Additions and Discharges

• Author: Stephen M. Johnson
• Pages: 152-218

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Chapter 5

Additions and Discharges

I. Regulated Activities

As noted in the previous Chapter, Section 301 of the Clean W ater Act regulates the

“discharge” of pollutants, which the statute defines to mean “addition” of a pollutant to

navigable waters from a point source. 33 U.S.C. § 1362(12). Section 404 of the Act

authorizes the Corps of Engineers to issue permits for the “discharge of dredged or fill

material into the navigable waters at specified disposal sites.” As a result, whether an

activity in wetlands or regulated waters is regulated under the Clean Water Act frequently

depends on whether it involves the addition of pollutants and on whether it involves the

discharge of dredged or fill material.

The terms “addition,” “dredged material,” “fill material,” and “discharge of dredged or fill

material” are not defined in the Clean Water Act, but the Corps and EPA have defined most

of them by regulation. The Corps first adopted regulations defining many of those terms in

1977. See 42 Fed. Reg. 37,121 (July 19, 1977). In those regulations, the agency defined

dredged material and fill material as follows:

Id. While the definition of “dredged material” was simply tied to the nature of the material,

the definition of “fill material” was tied to the purpose for which the material was being

used. The regulations also included a definition of “discharge of dredged material”

(“addition of dredged material into the waters of the United States”) and a definition of

“discharge of fill material” (“addition of fill material into the waters of the United States”), but

 Dredged material: material that is excavated or dredged from the waters

of the United States

 Fill material: any material used for the primary purpose of replacing an

aquatic area with dry land or of changing the bottom elevation of a waterbody.

The term does not include any pollutant discharged into the water primarily to

dispose of waste, as that activity is regulated under Section 402 * * *

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neither was particularly illuminating. Id. The regulations did not define “addition.”

The regulations that EPA adopted in 1980 included a similar definition of “dredged

material,” but they defined “fill material” as: “any ‘pollutant’ which replaces portions of the

‘waters of the United States’ with dry land or which changes the bottom elevation of a water

body for any purpose.” See 45 Fed. Reg. 33290, 33421 (May 19, 1980). Thus, the EPA

definition of “fill material” was not tied to the purpose for which a material was used, but

rather the effect of the use of the material. For many years, the EPA and Corps regulatory

definitions of “fill material” diverged in that manner.

Since 2002, however, the Corps and EPA have defined the terms “dredged material” and

“fill material” consistently in their regulations. The current regulatory definitions of the terms

are:

33 C.F.R. § 323.2 (Corps’ regulations); 40 C.F.R. § 232.2 (EPA’s regulations). Both

agencies also include a non-exclusive list of materials that constitute “fill material” within

their definition of the term. The list includes “rock, sand, soil, clay, plastics, construction

debris, wood chips, overburden from mining or other excavation activities, and materials

used to create any structure or infrastructure in the waters of the United States.” Id.

The evolution of the definitions of “dredged material,” “fill material,” “discharge of dredged

material,” and “discharge of fill material” are discussed at length in the sections that follow.

However, neither agency has defined “addition” by regulation.

 Dredged material: material that is excavated or dredged from waters of

the United States.

 Fill material: material placed in waters of the United States where the

material has the effect of: (i) Replacing any portion of a water of the United

States with dry land; or (ii) Changing the bottom elevation of any portion of a

water of the United States. * * *

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Hypothetical

Ellen Marshall is an attorney who specializes in real estate development and she represents

Stewart Griffith, a shopping mall developer. While meeting with Griffith last week to review a

contract to purchase property in Wilmington, Delaware, she learned that Griffith had instructed

some of the contractors who were building a mall for him on property near Dover, Delaware to

fill in an acre of coastal wetlands without seeking a permit from the Corps of Engineers. Griffith

told Marshall that the contractors had found several Black Rail nests in the wetlands. Since

Black Rails are an endangered bird, Griffith was sure that the Corps of Engineers would never

issue him a permit for the development if he applied for one, so he thought it would be best to

fill in the wetlands and hope no one found out about it. Marshall encouraged Griffith to tell the

Corps about his actions and to apply for an after the fact permit, but he refused and told her

that he would take his chances, because he didn’t think anyone other than the contractors

knew that the wetlands had been filled. Marshall believes that Griffith will be subject to much

more stringent penalties if the Corps discovers the violation independently than if Griffith

reports the violation to the Corps. Marshall is also concerned because there are only a few

Black Rails left in Delaware and Griffith’s action destroyed vital habitat for the birds. If Griffith

reports the violation and creates, restores or enhances wetlands in the vicinity of the mall

development in Dover, the birds have a better chance for survival.

Can Marshall notify the Corps about Griffith’s illegal filling activities if Griffin does not want to

report the violation? See American Bar Association, Model Rule of Professional Conduct 1.6

(and associated comments). Would your answer be different if the filling significantly increased

the likelihood that a hospice near the mall in Dover would be flooded in the event of a hurricane

or major tropical storm in the region?