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A federal court has considered whether the United States Army Corps of Engineers (“Corps”) and the Environmental Protection Agency (“EPA”) exceeded their authority in their revisions to their rules regulating the discharge of dredge or fill material into the “waters of the United States”, pursuant to the Clean Water Act (“Act”).
The Act prohibits the “discharge of any pollutant” into the “waters of the United States” unless a permit is obtained. The Act authorizes the Corps to issue these permits, and so the Corps and the EPA created rules establishing when a permit from the Corps was required. From 1986-1993, the Corps defined dredged material as “as any addition of dredged material into the waters of the United States”, but there was a de minimis exception in the rules for incidental discharges that occurred during normal dredging operations.
1n 1993, the Corps eliminated the de minimis exception and so a permit was required for any discharge into the “waters of the United States”. This revised rule was challenged and invalidated by a court, with the court holding that the Corps had exceeded their authority in revising the rules because regulating “incidental fallback” is outside of their regulatory power.
In 2000, the Corps and EPA again revised their rules with a provision now stating that there was presumption that any dredging operation would create discharge, and those doing the dredging would either have to rebut this presumption through project-specific evidence showing that the dredging only produced “incidental” fallback or they would need to obtain a discharge permit. The revised rules claimed that this presumption “did not shift any burden in any administrative or judicial proceeding”.
In 2001, the National Association of Home Builders and others (collectively, “Challengers”) filed a lawsuit challenging the revised rules as again exceeding the authority granted to the Corps in the Act. Initially, the trial court dismissed the case on procedural grounds, but the appellate reversed the court and sent the case back to the trial court. Both parties filed motions with the court seeking judgment in their favor.
The United States District Court for the District of Columbia determined that the Corp and EPA’s revised rule remained invalid and so ruled in favor of the Challengers. The rules failed to make a distinction between “fallback” and “redeposit” because they did not set forth parameters on how long the material could be held aloft before returning to the ground or set forth the distance that the material could be moved during the dredging. By failing to make these distinctions, the rules were vague because it was unclear when material removed during dredging but then returned to the waters became an addition requiring a permit from the Corps. Since the Corps and the EPA failed to draft a rule which clearly defined the difference between redeposit and fallback, the court declared the revised rules invalid.
Nat’l Ass’n of Home Builders v. U.S. Army Corps of Engineers, No. 01-0274, 2007 WL 259944 (D.D.C. Jan. 30, 2007). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].