CHAPTER 2 NEW DEVELOPMENTS IN THE DEFINITION OF DISCHARGE AND FILL MATERIAL
| Jurisdiction | United States |
(Jan 2002)
NEW DEVELOPMENTS IN THE DEFINITION OF DISCHARGE AND FILL MATERIAL
Trout, Witwer & Freeman, P.C.
Denver, Colorado
I. DEFINITION OF DISCHARGE OF DREDGED MATERIAL
A. Code of Federal Regulations
1. 33 C.F.R. § 323.2(d)(2)(i) (Corps of Engineers). The Corps and EPA regard the use of mechanized earth-moving equipment to conduct land clearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredge material unless project-specific evidence shows that the activity results in only incidental fallback.
a. This paragraph (i) does not and is not intended to shift any burden in any administrative or judicial proceeding under the CWA.
b. Incidental fallback is the redeposit of small volumes of dredge material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed.
2. 40 C.F.R. § 232.2 (EPA)
[Same definitional modifications]
B. Federal Register Notices
1. 65 Fed. Reg. 50107, August 16, 2000: Proposed Rule on Definition of "Discharge of Dredged Material"
2. 66 Fed. Reg. 4549, January 17, 2001: Final Rule on Regulatory Definition of Discharge of Dredged Material
a. Initial "Tulloch Rule" issued at 58 Fed. Reg. 45008, August 25, 1993 and defines "discharge of dredged material" as "any addition, including any redeposit, of dredged material, including excavated material, into waters of the U.S. which is incidental to any activity, including mechanized land clearing, ditching, channelization, or other excavation that destroys or degrades waters of the U.S."
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b. Original rule found to exceed authority of agencies under CWA in American Mining Congress and National Mining Association decisions. (See below).
c. On May 10, 1999, definition modified in response to court decisions at 64 Fed. Reg. 25120 with indication that a determination of whether a particular redeposit of dredged material required a section 404 permit would be done on a "case-by-case" basis.
d. The NMA court noted that the CWA "sets out no bright line between incidental fallback on the one hand and regulable redeposits on the other" and that "a reasoned attempt to draw such a line would merit considerable deference." 145 F.3d at 1405.
e. District court subsequently finds that May 10, 1999 rulemaking is not inconsistent with the court's decision (American Mining Congress v. U.S. Army Corps of Engineers, C.A. 931754 SSH (D.D.C. Sept. 13, 2000).
f. "Like the proposal, today's rule modifies our definition of'discharge of dredged material' in order to clarify what types of activities we believe are likely to result in regulable discharges. As described in the preamble to the proposed rule (65 FR 50111-50113), based on the nature of the equipment, we believe that the use of mechanized earth moving equipment to conduct land clearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the U.S. is likely to result in regulable discharges of dredged material."
g. "However, in response to comments we received expressing concern that the proposal would result in a shift of the burden of proof and impose undue burdens on project proponents to 'prove a negative,' we have made a number of changes to clarify that this is not our intent and will not be a result of this rule. Because these concerns primarily appeared to arise out of the new proposed rules use of a rebuttable presumption formulation, we have redrafted the rule language to limit the use of a rebuttable presumption.... The rule now provides that the agencies regard the use of mechanized earth-moving equipment to conduct land clearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the U.S. as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback."
h. In determining if a regulable discharge of dredged material occurs, we will carefully evaluate whether there has been movement of dredged material away from the place of initial removal. In doing so, we will look to see if earth-moving equipment pushes or relocates dredged material beyond the place of excavation, as well as whether material is beyond the place of initial removal in such volume as to
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constitute other than incidental fallback...
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