Clean Water Act – Section 404
The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) regulate the discharge of dredged or fill material into waters of the United States (including wetlands) under Section 404 of the Clean Water Act (CWA). Historically, the Corps exempted "de minimis" discharges or minor soil movements, such as "incidental fallback" resulting from normal dredging or other activities. To settle a lawsuit brought by environmental organizations, the agencies promulgated a new rule in 1993 which redefined the term "discharge of dredged or fill material" to include any addition, and even any redeposit, including "incidental fallback". The 1993 “Tulloch rule” explicitly expanded permit requirements to excavation and similar activities that focused on the removal of materials and not just the addition of materials to waters of the U.S. Examples of "incidental fallback" include spillage of material from excavation and dredging equipment.
As soon as the Tulloch rule was promulgated, the American Mining Congress (now the National Mining Association), the National Aggregates Association (now NSSGA) and others challenged the rule in court as illegally expanding permit requirements beyond the authority provided for in the CWA. On January 23, 1997, the Federal District Court for the District of Columbia ruled "that the Tulloch rule exceeds the scope of the agencies' statutory authority and, accordingly, declares it invalid and sets it aside."
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