National Mining Association v. U.S. Army Corps of Engineers 145 F.3d 1399 (D.C. Cir. 1998)
The Clean Water Act §301(a) flatly declared that,
"the discharge of any pollutants by any person shall be
unlawful" (except with a permit from the US Army Corps of Engineers).
Clean Water Act §502(12) defines "discharge of
a pollutant" to include "the addition of any pollutant to
navigable waters from any point source."
Pursuant to a court ruling in North Carolina Wildlife
Federation v. Tulloch, the US Army Corps of Engineers (USACE) changed
their definition of "discharge" to cover "any addition of
dredged material, including any redeposit of dredged material, into the
waters of the United States."
That means that if you dredge a river, and throw the muck
you just pulled up back into the same river, you need a permit!
The muck is known as 'fallback'.
This rulemaking change gave USACE the authority to
control virtually all excavation and dredging performed in wetlands.
The National Mining Association (NMA) sued, claiming that
USACE exceeded their authority under the Clean Water Act.
The Trial Court found for the NMA, USACE appealed.
USACE argued that dredged material was a pollutant
discharge and therefore covered under the Clean Water Act.
NMA argued that the important word in §502(12) was
'addition', and that they were not adding anything to the water, so they
were not covered under the Clean Water Act.
The Appellate Court affirmed.
The Appellate Court agreed with NMA that the term
'addition' could not be said to encompass material which is removed from
the same water it is dumped back into. Therefore, it is not a discharge
and not covered under the Clean Water Act.
The Appellate Court noted that some dredged materials
could theoretically be considered additions, but that USACE would have to
develop criteria for what should and should not be covered, they couldn't
make a blanket ruling that all dredged materials should be
The Appellate Court noted that the Rivers and Harbors
Act already covered dredging, so Congress probably didn't intend for
the Clean Water Act to completely cover dredging activities as
After this ruling, developers went to their wetlands,
dredged big channels down the middle of them, and let the entire wetland
drain into the channel, thereby turning acres and acres of wetland into a
river and dry land suitable for building houses on without requiring any