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National Mining Ass'n v. Corps of Eng'rs

ELR Citation: 28 ELR 21318
Nos. 97-5099, 145 F.3d 1399/(D.C. Cir., 06/19/1998)

The court holds that the Tulloch rule's requirement of a Federal Water Pollution Control Act (FWPCA) §404 permit for incidental fallback exceeds the scope of the U.S. Army Corps of Engineers' FWPCA statutory authority. The court first holds 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. Because incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge. The court also holds that fallback does not become a pollutant on being dredged. Regardless of any legal metamorphosis that may occur at the moment of dredging, there can be no addition of dredged material when there is no addition of material. Congress could not have contemplated that the attempted removal of 100 tons of that substance could constitute an addition simply because only 99 tons of it were actually taken away. Although the Corps may legally regulate some forms of redeposits under §404, the Tulloch rule does not distinguish between these forms and incidental fallback and, therefore, the Corps is not entitled to deference.

The court then holds that the more lenient "no valid applications" test set forth in United States v. Salerno, 481 U.S. 739 (1987), does not apply to uphold the Corps' rule. A facial attack on the rule should not fail simply because the Corps might apply it to cases where an addition is present. The court further upholds a nationwide injunction prohibiting the Corps and the U.S. Environmental Protection Agency from enforcing the rule. The district court was well within its discretion in finding that the complaint placed the agencies on notice that both declaratory and injunctive relief were being sought. The district court was not required to make explicit findings as to the elements of an injunction before issuing the injunction. Further, an injunction issued here only as to the plaintiff organization would cause all others affected by the Tulloch rule to file separate actions for declaratory relief in this circuit. Issuance of a broad injunction obviates such repetitious filings.

[Prior decisions in this litigation are published at 27 ELR 20589 and 27 ELR 21143.]

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

Counsel for Appellants
Ronald M. Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sentelle, J.