ADDITION BY REMOVAL? NATIONAL MINING LIMITS SECTION 404 CONTROL OF CONSTRUCTION IN WETLANDS

MICHAEL HOLLINS[*]

Copyright © 1999 Journal of Land Use & Environmental Law

I. INTRODUCTION

The recent decision of the District of Columbia Court of Appeals in National Mining Association v. United States Army Corps of Engineers[1] cannot encourage those who look to the courts to protect wetlands. [2] National Mining held that the Tulloch Rule, [3] which embodied the hopes of environmentalists that all wetland construction could be regulated, was invalid on its face. This holding leaves little doubt that the main federal statute governing wetlands, section 404[4] of the Clean Water Act (CWA),[5] cannot fully control their development.

Section 404, as the CWA provision which regulates the disposal of dredged and fill material, was the authority for the Tulloch Rule. The rule arose out of opposition to a large North Carolina residential project, built during the late 1980's on a type of wetland with particu lar environmental value.[6] This development raised the question whether section 404 covers small redeposits of soil caused by excavation using machines like backhoes, dredges, and bulldozers. These redeposits, termed "incidental fallback," are the result of minor spillage from the bucket of the machine. [7] The fallback occurs as excavated material falls back onto the wetland near the place where it was removed. The redeposits have no purpose but are simply incidental to the activity with which they are associated.

Before the Tulloch Rule, regulation of wetlands under section 404 did not reach construction which produced only de minimis amounts of incidental fallback.[8] This section covers the deposit of material in wetlands, but not its mere removal by excavation. Developers like the one responsible for the North Carolina project had successfully used a strategy which exploited this gap. By digging ditches, channels, or retention ponds and taking care that almost none of the excavated material was redeposited, they could drain the wetland parts of a site without a federal permit.[9] This exacting process paid off by making further construction much easier, not only in terms of engineering, but also under the law. Once drained, the land could be developed using ordinary methods.[10] In this way, large areas of wetland were converted into development projects without the need for a section 404 permit.

The purpose of the Tulloch Rule was to close off this means of avoiding section 404 regulation.[11] Environmental groups had long been concerned by what they considered the habitual reluctance of the U.S. Army Corps of Engineers ("Corps") to protect wetlands ag gressively.[12] One of these groups sued the Corps in North Carolina Wildlife Federation v. Tulloch.[13] This suit challenged the Corps' authority to issue a permit for the North Carolina project. The Corps and the EPA, co-administrators of section 404 from the beginning,[14] decided to settle the suit by agreeing to regulations to prevent similar development. They adopted the Tulloch Rule in 1993 as a result of this settlement agreement.[15]

The effect of the Tulloch Rule was to require a permit for almost all mechanized landclearing and excavation of the type needed to develop wetland sites.[16] The rule achieved this result by extending Section 404 to reach "any addition, including any redeposit" of material, even in de minimis amounts.[17] The existence of an "addition" is a necessary condition for section 404 jurisdiction.[18] If the addition comes from a "point source,"[19] consists of a "pollutant,"[20] and takes place in a "water of the United States,"[21] it is also a "discharge"[22] within the meaning of the CWA.

This article has three main parts. Because the statutory authority for the Tulloch Rule is the central issue in National Mining, Part Two reviews the basic features of the CWA and the context in which it operates. Part Three considers the most significant arguments for the Tulloch Rule presented in the case and analyzes the reasoning the court followed in rejecting them. Part Four analyzes how the Tulloch Rule operated, in order to explain how its purpose and design contributed to making it invalid. A conclusion follows.

II. THE ROLE OF SECTION 404 OF THE CLEAN WATER ACT OF 1972

A. Legislative History

Responding to a growing public demand for greater environmental protection, Congress in 1972 extensively amended the Federal Water Pollution Control Act[23] to create a comprehensive program to control water pollution. The objective of this amended statute, now commonly termed the Clean Water Act,[24] was "to restore and main tain the chemical, biological, and physical integrity of the Nation's waters."[25] As the central means to achieve this objective, the CWA established a National Pollution Discharge Elimination System (NPDES).[26] The recently-created EPA was to administer the NPDES, with authority to control the discharge of pollutants from point sources into U.S. waters.[27]

Congress was hesitant, however, to subject the huge volumes of material[28] dredged from major shipping channels to the NPDES.[29] Some members argued that overly exacting regulation of dredged material, especially if administered by the EPA with its limited resources, might interfere with the country's commerce.[30] Some were also concerned that EPA's regulation under the NPDES would infringe the Corps' existing regulation under section 10 of the Rivers and Harbors Act of 1899 (RHA).[31] Responding to these concerns, Congress created section 404 as an exception to the NPDES.[32] It hoped to make open-water disposal of dredged material as environmentally benign as possible without unduly disrupting the country's commerce[33] until some better method could be found.[34] This section accomplished this goal by confining disposal to certain locations.[35] This compromise also resulted in dual administration of section 404. The Corps, with its longtime experience in dredging, was to take the lead in issuing permits for the disposal of dredged material.[36] The EPA was ostensibly to support this effort by issuing guidelines for disposal.[37] However, its inclusion also reflected the concern of some in Congress that the Corps' environmental stewardship should be monitored.[38]

B. Permit Criteria

The chief provisions of section 404 divide permit authority between the Corps and the EPA. Subsection 404(a) authorizes the Corps, consulting with the EPA, to issue permits specifying disposal sites "for the discharge of dredged or fill material into the navigable waters."[39] Where an activity causes a discharge of this material and thus invokes section 404, the Corps uses a public interest test to decide whether to issue a permit. Under this test, the Corps considers the public need for the proposed activity as well as the appli cant's need for it.[40] It also estimates how strong and how permanent the activity's positive and negative effects are likely to be.[41] In par ticular, the Corps determines whether there are practical alternatives to the proposal.[42] If these exist, are in other respects environmentally benign, and would damage the aquatic environment less, it must ordinarily deny the permit.[43] When it considers whether alternatives are available, the Corps looks to the time when the applicant first entered the market for land for the proposed project.[44]

The Corps must determine whether a permit for a proposed activity is in the public interest according to the guidelines EPA adopts.[45] Subsection 404(a) requires the Corps' permitting authority to comply with the provisions of subsection 404(b).[46] Section 404(b)(1) directs the EPA, together with the Corps, to develop guidelines for designating disposal sites.[47] The EPA must base these guidelines on criteria similar to those which CWA section 403(c) applies to ocean discharges.[48]

C. Basis for Jurisdiction

The agencies' jurisdiction under the CWA derives from Congress' power to regulate interstate commerce under the Commerce Clause of the U.S. Constitution.[49] Although the CWA defines jurisdiction under section 404 broadly as the "waters of the United States,"[50] it does not directly address wetlands. The agencies at first interpreted their physical jurisdiction narrowly,[51] but court decisions expanded it. In 1974, several federal courts[52] construed federal jurisdiction to extend landward from the usual boundary between waters which are literally navigable and wetlands.[53] Under this construction, the agencies' section 404 jurisdiction reached waters which are not navigable by traditional standards. The Corps, however, for some time declined to change its regulations to reflect these decisions.[54]

This resistance of broader jurisdiction gave rise to a citizen suit in National Resources Defense Council v. Callaway.[55] Callaway required the Corps to publish regulations applying section 404 to "the waters of the United States," even if not literally navigable. By invalidating regulations which had effectively placed about one-half the country's wetlands outside the agencies' jurisdiction,[56] this decision greatly enlarged the area which the Corps must regulate.[57] By 1985, when the Supreme Court decided United States v. Riverside Bayview Homes,[58] the Corps was not resisting broader jurisdiction in the regulation at issue in that case. This regulation included wetlands which, although adjacent to navigable waterways, had no overt hydrologic connection to them. Noting that Congress meant the CWA to achieve the fullest possible protection of U.S. waters, the Court held that section 404 could reach land which was not flooded or permeated by water from an adjacent navigable body.[59] Riverside Bayview Homes establishes beyond doubt that section 404 covers wetlands as well as waters which are literally navigable.[60]

D. The Rivers and Harbors Appropriations Act of 1899

A conflict between section 404 of the CWA and the RHA[61] over dredging provides another important background issue in National Mining. When it assigned the disposal of dredged material to section 404, Congress nevertheless left control over dredging itself under the RHA.[62] The RHA governs dredging activities but does not reach wetlands; the CWA governs wetlands but does not reach dredging activities.[63] The National Mining court held that the Tulloch Rule was an unauthorized attempt to govern dredging activities in wetlands, in effect using the CWA's authority to import the lacking jurisdiction from the RHA.[64] Therefore, although the RHA was not directly at issue in National Mining, a full understanding of the case calls for some consideration of it.

In the RHA, Congress authorized the Corps to protect the navigability of the country's waterways.[65] Two sections of the RHA have been especially important in this effort. Section 10 authorizes the Corps to regulate structures and "work" which might affect navigation.[66] A major part of this work, much of which is done on a very large scale, consists of dredging in areas of heavy ship traffic.[67] The Corps either commissions this dredging or performs it itself. Section 13, commonly termed the "Refuse Act," reduces the hazard to shipping from waterborne debris by requiring a permit to deposit most refuse into navigable waters.[68]

During the RHA's first sixty years, courts viewed the Corps' responsibilities under the Act in terms of navigation only.[69] The Fish and Wildlife Coordination Act (FWCA), however, as amended in 1970,[70] obligated federal agencies to determine in advance the effects of their projects on fish and wildlife.[71] This development seemed to require the Corps to assess these effects before issuing a dredge and fill permit under section 10 of the RHA. An important decision of the Fifth Circuit in Zabel v. Tabb[72] upheld the Corps' authority to deny these permits solely on environmental grounds.[73]

As late as the 1960's, the Corps continued to regard the purpose of section 13 as assuring safe and efficient navigation.[74] Federal prosecutors, however, began about 1960 to use section 13 successfully against industrial water polluters.[75] Its success in this newer environmental application persuaded President Nixon to make the Refuse Act the basis of a more general program. He set this out in a 1970 executive order which directed the Corps to use permits to control water pollution.[76] Before long, however, the District Court for the District of Columbia invalidated this plan by ruling that section 13 provided no statutory authority for the program.[77] This result both limited the environmental role of the RHA[78] and made clear that a national campaign against water pollution must rest on a firmer legal foundation. The CWA became this foundation.[79]

III. THE HOLDING IN NATIONAL MINING

A. Incidental Fallback and the "Addition" Problem

At least after publishing new regulations in 1986, the Corps had avoided the overextension of the CWA which was fatal to the Tulloch Rule by exempting de minimis amounts of incidental fallback from section 404 coverage.[80] By assuring that CWA regulation of a discharge did not directly reach the activity which generated it, this exemption prevented infringement on RHA jurisdiction.[81] The agencies' acknowledgment that excavation without incidental fallback was practically impossible[82] made a de minimis exemption all the more necessary. Without it, the Corps would be openly admitting that in practice, it was reaching an act of excavation every time it regulated the fallback incidental to that act under section 404.[83] If the RHA alone governs acts of excavation, however, the CWA could not authorize any regulation so extensive.[84]

The development challenged in Tulloch converted about 700 acres of a unique type of coastal wetland called pocosin into housing.[85] It furnished a harsh demonstration that the Corps' policy against regulating incidental fallback hindered its ability to prevent the loss of environmentally valuable wetlands. The landowner had been careful to consult with the Corps' district office at every stage of the project, and each time it could find no grounds for requiring a section 404 permit.[86] However disconcerting to environmental groups the Corps' acquiescence was, it was consistent with the agencies' position that Congress did not intend the CWA to govern excavation activities. In the Tulloch settlement, however, the Corps agreed to propose a rule whose validity rested on just that interpretation.[87]

In the District Court for the District of Columbia, opponents of the Tulloch Rule brought a facial challenge that it was inconsistent with the language and intent of the CWA and therefore exceeded the Corps' section 404 jurisdiction.[88] In National Mining, the plaintiffs' main claim was that the Corps' interpretation of incidental fallback as an "addition" violated the unambiguous terms of the CWA.[89] The Corps in return offered its main counterargument,[90] which relied on two undisputed facts. The first was that the CWA defines "dredged material" as wetland soil, sediment, debris, or other material excavated from United States waters.[91] The second was that the CWA includes "dredged spoil," as well as rock, sand, and "cellar dirt," in its definition of "pollutant."[92] The argument concluded from these definitions that dredged material undergoes a legal metamorphosis into a pollutant at the moment of excavation.[93] Therefore, the redeposit of part of this material as incidental fallback is the addition of a pollutant from a point source to a water of the United States—a discharge. As a discharge, the Corps argued, the fallback was regulable under section 404.

The court rejected this argument, holding that incidental fallback resulting from a net withdrawal of dredged material cannot reasonably be considered an addition.[94] Therefore it is irrelevant whether any legal metamorphosis into a pollutant takes place.[95] No addition of a pollutant material can occur when there simply is no addition of material.[96] The court seemed to give great weight to the large proportion of removed to redeposited material which characterizes incidental fallback. In a statement that went to the heart of the decision, it said that "Congress could not have contemplated that the attempted removal of 100 tons of [dredged spoil] could constitute an addition simply because only 99 tons of it were actually taken away."[97] The court then emphasized that the RHA governs the removal of material from United States waters.[98] It concluded that the agencies could not reach this activity simply by declaring in a CWA regulation that incomplete removal constitutes addition.[99]

In coming to its decision, the District of Columbia Circuit had to resolve the underlying question of how to define an "addition."[100] The National Wildlife Federation, which defended the rule, argued that to interpret "addition" as the plaintiffs urged would read regula tion of dredged material out of Section 404.[101] The court agreed that, because dredged material comes from United States waters,[102] this would indeed be the result of requiring that a pollutant come from outside a wetland to constitute an "addition."[103] It also acknowledged that the discharge of dredged material back into a water could broadly be construed as a "redeposit."[104] Nevertheless, the court said, it was not holding the Corps could not regulate some redeposits under section 404.[105] Rather, it was holding only that the Tulloch Rule's assertion of jurisdiction over incidental fallback exceeded the Corps' statutory authority.[106] The court observed that, because the CWA draws no "bright line" between a regulable redeposit and incidental fallback, a "reasoned attempt" to differentiate the two "would merit considerable deference."[107] However, it found that the purpose of the Tulloch Rule was to expand the Corps' authority to include a range of activities which "cannot remotely be said to 'add' anything" to U.S. waters.[108]

Judge Silberman's concurring opinion raised several interesting issues. He began by explaining the standard of review the court had implicitly used in characterizing the Tulloch Rule's interpretation of incidental fallback as "unreasonable." He believed the court had concluded that neither section 404's plain language nor its legislative history revealed Congress' precise intent on this question, and that it was therefore evaluating the rule under Step II of the Chevron test.[109] This second step of the Chevron test makes reasonableness the criterion by which courts assess the validity of administrative agencies' statutory interpretations.[110] Judge Silberman reiterated the majority's view that to apply the word "addition" to dredged material connotes that it was either moved some distance away and then dropped, or held for some time before being dropped back in the same place.[111] He then identified two ways in which the Tulloch Rule failed as a reasonable interpretation of the meaning Congress intended for an "addition" under the CWA.

First, because incidental fallback is inevitable in dredging, the Tulloch Rule's treatment of it as an "addition" converts all dredging into the discharge of dredged material.[112] A comparison of the CWA with the RHA, however, indicates that it is not reasonable to do this.[113] Second, Section 404 authorizes the Corps to issue permits for discharges at "specified disposal sites."[114] This construction suggests that Congress meant for the material to be discharged at some distance from the place where the dredging occurred, and after some time.[115] This meaning, however, simply does not fit incidental fallback, which is immediate and occurs close to the point of dredging.[116]

Judge Silberman observed finally that the Corps tried to avoid these problems with its "metamorphosis" argument, in which he found a logical problem. The argument construed the CWA to make incidental fallback a discharge, because the excavated material became a pollutant when it was dredged and an addition when redeposited.[117] The concurring opinion noted that this argument begs the question of what constitutes a "discharge," because rock and sand only become "pollutants" under the CWA once they are "discharged into water."[118] Under the "metamorphosis" argument for the Tulloch Rule, however, incidental fallback of rock or sand becomes a "discharge" only because that material had already become a pollutant before its addition to the water.

B. Incidental Fallback in Case Law

The Corps also attempted to defend the Tulloch Rule by relying on case law. National Mining addresses several of these cases decided before the rule was published. The case law argument drew in part on the Fifth Circuit's statement in Avoyelles Sportsmen's League, Inc. v. Marsh[119] that "the word 'addition,' as used in the definition of the term 'discharge,' may reasonably be understood to include 'redeposit.'"[120] The National Mining court, however, found that this statement did not address incidental fallback.[121] Avoyelles concerned the displacement of large amounts of soil during the conversion of a wetland site to soybean fields. In this construction, trees were uprooted, pushed into windrows together with the soil they dragged along, and set afire. The partly burned material was then either buried or disked into the soil.[122] The basis for the Avoyelles decision was the court's finding that a discharge of fill material[123] had occurred.[124]

The argument from case law also cited United States v. MCC of Florida,[125] but the National Mining court questioned the decision's relevance to incidental fallback.[126] In MCC, a construction firm used a tugboat to transport building materials to a site. The boat made many passages through a shallow channel in the course of this work, and its propeller wash excavated bottom sediment and cast it to the side. This sediment settled onto and gradually destroyed adjacent beds of sea grass. The Eleventh Circuit held that this deposit was a regulable discharge of dredged spoil.[127] As in Avoyelles, however, both the amount of the material redistributed and its direct effect were far greater than what occurs with incidental fallback. The deposit was sufficient to smother plants that had, until then, been able to survive all naturally-induced shifting of bottom sediments. The National Mining court observed that the redeposit in MCC was in any event less analogous to incidental fallback than to sidecasting.[128] Sidecasting usually occurs during trenching, as the excavating machine deposits a row of dirt alongside the trench and a few feet to the side of it.[129] This material is then easily collected and hauled away.

The District of Columbia Circuit stated that Rybachek v. EPA[130] may have been the strongest case supporting the Tulloch Rule.[131] The defendants in Rybachek, while conducting placer mining, had excavated soil and gravel from a streambed in order to extract gold. After this was done, they discharged the leftover material back into the water. The Ninth Circuit held that the material discharged was a pollutant, and that to the extent it originally came from the streambed, its "resuspension" could be interpreted as the addition of a pollutant under the CWA.[132] The National Mining court observed that if the Ninth Circuit had held instead that extraction of the gold accompanied by incidental fallback was the addition of a pollutant, Rybachek would have helped the agencies.[133] However, the Rybachek court regarded the reinjection of the processed material as a discrete act which took place, not in the course of extracting the gold, but after it had been completed.[134]

IV. HOW THE TULLOCH RULE DEVELOPED

A. The de Minimis Exemption of Incidental Fallback

This section will explain how the Tulloch Rule altered previous regulation to extend jurisdiction under section 404. The rule had the difficult task of extending section 404 to excavation activities on wetlands while purporting to regulate only their discharges.[135] The solution to this problem of statutory jurisdiction relied primarily on recasting the de minimis exemption of incidental fallback. The Tulloch Rule preserved this exemption in form while making it nearly impossible to achieve in fact.[136] The de minimis exemption remained useful to the agencies, if not to applicants, because its asserted that incidental fallback was not regulable in every case. Its preservation therefore allowed the agencies a colorable claim that the rule did not categorically regulate wetland excavation.

In the commentary accompanying the Tulloch Rule, the agencies also observed that the de minimis exemption for fallback relieved them of the need to make a finding of fact that there could be no excavation without a discharge.[137] However remote the possibility of an excavation activity which would produce no fallback, they did not have to find that such an activity was literally impossible. The agencies stated that excavation without incidental fallback was "virtually impossible,"[138] but now they asserted that some advanced excavation technique might conceivably produce discharges so small as to be exempt.[139] However, the Tulloch Rule offered no means by which a proponent of any sort of construction might reasonably estimate whether its incidental discharges would be regulable.

Two characteristics in particular of the Tulloch Rule's de minimis exemption tended to reduce it to an artifice. First, although the previous basis for such exemption of a discharge had been its physical magnitude,[140] the rule now cast the exemption in terms of environmental effect.[141] The Tulloch Rule reached any discharge that the agencies had concluded would "degrade" any quality of the affected water.[142] While not quantifying the magnitude of this threshold, the agencies emphasized that it would be "very low."[143] Second, the Tulloch Rule placed on the proponent of an activity the burden of demonstrating that its incidental discharges would have only "inconsequential" adverse effects.[144]

B. The Section 404 "Recapture Clause" and Regulation by Effect

The agencies found another method for achieving the Tulloch Rule's purpose in an unlikely place: a subsection of 404 addressing agriculture, timbering, mining, and ranching. The enlargement of the Corps' jurisdiction after the Callaway decision created the problem that these activities increasingly entailed discharge permits.[145] Land left fallow, for example, might begin to revert to wetland, or a temporary logging road might affect runoff to wetlands. Subsection 404(f), an important feature of the 1977 Amendments to the CWA, was Congress' solution of this problem.[146] The purpose of the subsection is to protect established farming, silviculture, mining, and ranching operations from overly intrusive regulation.[147] Section 404(f)(1) exempts discharges associated with listed activities from the permit requirement.[148] Section 404(f)(2), the "recapture clause," serves as a check on section 404(f)(1) by reinstating the requirement for discharges with certain excessively harmful effects.[149] The most important cases interpreting subsection 404(f) address the operation of the recapture clause in reaching once-exempt agricultural activities that had somehow changed since their initial exemption.[150]

The approach of the Tulloch Rule is quite similar to that of a plan which had been suggested in two law review articles.[151] These articles urged a broad interpretation of section 404(f)(2), which has generally been thought of merely as a vehicle to recapture otherwise exempt activities listed in section 404(f)(1).[152] This new reading would allow the agencies to reach activities other than those in section 404(f)(1), rather than exempting the discharges from them as de minimis.[153] In the proposed scheme, the clause would now operate together with a de minimis exemption to allow the capture of activities formerly outside section 404 jurisdiction.[154] This novel application of section 404(f)(2) would bring an activity within the ambit of section 404 whenever its incidental discharge had the ultimate effect of changing the use of a wetland.[155] It is not clear whether the design of the Tulloch Rule derived from this proposal. To the extent that the rule reflected the proposal's scheme, however, it relied on a statutory interpretation that the weight of authority does not support.[156]

V. CONCLUSION

As of this writing, the District of Columbia Circuit had denied the agencies a rehearing,[157] but they had not decided whether to appeal the National Mining decision to the U.S. Supreme Court.[158] The inventive nature of the defenses which the appellants pre sented,[159] however, reflects the weakness of the Tulloch Rule's foundation in law. In only one case does a decision squarely support the proposition that incidental fallback is a regulable discharge.[160] Even there, the district court specifically limited its holding to the direct effect of the fallback itself, and not the ultimate effect of the activity which produced it.[161] As the court suggested in National Mining, the Tulloch Rule seemed to be less a reasoned effort to interpret section 404 than a stratagem for extending the Corps' authority.[162]

National Mining vindicates the Corps' earlier caution in interpreting that authority. The CWA did not begin as a wetlands statute, nor was that the main purpose of section 404.[163] Its power to authorize regulations protecting wetlands is limited by this history. The Corps' decision to remedy this limitation by agreeing to propose what became the Tulloch Rule was ill-considered, as was the private suit which prompted this decision. Although other means of regulating wetlands are still available to the EPA and the Corps after National Mining,[164] the decision significantly weakens section 404. If its strength is to be restored, then it is Congress, and not the agencies, which must create the needed authority.

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[*] I am a third-year student at Washington University Law School with a particular interest in land-use and environmental law. I wish to thank Professor Daniel Mandelker for his helpful comments on earlier drafts of this article. Return to text.

[1] National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399 (D.C. Cir. 1998). Return to text.

[2] According to the Corps of Engineers, wetlands are "[t]hose areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." 33 C.F.R. § 328.3(8)(b) (1998). Return to text.

[3] See Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008 (1993). The most significant features of this rule were codified at 33 C.F.R. § 323.2(d)(1)(iii) (1994). The EPA adopted a parallel rule, codified at 40 C.F.R. § 232.2(1)(iii) (1994). With few exceptions, this article cites only the Corps regulations. Return to text.

[4] Clean Water Act § 404, 33 U.S.C. § 1344 (1994 & Supp. II 1996). Return to text.

[5] Clean Water Act of 1972, 33 U.S.C. §§ 1251-1376 (1994 & Supp. II 1996). See infra notes 24-25 and accompanying text. Return to text.

[6] The preamble to the Tulloch Rule describes this project and its environmental effects in detail. See Regulatory Programs, 58 Fed. Reg. 45,016. Return to text.

[7] See id. at 45,018. Return to text.

[8] See infra notes 17 and 80. Return to text.

[9] See United States v. Wilson, 133 F.3d 251, 254-55, 258 (4th Cir. 1997) (discussing whether drainage had removed sites from wetland status before addition of fill material in housing development without section 404 permit); Save Our Community v. United States EPA, 971 F.2d 1155 (5th Cir. 1992) (holding that pumping to dry out natural ponds and allow expansion of landfill created no regulable discharge under section 404), rev'd 741 F. Supp. 605 (N.D. Tex. 1990); Orleans Audubon Soc'y v. Lee, 742 F.2d 901 (5th Cir. 1984) (holding that section 404 did not reach destruction of wetland forest by drainage where sole discharge from drainage channels was clear water); Salt Pond Assocs. v. United States Army Corps of Eng'rs, 815 F. Supp. 766 (D. Del. 1993) (holding that excavation of ponds on site containing wetlands, providing drainage while causing only incidental discharges, did not require section 404 permit). Return to text.

[10] See Wilson, 133 F.2d at 254-55, 258; see Kevin O'Hagan, Comment, Pumping With the Intent to Kill: Evading Wetlands Jurisdiction under Section 404 of the Clean Water Act Through Draining, 40 DE PAUL L. REV. 1059, 1080 (1991). Return to text.

[11] In the settlement of the Tulloch lawsuit, the plaintiffs demanded regulations which would achieve this purpose, and the agencies agreed to propose them. See Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008 (1993); "[I]t is precisely because of operations like this development [in Tulloch] that the Corps and EPA have decided to promulgate this rule." Id. at 45,016. Return to text.

[12] This concern was common well before the CWA was enacted in 1972. See W. Christian Hoyer, Corps of Engineers Dredge and Fill Jurisdiction: Buttressing a Citadel Under Siege, 26 U. FLA. L. REV. 19, 29 nn.80-81, 30-35 (1973). It was also evident during the CWA's creation: "[W]e have found . . . that mission-oriented agencies whose concern is something other than concern for the environment simply do not adequately protect environmental values. That is not [the Corps'] mission." 2 ENVIRONMENTAL POLICY DIVISION, CONGRESSIONAL RESEARCH SERVICE, 92d Cong., 2d Sess., Ser. No. 92-14, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1972, at 1389 [hereinafter "LEGISLATIVE HISTORY (1972)"] (statement of Sen. Muskie in Senate debate on SB 2770). It continued well past this time, as shown by a 1989 article whose authors urged that Congress take away the Corps' section 404 authority entirely. They stated that "[t]he central impediment to an effective regulatory program [is] the unwillingness of the permit-issuing agency to implement the program aggressively." Michael C. Blumm and D. Bernard Zaleha, Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for Reform, 60 U. COLO. L. REV. 695, 699 (1989). But see Garrett Power, The Fox in the Chicken Coop: The Regulatory Program of the United States Army Corps of Engineers, 63 VA. L. REV. 503, 559 (1977) ("Once the nemesis of the environmentalists, the Corps is now their hero. In the words of Senator Edmund Muskie, '[W]e have put the fox in the chicken coop [and it has] become a chicken . . . .'"). Return to text.

[13] North Carolina Wildlife Fed'n v. Tulloch, Civ. No. C90-713-CIV-5-BO (E.D. N.C. 1992). Return to text.

[14] Because the Corps shares administration of section 404 with the EPA, this article ordinarily uses the terms "agencies" and "Corps" interchangeably. Where the Corps is the primary subject of discussion, however, it is referred to by name. Return to text.

[15] See National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1402 (D.C. Cir. 1998). Return to text.

[16] See id. at 1403. Return to text.

[17] In 1986, the Corps published the rule that the Tulloch Rule superseded. See id. at 1401. The 1986 rule defined the term "discharge of dredged material" under section 404 as "any addition of dredged material into the waters of the United States," excluding "de minimis, incidental soil movement occurring during normal dredging operations." Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,232 (1986). The Tulloch Rule changed this definition to include "any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States." 33 C.F.R. § 323.2(d)(1) (1998) (emphasis added). The revised definition also encompassed discharges of "excavated material" which were "incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation." 33 C.F.R. § 323.2(d)(1)(iii) (emphasis added). Return to text.

[18] Under the CWA, an "addition" is necessary for a "discharge." 33 U.S.C. § 1362(12) (1994 & Supp. II 1996). Without a "discharge" there can be no section 404 jurisdiction. See infra note 22. Return to text.

[19] The CWA defines a point source as "[a]ny discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14) . Courts have also found various machines to be point sources. See, e.g., Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983) (finding bulldozers and land clearing equipment); United States v. Holland, 373 F. Supp. 665, 668 (M.D. Fla. 1974) (finding bulldozers, dump trucks, and draglines). Return to text.

[20] The CWA defines a "pollutant" as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, munici pal, and agricultural waste discharged into water." 33 U.S.C. § 1362(6) . Return to text.

[21] The CWA authorizes the Corps to issue permits for the discharge of dredged or fill material "into the navigable waters . . . ." 33 U.S.C. § 1344(a). The CWA defines "navigable waters" as "the waters of the United States, including the territorial seas." Id. § 1362(7). It does not in turn define "the waters of the United States." In its regulations, the Corps defines "waters of the United States" as all "waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide." 33 C.F.R. § 328.3(1) (1998). This definition encompasses "all interstate waters including interstate wetlands," id. at § 328.3(2), and wetlands adjacent to listed waters, "other than waters which are themselves wetlands," id. § 328.3(7). For a detailed history of the expansion of the Corps' jurisdiction over navigable waters, see Hoyer, supra note 12, at 20-25. Return to text.

[22] "Discharge" means "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A). The "discharge of a pollutant by any person" is unlawful if not in compliance with the applicable CWA permit requirements. Id. § 1311(a). Because section 404 authorizes the Corps to issue permits "for the discharge of dredged or fill material," no jurisdiction under that section exists without a "discharge." "The existence of discharge is critical. The discharge must be of effluent or dredged or fill material . . . . [O]n the face of the statute, it is the requirement for statutory coverage." Save Our Community v. United States EPA, 971 F.2d 1155, 1163 (5th Cir. 1992). Return to text.

[23] The Federal Water Pollution Control Act Amendments, Pub. L. No. 92-500, 86 Stat. 816 (1972), substantially expanded and reorganized the Federal Water Pollution Control Act of 1948, ch. 758, 62 Stat. 1155. Return to text.

[24] Clean Water Act, 33 U.S.C. §§ 1251-1376. During its first five years, the Act was commonly known as the Federal Water Pollution Control Act (FWPCA). Since 1977, when Congress amended the Act and officially approved the term "Clean Water Act," it has usually been called by that name. See Michael Blumm, The Clean Water Act's Section 404 Program Enters Its Adolescence: An Institutional and Programmatic Perspective, 8 ECOLOGY L. Q. 410, 410 (1980). Return to text.

[25] 33 U.S.C. § 1251(a). Return to text.

[26] See Charles Ablard and Brian O'Neill, Wetland Protection and Section 404 of the FWPCA Amendments of 1972: A Corps of Engineers Renaissance, 1 VT. L. REV. 51, 55 n.20 (1976). Return to text.

[27] The EPA has general authority to develop comprehensive programs to control water pollution under 33 U.S.C. § 1252. Section 402 gives the EPA authority over the most important of these, the NPDES permit program. See id. § 1342. Return to text.

[28] Water movements in shipping channels shift and pile up bottom sediments, and the resulting shallows pose a hazard to navigation. Therefore large dredges are used to deepen the channel by excavating this built-up material. Once extracted, the material is often referred to as "dredged spoil." Heavy weather increases the amount of dredging needed, and this amount therefore varies both by season and by year. See generally Allan Bakalian, Regulation and Control of United States Ocean Dumping: A Decade of Progress, an Appraisal for the Future, 8 HARV. ENVT'L L. REV. 193 (1984). Data available for 1979, a fairly representative year, show that more than 70 million cubic yards of dredged materials were dumped into oceans off the coasts of the United States. See id. at 204. The proportion of dredged spoil was almost eight times that of all other categories (e.g., sewage sludge, industrial wastes) combined. See id. Return to text.

[29] Senator Ellender, for example, was concerned that SB 2770, the bill which resulted in the CWA, did not differentiate the disposal of dredged material from that of other effluents: "[O]ne of the main deficiencies of this bill is that it treats dredged materials the same as industrial waste, sewage sludge, or refuse introduced into a river system, lake, estuary, or ocean. The disposal of dredged material does not involve the introduction of new pollutants; it merely moves the material from one location to another." LEGISLATIVE HISTORY (1972), supra note 12, at 1386 (statement of Sen. Ellender in Senate debate). Return to text.

[30] "The strict adherence to the [EPA's] published standards would result in 90 percent of the ports and harbors of the United States being closed, until such time as land disposal areas are provided. This would create a catastrophical situation with respect to our foreign and domestic commerce." Id. at 1387 (statement of Sen. Ellender in Senate debate); "Will the Senator please tell me why . . . the Corps of Engineers only with respect to dredging should not be subject to what [i.e., EPA's § 404 certification of discharges] we are requiring of every other agency?" Id. at 1388 (question by Sen. Muskie in Senate debate);

"In order to get their job done. This project [thirty diked dredged spoil disposal sites for the Great Lakes which Congress had earlier that year voted the Corps the funds to build] has got to stand by and wait and wait and wait for the application. The new agency [EPA] has not been in operation very long. I do not charge them with wrongdoing but they need time to develop."

Id. (response of Sen. Stennis). Return to text.

[31] The Corps was already exercising its authority under section 10 of the RHA to regulate discharges into waters which were actually navigable, see infra note 64. SB 2770, however, included dredged spoil, rock, sand and cellar dirt in its list of pollutants, which the EPA was to regulate under the NPDES. Whenever a discharge of these materials took place in navigable waters, therefore, both agencies would have permitting authority. Moreover, it seemed that the NPDES, by covering dredged spoil, would authorize the EPA to regulate the vast discharges caused by the Corps' own channel maintenance. See Power, supra note 12, at 522. Return to text.

[32] Senator Ellender proposed section 404, which Congress enacted in substance, to exempt regulation of dredged material from the NPDES. See LEGISLATIVE HISTORY (1972), supra note 12, at 1388 (statement of Sen. Muskie in Senate debate) ("What Senator Ellender's amendment would do would be to exempt dredging."); Power, supra note 12, at 522; Blumm, supra note 24, at 415. Return to text.

[33] "If polluted discharges from municipal and industrial sources are controlled as required by this bill, the disposal of dredged material in open water presents no significant problem." LEGISLATIVE HISTORY (1972), supra note 12, at 1386 (statement of Sen. Ellender in Senate debate);

"The Secretary and the Administrator shall act promptly on dredging permits essential for the maintenance of interstate commerce because of the seasonal nature of dredging and the need to preschedule scarce dredging equipment. It is expected that until such time as feasible methods for disposal of dredged and fill material are available, unreasonable restrictions shall not be imposed on dredging activities essential for the maintenance of interstate and foreign commerce."

Id. at 325 (report of the Conference Committee). Return to text.

[34] "In fact, Congress intended that section 404 in the 1972 act would in its initial implementation end the open water disposal of dredge spoil. Quite the contrary has been the case." SENATE REPORT NO. 370, 95th Cong., 1st Sess. 68 (1977), reprinted in 4 Environmental Policy Division, Congressional Research Service, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977, 95th Cong., 2d Sess., Ser. No. 95-14, at 701 (1978) [hereinafter LEGISLATIVE HISTORY (1977)]; "[T]he [Conference] Committee expects the [EPA] Administrator and the Secretary [of the Army] . . . to identify land-based sites for the disposal of dredged spoil and, where land-based disposal is not feasible, to establish diked areas for such disposal. [T]he only justification for continuing to utilize open water disposal is the cost of alternatives." LEGISLATIVE HISTORY (1972), supra note 12, at 177-78 (statement of Sen. Muskie). Return to text.

[35] Congress was pursuing this strategy even before it enacted the CWA. Two years earlier, it authorized the Corps to build and operate "contained disposal facilities" as part of the River and Harbor Act of 1970, Pub. L. 91-611, 84 Stat. 1823 (codified as amended at 33 U.S.C. § 1293a. (1994 & Supp. II 1996)). Part of this section concerns agreements with state and local governments to acquire "lands" necessary for the facilities. Id. § 1293a(c). An early example of an alternative to open-water disposal of dredged spoil was a Corps project to build thirty diked disposal sites for harbors in the Great Lakes. See LEGISLATIVE HISTORY (1972), supra note 12, at 1386; see supra note 30 (response of Sen. Stennis). Return to text.

[36] Senator Muskie, the main proponent of the CWA, did not want to exempt the Corps from its prohibitions. He therefore opposed Senator Ellender's amendment but could not prevent it. "[T]here is no question that the Secretary of the Army should retain authority to permit dredging operations for the purpose of navigable water and channel maintenance. It is a mission-oriented agency, and this is its mission. . . . [B]ut, conversely, spoil disposal should be subject to EPA regulations." LEGISLATIVE HISTORY (1972), supra note 12, at 1388 (statement of Sen. Muskie in Senate debate). Return to text.

[37] See infra notes 45-48 and accompanying text. Return to text.

[38] Senator Muskie expressed this concern:

"[T]he Corps of Engineers . . . is not equipped to evaluate the environmental impact of these dredging activities. It is equipped to make judgments on what is needed for navigation . . . . [W]hat Section 401 would require is that [EPA evaluate] the pollution potential of the proposed dredge spoil and the environmental impact of disposing of dredge spoil in particular locations or sites . . . . If we eliminate those two checks by the only agency we have to evaluate environmental damage and make dredgers exempt [i.e., by enacting section 404 as proposed], as no one else is under this bill, from this kind of monitoring and supervision, it means releasing them from all control."

LEGISLATIVE HISTORY (1972), supra note 12, at 1388 (statement of Sen. Muskie in Senate debate). Senator Muskie offered his own amendment, subsection 402(m), as an alternative to section 404. This provision would have given the EPA authority to regulate disposal of dredged material in waters not under RHA jurisdiction, on the basis of certain environmental effects. Section 402(m) would have required the EPA to consider the effects of disposal of dredged material on municipal water supplies, on shellfish beds, on wildlife, and on fisheries. See id. at 1392-93. These effects are reflected in the terms of subsection 404(c), under which the EPA may veto a permit proposal which the Corps has approved. 33 U.S.C. § 1344(c) (1994 & Supp. II 1996). Return to text.

[39] 33 U.S.C. § 1344(a) . Return to text.

[40] See 33 C.F.R. §§ 320.1(a)(1), 320.4(a)(2)(i) (1998); see also O'Hagan, supra note 10, at 1075-76 (1991). For a critical analysis of the public review process, see Power, supra note 12, at 547-56. Return to text.

[41] See 33 C.F.R. § 320.4(a)(2)(iii) (1998). Return to text.

[42] See id. § 320.4(a)(2)(ii). Return to text.

[43] Except as section 404(b)(2) provides, no permit may issue for a discharge of dredged or fill material "if there is a practicable alternative . . . which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a) (1998). See Oliver Houck, Analysis of Alternatives Under Section 404 of the Clean Water Act and Similar Environmental Laws, 60 U. COLO. L. REV. 773, 774 (1989). Where the EPA's guidelines do not indicate that a permit for a disposal site should be granted, section 404(b)(2) authorizes the Corps to consider also the economic impact of its decision on navigation and anchorage. 33 U.S.C. § 1344 (b)(2). Return to text.

[44] See Bersani v. Robichaud, 850 F.2d 36, 38 (2d Cir. 1988) (upholding time-of-market-entry theory). Return to text.

[45] See 40 C.F.R. § 230.10(a) (1998), 33 C.F.R. § 320.4(b)(4) (1998). EPA first published its guidelines, in interim final form, at 40 Fed. Reg. 41,292 (1975). Return to text.

[46] See 33 U.S.C. § 1344(a). Return to text.

[47] See id. § 1344(b)(1). Return to text.

[48] Section 403(c) establishes the following criteria, stated here in general terms, for ocean discharges:

the effect of the disposal of pollutants on human health or welfare;

the effect of the disposal of pollutants on marine life;

the effect of the disposal of pollutants on esthetic, recreational, and economic values;

the persistence and permanence of the effects of the disposal of pollutants;

the effect of the disposal of pollutants at varying rates, volumes, and concentrations;

other possible locations and methods of disposal or recycling, including land-based alternatives;

the effect of the disposal of pollutants on alternate uses of the oceans.

Id. § 1343(c). Return to text.

[49] See U.S. Const. art. I, § 8, cl. 3. Return to text.

[50] The CWA prohibits the discharge of pollutants into "waters of the United States," unless with a permit. 33 U.S.C. §§ 1311(a), 1362(7) . Return to text.

[51] The Corps at first took the physical limits of its jurisdiction under section 404 to be much the same as those it observed under RHA section 10. See Gerald Torres, Wetlands and Agriculture: Environmental Regulation and the Limits of Private Property, 34 U. KAN. L. REV. 539, 550-51 (1986); see also Blumm & Zaleha, supra note 12, at 704 ("[T]he Corps resisted [broad jurisdiction] . . . . [T]o it, section 404 was simply an exemption from the new EPA permit system for its preexisting regulatory program."). Return to text.

[52] See United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir. 1974) (construing CWA jurisdiction, under Commerce Clause, to reach discharge of oil into stream not navigable by traditional tests); Leslie Salt v. Froehlke, 403 F. Supp. 1292 (N.D. Cal. 1974) (holding that Corps' CWA jurisdiction extended to salt evaporation ponds lying above reach of tide as usually measured, but below line which Corps used as measure on Pacific coast), modified and rev'd in other part, 578 F.2d 742 (9th Cir. 1978); United States v. Holland, 373 F. Supp. 665 (M.D. Fla. 1974) (holding that federal jurisdiction extended to filling in mangrove swamps above line of mean high tide);. Return to text.

[53] By tradition, this boundary has most often been the line of mean high tide. See Leslie Salt, 403 F. Supp. at 1294 (discussing methods of determining the line of high tide to establish the boundary of navigable waters). Return to text.

[54] The Corps kept its existing regulations despite significant decisions such as Holland and Ashland Oil. See Power, supra note 12, at 522. Extending jurisdiction above the level of the high tide line in order to protect wetlands makes it necessary to delineate the boundary between water and land by some other measure. It is more difficult to determine precisely the landward boundary of United States waters by using markers which tend not to change abruptly, for example soil or vegetation characteristics, than by using the traditional standard, the mean of nineteen years' measurements of the two daily high tide lines. Moreover, this delineation will often be made in flat land, where small differences in elevation correspond to large differences in the horizontal reach of water's edge. It is reasonable to assume that the Corps was not eager to burden itself with the regulatory difficulties which this new approach entailed. Return to text.

[55] National Resources Defense Council v. Callaway, 392 F. Supp. 685 (D.D.C. 1975). See Blumm & Zaleha, supra note 12, at 705 n.55. Return to text.

[56] See James T.B. Tripp, Public Inputting in the Permitting Process: The Section 404 Example, NAT. RESOURCES & ENV'T, Winter 1987, at 23. Return to text.

[57] See Blumm, supra note 24, at 412, 417; see Ablard & O'Neill, supra note 26, at 53-54. Return to text.

[58] United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). Return to text.

[59] The Court ruled that it was not unreasonable for the Corps to interpret section 404 to include wetlands "adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as 'waters'." Id. at 131-32 & n.8. Return to text.

[60] See, e.g., National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1401 (D.C. Cir. 1998). The Supreme Court upheld the validity of the Corps' regulation under the CWA, but only as it applies to a wetland "that actually abuts on a navigable waterway." Riverside Bayview Homes, 474 U.S. at 135. The Court also found that under the CWA, the term "navigable waters" encompasses "at least some waters that would not be deemed 'navi gable' under the classical understanding of that term." Id. at 133. Return to text.

[61] Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat. 1152. The significant provisions of the RHA are codified at 33 U.S.C. §§ 403, 404, 406-09, 411-15 (1994 & 1996 Supp. II). Return to text.

[62] "Congress enacted two separate statutory frameworks. Section 10 of the 1899 Act [RHA] covers the act of dredging, while Section 404 [of the CWA] covers the disposal of the dredged material." Ablard and O'Neill, supra note 26, at 93. Return to text.

[63] "Under section 10 . . . [the Corps] construes [navigable waters] to embrace dredge and fill activities within actually navigable waters, while under section 404 . . . it construes the term so as to regulate dredge and fill in waters that are not only navigable in fact, but may include freshwater wetlands." United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1158 (1st Cir. 1987); "The principal difference [between the two statutes] is that section 404 reaches only discharges while [RHA] section 10 applies to activities modifying channels without regard to whether there has been a discharge." WILLIAM RODGERS, ENVIRONMENTAL LAW § 4.6 (1986); see Ablard & O'Neill, supra note 26, at 93. See also Blumm, supra note 24, at 418. Return to text.

[64] See National Mining, 145 F.3d at 1404-05 & n.5 Return to text.

[65] Congress' chief reason for enacting the RHA was to aid navigation. 32 CONG. REC. 2297 (1899), cited in Hoyer, supra note 12, at 25 n.47; see id. at 25-26; see also Ablard and O'Neill, supra note 26, at 51, 55 n.20. Return to text.

[66] See 33 U.S.C. § 403 (1994 & Supp. II 1996). Return to text.

[67] See supra notes 28 and 31 and accompanying text. Return to text.

[68] See 33 U.S.C. § 407 ; see also Ablard & O'Neill, supra note 26, at 55-56. Return to text.

[69] See Hoyer, supra note 12, at 25-26; see, e.g., Miami Beach Jockey Club v. Dern, 86 F.2d 135, 136 (D.C. Cir. 1936) (requiring permit decision to be based "exclusively on evidence directed to the question whether, in light of present-day conditions with relation to commerce and navigation [the construction] will obstruct the navigable capacity of the waterway . . . ."). Return to text.

[70] The Fish and Wildlife Coordination Act, ch. 55, 48 Stat. 401 (1934), was extensively amended in 1958 and again in 1970. It is codified as amended at 16 U.S.C. §§ 661-666c. (1994 & Supp. II 1996). Return to text.

[71] The FWCA requires the Corps to consult with the United States Fish and Wildlife Service, the Department of Interior, and with applicable state agencies administering wildlife resources in the area of a proposed project. The purpose of this consultation is to conserve these resources and to provide for their improvement in the project's design. The Corps must engage in this consultation whenever a channel is to be deepened or a "[b]ody of water otherwise controlled or modified for any purpose whatever . . . by any department or agency of the United States, or by any public or private agency under Federal permit . . . ." 16 U.S.C. § 662 (1994 & Supp. II 1996). For a discussion of the FWCA requirements and their relation to section 404 permitting, see Lake Erie Alliance v. Corps of Engineers, 526 F. Supp. 1063, 1080-81 (W.D. Pa. 1981). Return to text.

[72] Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970) (holding that Congress' power to regulate interstate commerce included the power to assure a stable environment for fish and wildlife in estuaries), rev'g 296 F. Supp. 764 (M.D. Fla. 1969). Return to text.

[73] The Fifth Circuit held that the combined effect of NEPA, a 1958 amendment to the FWCA, and a 1970 House Committee report was to leave "no doubt that the Secretary [of the Army, acting through the Corps] can refuse on conservation grounds to grant a permit under the [RHA]." Zabel, 430 F.2d at 214. Return to text.

[74] See William L. Want, Federal Wetlands Law: The Cases and the Problems, 8 HARV. ENVT'L L. REV. 1, 13 (1984); Margaret N. Strand, Federal Wetlands Law: Part I, 23 ENVTL. L. REPTR. 10,185, 10,190 (1993). Return to text.

[75] See United States v. Standard Oil Co., 384 U.S. 224 (1966) (holding that section 13 reached discharge of 300 gallons of aviation gasoline as "refuse" which threatened navigation); Strand, supra note 74, at 10,190; United States v. Republic Steel Corp., 362 U.S. 482 (1960) (holding that accumulated discharge of industrial waste particles in fluid suspension, partially obstructing river channel, was not within § 13 exception for liquid sewerage). For a very thorough analysis of section 13 and the RHA generally, see Robert L. Potter, Comment, Discharging New Wine Into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 U. PITT. L. REV. 483 (1972). Return to text.

[76] See Exec. Order No. 11,574, 35 Fed. Reg. 19,627 (1970) (authorizing the Refuse Act Permit Program (RAPP)); see also 35 Fed. Reg. 20,005 (1970) (detailing RAPP). Return to text.

[77] See Kalur v. Resor, 335 F. Supp. 1, 9 (D.D.C. 1971) (invalidating the Refuse Act Permit Program as far as the Corps' authority to issue permits to discharge refuse into nonnavigable waterways which lead into navigable waters). Return to text.

[78] CWA section 402 transferred to the EPA the Corps' former authority under RHA section 13 to issue permits for discharges into navigable waters. See 33 U.S.C. § 1342(5) (1994 & Supp. II 1996). However, section 13 retains, at least potentially, a legal force independent of the CWA. See United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655 (1973) (holding that effectiveness of § 13's prohibition of discharges does not depend on a regulatory program involving permits); Ablard & O'Neill, supra note 26, at 56 n.29; see generally Kalur v. Resor, Comment, Water Quality, and NEPA's Application to EPA, 2 ENVTL L. REPTR. 10,025 (1972). Return to text.

[79] By suddenly placing thousands of industries in violation of the Refuse Act, the Kalur decision stimulated the replacement of the section 13 program with the CWA. See Power, supra note 12, at 512-13. Return to text.

[80] The Corps' 1986 regulations specifically exempted "de minimis, incidental soil movement occurring during normal dredging operations" from the permit requirement. 51 Fed. Reg. 41,206, 41,232 (1986). Although its 1977 regulations had not also made this specific exemption, see Part 323—Permits for Discharges of Dredged or Fill Materials Into Waters of the United States, 42 Fed. Reg. 37,144 (1977), the Corps' district offices generally observed it at that time. See Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008, 45,013 (1993) ("[This] practice [exemption of small-volume, incidental discharges] . . . was also viewed by many Corps districts as consistent with the thrust of guidance dating from the late 1970's regarding de minimis discharges associated with normal dredging activities."). The pertinent part of a "regulatory guidance letter" (RGL) from 1982, issued by the Corps to communicate its policy to district offices, also illustrates this policy: "[D]e minimis discharge occurring during normal dredging operations, such as the drippings from a dragline bucket, is not considered to be a § 404 discharge." Office of Corps of Engineers Regulatory Guidance Letter 81-4 (June 3, 1982), quoted in Reid. v. Marsh, 20 Envtl. Rep. Cas. (BNA) 1337, 1339 (N.D. Ohio 1984). Return to text.

[81] "Section 404 clearly directs the Corps to regulate the discharge of dredged material, not the dredging itself . . . ." Permits for Discharges, 51 Fed. Reg. at 41,210 (preamble to 1986 regulations). Return to text.

[82] "[D]redging operations cannot be performed without some fallback . . . ." Id. Return to text.

[83] "[H]owever, if we were to define . . . [incidental] fallback as a 'discharge of dredged material,' we would, in effect, be adding the regulation of dredging to section 404 . . . ." Id. Return to text.

[84] "[W]e do not believe [adding the regulation of dredging to section 404] was the intent of Congress." Id. Return to text.

[85] See Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008, 45,016 (1993). The total area of the development was about 1800 acres. See id. Return to text.

[86] See id. Return to text.

[87] The agencies pointed to their increased awareness of the damage caused by drainage of wetlands to explain why they had reversed their earlier position and now advocated effects-based regulation. See id. at 45,015. Return to text.

[88] See American Mining Congress v. United States Army Corps of Engi'gs, 951 F. Supp. 267 (D.D.C. 1997), in which the plaintiffs claimed that the Tulloch rule "(1) is inconsistent with the language and intent of the CWA; (2) is arbitrary, capricious, and otherwise not in accordance with law . . . because it exempts navigational dredging, which is generally done by the Corps, and exempts landclearing from a grandfather clause; (3) violates plaintiffs' due process rights under the Fifth Amendment to the Constitution because it (a) is vague, and (b) shifts to regulated parties the burden of showing that their activities are not covered; and (4) was promulgated in violation of the procedural requirements of the APA." Id. at 270 (citations omitted). In granting summary judgment for the plaintiffs, the District Court for the District of Columbia addressed only the first of these claims. See id. Return to text.

[89] See National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1403 (D.C. Cir. 1998). In their comments accompanying the Tulloch Rule, the agencies argued at length that the CWA authorized them to regulate redeposits on the basis of the effect of the activity producing them. Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008, 45,012 (1993) (emphasis added). For example, they stated that:

"EPA and the Corps do not believe that . . . [under the CWA] redeposition of dredged material is only regulated if it is "moved" from one "place" to another. Rather than focus simply on the spatial relationship between where the excavation and redeposition occur . . . [to determine] jurisdiction under Section 404, this rule will regulate an activity (involving a discharge to any part of waters of the U.S.) taking into account the effect of the activity on the aquatic environment."

Id. (emphasis added). Return to text.

[90] National Mining, 145 F.3d at 1403-04, also contains several secondary arguments, which are discussed briefly here. The appellants urged the court to review the Tulloch Rule under the very lenient standard of judicial review which a Supreme Court case construing a bail statute, United States v. Salerno, 481 U.S. 739 (1987), established for facial challenges to federal statutes. See National Mining, 145 F.3d at 1406. The court termed this a "last-ditch" argument, but then took pains to refute it. The court refused to accept that the facial nature of the challenge, by itself, required it to depart from the Chevron standard, or from its own precedents regarding administrative rulemaking. See id. at 1407-08. The court noted in passing that a facial challenge is sometimes improper, as when its success depends on an assumption that the agency will act in bad faith. See id. It said that the challenge here, however, was rather that the agencies exceeded their statutory authority by applying Tulloch faithfully. See id. at 1408.

The agencies also argued that Congress' exemption of minor deposits from certain activities in subsection 404(f) was evidence that it considered section 404 in general to cover incidental fallback. See id. at 1405; see also discussion infra Part III.B. for a description of subsection 404(f). In this argument, Congress' use of the phrase "discharge of dredged or fill material" to describe the consequences of activities listed in section 404(f)(1) showed that it believed incidental fallback to be a type of discharge. See id. at 1405. The National Mining court, however, was not persuaded by this reading of subsection 404(f). It said that Congress could just as easily have been addressing activities which produced actual discharges, and not merely incidental fallback. See id.

A final argument challenged the district court's issuance of a nationwide injunction setting aside the Tulloch Rule. The District of Columbia Circuit upheld the district court's use of this remedy, citing its own rule that "when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed." Id. at 1409 (citation omitted). The court also cited Justice Blackmun's dissenting opinion in Lujan v. National Wildlife Federation, 497 U.S. 871, 913 (1990), for a rule which it took to be the unanimous opinion of the Supreme Court justices on this question. This is that a broadly applicable administrative rule is invalid generally when a single plaintiff wins a claim that it has injured him. See id. at 1409. Return to text.

[91] The Corps defines "dredged material" as "material that is excavated or dredged from waters of the United States." 33 C.F.R. § 323.2(c) (1998). Return to text.

[92] See supra note 20. Return to text.

[93] In a recent Fourth Circuit case mentioned in National Mining, Judge Niemeyer also accepted that "[s]oil may be definitionally transformed, through the act of excavation, from a part of the wetland into "dredged spoil," a statutory pollutant . . . ." United States v. Wilson, 133 F.3d 251, 259 (4th Cir. 1997). Return to text.

[94] See National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1404 (1993). Return to text.

[95] See id. Return to text.

[96] See id. Return to text.

[97] Id. The court also noted that oral argument had revealed the "unreasonableness" of the agencies' statutory interpretation. For example, counsel for the agencies agreed that under their interpretation of section 404, the Corps could require a permit to ride a bicycle across a wetland, although the Tulloch Rule seemed to exempt that activity for the time being. See id. at n.4. (citations omitted). Return to text.

[98] See id. at 1404. Return to text.

[99] See id. at 1404-05. Return to text.

[100] This question has been important in other cases construing CWA provisions. See Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1296-99 (1st Cir. 1996) (holding that movement of pollutants between waters of different quality is an "addition" requiring a permit under section 402, although not necessarily true of such movement within the same water); United States v. Wilson, 133 F.3d 251, 259-60 (4th Cir. 1997) (opinion of Niemeyer, J.) (ruling that "addition" requires either introduction of new material from outside the area at issue, or increase in amount of material already there); National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 174-75 (D.C. Cir. 1982) (upholding EPA's interpretation that chemical and other changes in quality of water behind dam were not regulable under section 402, because not originating in the "outside world" and therefore not an "addition"); National Wildlife Fed'n v. Consumers' Power, 862 F.2d 580, 584-85 (6th Cir. 1988) (holding that transfer of fish parts to and from Lake Michigan by passage through dam turbines was not an "addition" covered by section 402 of the CWA because material came from the water itself); but see Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir. 1983) (finding that an "addition," as included in the definition of "discharge," can be a redeposit and need not come from an outside source); accord, Rybachek v. EPA, 904 F.2d 1276, 1285 (9th Cir. 1990); accord, Wilson, 133 F.3d at 272-74 (Luttig, J., concurring in judgment but arguing that sidecasting is regulable as an "addition"). Return to text.

[101] National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1405 (D.C. Cir. 1998). Return to text.

[102] See 33 C.F.R. § 323.2(c) (1998). Return to text.

[103] See cases cited supra note 100. Return to text.

[104] Recalling that this was not a new observation, the court quoted from Avoyelles: "'Dredged' material is by definition material that comes from the water itself. A requirement that all pollutants must come from outside sources would effectively remove the dredge-and-fill provision from the statute." National Mining, 145 F.3d at 1405 (citation omitted). Return to text.

[105] See id. Return to text.

[106] See id. Return to text.

[107] Id. Return to text.

[108] Id. Return to text.

[109] See Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984). Under the Chevron test, a court first decides whether "Congress has directly addressed the precise question at issue." (Step I) ERNEST GELLHORN & RONALD M. LEVIN, ADMINISTRATIVE LAW AND PROCESS IN A NUTSHELL 81, 89 (1997). If so, the court must "give effect to the unambiguously expressed intent of Congress." See id. If, however, it decides the statute in question was "silent or ambiguous with respect to the specific issue," the court must then determine if the agency made a "reasonable interpretation" of the statute. (Step II) See id. It should be noted that Chevron doctrine is both less absolute and more complicated than this formula, standing alone, might suggest. See id. Return to text.

[110] Courts must decide if an agency's interpretation of a statute was "permissible," or as Chevron alternatively phrased it, "reasonable." Courts have often conducted the Step II analysis much as they approach the question of "reasoned decisionmaking" in deciding whether an agency action is "arbitrary and capricious." GELLHORN & LEVIN, supra note 109, at 81, 86. Return to text.

[111] See National Mining Ass'n, 145 F.3d at 1410. Return to text.

[112] See id. Return to text.

[113] See id. Return to text.

[114] 33 U.S.C. § 1344(a) (1994 & Supp. II 1996). Subsections 1344(b) and(c) also address the specification of disposal sites. Return to text.

[115] See National Mining, 145 F.3d at 1410. Return to text.

[116] See id. at 1406. Return to text.

[117] See id. at 1403-04, 1410. Return to text.

[118] See id., at 1410; see supra note 20. Return to text.

[119] Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983). Return to text.

[120] Id. at 923; the court in Avoyelles limited its statement that redeposits may be considered additions to redeposits of dredged material. See id. Return to text.

[121] See National Mining, 145 F.3d at 1406. "[T]he activities in this case did not involve a "de minimis" disturbance; hence we have no reason to determine whether "de minimis" disturbances are exempted from the act." Avoyelles, 715 F.2d at 923. Return to text.

[122] See Avoyelles, 715 F.2d at 920-23. Return to text.

[123] "The term fill material means any material used for the primary purpose of replacing an aquatic area of dry land or of changing the bottom elevation of a waterbody. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under section 402 of the [CWA]." 33 C.F.R. § 323.2(e) (1998) (emphasis in original). Return to text.

[124] "[W]e do not believe that a decision whether there was a discharge of dredged material was necessary here, since we have concluded that there was a discharge of fill material." Avoyelles, 715 F.2d at 924. As one author has observed, "Thus, under Avoyelles, the CWA regulates activities in wetlands based on what is put into the wetlands, not what is taken out." Strand, supra note 74, at 10,218. Return to text.

[125] United States v. M.C.C. of Fla, 772 F.2d 1501 (11th Cir. 1985). Return to text.

[126] See National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1406 (D.C. Cir. 1998). Return to text.

[127] See M.C.C., 772 F.2d at 1506. Return to text.

[128] The agencies have stated that sidecasting has "always been regulated under Section 404." Clean Water Act Regulatory Programs, 58 Fed Reg. 45,008, 45,013 (1993). However, this question is unsettled. In United States. v. Wilson, 133 F.3d 251 (4th Cir. 1997), a three-judge panel of the Fourth Circuit divided on the question whether sidecasting is an "addition" under the CWA. See Wilson, 133 F.3d at 258-60 (opinion of Niemeyer, J); see id. at 272-75 (opinion of Payne, J.). Judge Luttig joined neither opinion. Return to text.

[129] See Wilson, 133 F.3d at 257, 259. Return to text.

[130] Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990). Return to text.

[131] See National Mining, 145 F.3d at 1406. Return to text.

[132] See Rybachek, 904 F.2d at 1285. Return to text.

[133] See National Mining Ass'n, 145 F.3d at 1406. Return to text.

[134] See id.; Rybachek, 904 F.2d at 1285. Return to text.

[135] The Tulloch Rule reached incidental fallback by redefining the phrase "discharge of dredged material" to include "any addition, including any redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation." 33 C.F.R. § 323.2(d)(1)(iii) (1998). Return to text.

[136] The agencies stated that:

"[W]e do not view [a de minimis] exception as compelled by the [CWA]. [N]onetheless, the agencies believe that the better approach in this case is to maintain a narrow exception for those activities that have only a de minimis effect on waters of the U.S. This . . . will help improve the efficiency and effectiveness of the program by focusing limited agency resources on activities having more than inconsequential environmental effects."

Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008, 45,022 (1993). This statement, which offered the conventional justification for de minimis exemptions, may have been making a virtue of necessity. A Supreme Court ruling, made the year before the agencies published the Tulloch Rule, casts doubt on their authority to read this exemption out of the CWA. See Wisconsin Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992). Evaluating the elimination of a de minimis exemption as a material issue in a tax case, the Court ruled that:

"[T]he venerable maxim de minimis non curat lex (the law cares not for trifles) is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept . . . . [I]t would be especially unreasonable to abandon normal application of the de minimis principle where [a statutory provision] operates in . . . stark, all-or-nothing fashion . . . ."

Id. Return to text.

[137] See Regulatory Programs, 58 Fed. Reg. 45,008, 45,017 (1993). Return to text.

[138] "[I]t is virtually impossible to conduct mechanized landclearing, ditching, channelization, or excavation in waters of the United States without causing incidental redeposition of dredged material (however small or temporary) in the process." Id. Return to text.

[139] See id. Return to text.

[140] "[M]ost corps districts normally followed the practice of not regulating such activities so long as their discharges of dredged material were limited to small-volume, "incidental" discharges. Regulatory Programs, 58 Fed. Reg. at 45,013 (preamble to Tulloch Rule) (emphasis added). Return to text.

[141] The exemption applied to "any incidental addition, including redeposit, of dredged material associated with any activity that does not have or would not have the effect of destroying or degrading an area of waters of the United States." 33 C.F.R. § 323.2(d)(3)(i) (1998). Return to text.

[142] "[A]n activity associated with a discharge of dredged material degrades [a U.S. water] if it has more than a de minimis (i.e., inconsequential) effect on the area by causing an identifiable individual or cumulative adverse effect on any aquatic function." 33 C.F.R. § 323.2(d)(5) . Return to text.

[143] Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008, 45,020 (1993). Return to text.

[144] 33 C.F.R. § 323.2(d)(3)(i)(1998). Return to text.

[145] "There has been widespread concern that many activities that are normally considered routine would be prohibited or made extremely difficult because of the complex regulatory procedures." LEGISLATIVE HISTORY (1977), supra note 34, at 897 (statement of Sen. Randolph, explaining purpose of section 404(f)(1) exemptions); see Power, supra note 12, at 504. Return to text.

[146] "New subsection (f) of section 404 provides that Federal permits will not be required for narrowly defined activities specifically identified in paragraphs (A)-(F) that cause little or no adverse effects either individually or cumulatively. To assure that the extent of these exempted activities will not be misconstrued, paragraphs (f)(1)(D) and (E) and (f)(2) provide common sense limitations to protect the chemical, biological, and physical integrity of the Nation's waters." LEGISLATIVE HISTORY (1977), supra note 34, at 420 (statement of Rep. Harsha). Return to text.

[147] "The drainages exemption is intended to put to rest, once and for all, the fears that permits are required for draining poorly drained farm or forest land of which millions of acres exist . . . ." Id. at 1042 (statement of Sen. Muskie); "[W]e are reluctant to draw any inference other than that Congress emphatically did not want to impede these bucolic pursuits." National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1405 (D.C. Cir. 1998); "Congress enacted in the 1977 amendments a delicate balance of exceptions that pro tected wetlands while permitting routine activities to go on unimpeded." United States v. Huebner, 752 F.2d 1235, 1241 (7th Cir. 1985). Return to text.

[148] Section 404(f)(1) exempts, for example, discharges from normal plowing and harvesting, as well as discharges caused by maintaining drainage ditches, repairing levees, or digging stock ponds and sedimentation basins. 33 U.S.C. § 1344(f)(1) (1994 & Supp. II 1996). Section 404(f)(1) exempts these discharges from the CWA's general prohibition, subject to two conditions. First, they must not violate the provisions of § 404(f)(2). See id. Second, they must not violate section 307 of the CWA , which prohibits toxic discharges. See id. Return to text.

[149] Section 404 (f)(2) provides, in pertinent part, that:

"Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section."

33 U.S.C. § 1344(f)(2) . Return to text.

[150] See, e.g., United States v. Akers, 785 F.2d 814 (9th Cir. 1986) (interpreting section 404(f)(2) to reach continuing agriculture previously exempt under section 404(f)(1), because expansion through diking changed wetland hydrology); Huebner, 752 F.2d 1235 (holding that section 404(f)(2) "recaptured" digging in irrigation channels for purpose of restoring land used as cranberry bogs, before section 404(f) took effect, to that use). Return to text.

[151] See James T.B. Tripp & Michael Herz, Wetland Preservation and Restoration: Changing Federal Priorities, 7 VA. J. NAT. RESOURCES L. 221, 236-45 (1988); Kevin O'Hagan, Comment, Pumping With the Intent to Kill: Evading Wetlands Jurisdiction Under Section 404 of the Clean Water Act Through Draining, 40 DE PAUL L. REV. 1059 (1991). Return to text.

[152] See, e.g., Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 925 n.44, 926 (5th Cir. 1983) ("[R]ead together, the two parts of section 404(f) provide a narrow exception for agricultural and silvicultural activities that have little or no adverse effect on the nation's waters."); Strand, supra note 74, at 10,226. Return to text.

[153] "The recapture principle should not be restricted to discharges that are exempted by section 404(f)(1). Any discharge that the Corps deems exempt on the ground that it is de minimis should be subject to permit requirements if the discharge is related to a change in water use pursuant to section 404(f)(2)." Tripp & Herz, supra note 151, at 238. Return to text.

[154] "If section 404(f)(2) is to be narrowly read to apply only to section 404(f)(1) exemptions, then the Corps' power to exempt discharges should also be limited to those enumerated in that provision. Conversely, if the Corps' power to exempt de minimis discharges extends beyond section 404(f)(1), the recapture mechanism of section 404(f)(2) should also be interpreted to extend beyond section 404(f)(1) to other discharges." Id. at 239. Return to text.

[155] The agencies adopted this broader view of section 404's authority for effects-based regulation: "[W]e believe that Section 404(f)(2) contradicts the argument that Congress intended to preclude EPA and the Corps from considering under Section 404 the effects of activities associated with discharges of dredged and fill material, such as mechanized landclearing, ditching, channelization, and other excavation." Clean Water Act Regulatory Programs, 58 Fed. Reg. 45,008, 45,012 (1993) (preamble to Tulloch Rule). Return to text.

[156] The Seventh Circuit ruled in United States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir. 1985) that Congress intended section 404(f)(1) to create only a narrow exemption to section 404's general permit requirement. The Fifth Circuit also interpreted subsection 404(f) narrowly in Save Our Community v. United States EPA, 971 F.2d 1155, 1165 & n.15 (5th Cir. 1992). In that case, the appellate court sharply criticized the district court's reading of section 404(f)(2), in the same case, to authorize effects-based regulation of a matter outside the scope of section 404(f)(1). See id. at 1240-41. The Fifth Circuit said that the district court had misread its decisions in Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir. 1983) and Orleans Audubon Society v. Lee, 742 F.2d 901 (5th Cir. 1984), in both of which it had construed subsection 404(f) narrowly. See id. Return to text.

[157] See ENV'T REP. (BNA, Inc.), Oct. 16, 1998, at 1212 (no title). Return to text.

[158] See EPA Loss on Wetlands Excavation May Fuel Water Act Reauthorization, INSIDE EPA, Oct. 9, 1998, at 18 [hereinafter EPA Loss]. Return to text.

[159] For example, the agencies urged the court to judge the Tulloch Rule's validity under the deferential standard of review that the Supreme Court has established for facial challenges to federal statutes. See National Mining, Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1407-08 (D.C. Cir. 1998). The court noted that the Supreme Court had never required a person challenging the facial validity of an administrative regulation to establish that it could not be valid under any set of circumstances. See id. Moreover, the court observed that the Supreme Court had at least once, in Sullivan v. Zebley, 493 U.S. 521 (1990), upheld a facial challenge to an administrative regulation despite its obvious validity under some circumstances. See id. Return to text.

[160] See Reid. v. Marsh, 20 Envtl. Rep. Cas. (BNA) 1337 (N.D. Ohio 1984). Return to text.

[161] "[Section 404] does not give the Corps authority to regulate . . . the dredging [itself]. Such activities may be governed only by § 10 of the Rivers and Harbors Appropriations Act. Rather, § 404 gives the Corps power to regulate the dredging work only to the extent that it constitutes a 'discharge of dredged material.' Therefore, in processing an application for the channelization project the Corps should evaluate only the effect of discharge resulting from the dredging activities and not the ultimate effect of proposed channel modification." Id. at 1342. (emphasis added). Return to text.

[162] See National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399, 1405 (D.C. Cir. 1998). Return to text.

[163] See supra notes 28-35 and accompanying text. Return to text.

[164] See EPA Loss, supra note 158, at 18. Return to text.

III. THE HOLDING IN NATIONAL MINING
A. Incidental Fallback and the "Addition" Problem
B. Incidental Fallback in Case Law
IV. HOW THE TULLOCH RULE DEVELOPED
A. The de Minimis Exemption of Incidental Fallback
B. The Section 404 "Recapture Clause" and Regulation by Effect
V. CONCLUSION