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 covered.
    • 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 well.
  • 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 permits.
    • Problem solved!