U.S. Army Corps of Engineers “incidental fallback” regulation invalidated (again)

January 30, 2007 | Roger McEowen

 

The federal Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) regulate “wetlands” under the Clean Water Act. The CWA prohibits the “discharge of any pollutant” into regulable waters without a federal permit. The CWA defines “discharge” as the “addition of any pollutant to navigable waters from a point source.”  In the early 1990s, the EPA and the Corps issued a joint regulation requiring permits for wetland excavation activities that resulted in “incidental fallback” of dredged materials, including a mere redeposit (which is not an “addition of a pollutant”) of dredged material. The regulation was invalidated by the Federal District Court for the District of Columbia in 1997 and that decision was affirmed by the U.S. Circuit Court of Appeals for the D.C. Circuit in 1998. In 2000, the Corps issued a new regulation stating that a regulable discharge of dredged material was presumed to result from mechanized landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in regulable waters. The presumption could be overcome by the party proposing the activity demonstrates that only incidental fallback would result from its activity. The regulation went on to define “incidental fallback” (which is exempt from the permit requirement) as the redeposit of small volumes of dredged material. The same trial court has now invalidated the new regulation for continuing to define “incidental fallback” in terms of volume rather than in terms of being an “addition of a pollutant” to a regulable water. The court termed the Corps’ regulation as reflecting a “degree of official recalcitrance that is unworthy of the Corps.”  National Association of Home Builders, et al. v. U.S. Army Corps of Engineers, et al., No. 01-0274 (JR), 2007 U.S. Dist. LEXIS 6366 (D. D.C. Jan. 30, 2007).