludes the small-volume incidental discharge that accompanies excavation and landclearing activities. Moreover, until the issuance of the Tulloch rule, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers took the position that §404 applied to disposal, not removal, activities. The court holds that Congress, through its lack of amendment, ratified 18 years of agency and judicial interpretation that excluded incidental fallback from §404. Further, there have been several proposals in recent years to expand the scope of regulated activities under §404 and Congress has not passed any of them. The court next holds that the FWPCA's broad purpose "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" also does not support the rule. Courts look to a statute's general purpose in interpreting a provision only when Congress' intent is not clear. And even if the court were to look at the Act's broad purpose, such objectives do not translate into a congressional delegation of unrestricted authority to the agencies.

The court then holds that even if the term "discharge" were broad enough to cover incidental fallback, it would still hold that the Tulloch rule departs from Congress' intent to regulate only materials that are discharged at a "specified disposal site." Section 404's repetition of the idea of "specified disposal sites," as well as its structure, indicate that the site must have been affirmatively selected as a disposal site by the agencies. It also conveys Congress' understanding that "discharges" would result in the relocation of material from one site to another. The Tulloch rule makes the term "specified disposal site" superfluous; under the rule, all excavation sites are considered "specified disposal sites." The court therefore holds that the Tulloch rule exceeds the scope of the agencies' statutory authority and is invalid.

Counsel for Plaintiffs
Virginia S. Albrecht
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000

Counsel for Defendants
Alice L. Mattice
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000