The Tulloch rule defines the term "discharge of dredged material" to include incidental fallback. 33 C.F.R. § 323.2(d)(1)(iii) and 40 C.F.R. § 232.2(1)(iii). The agencies contend that the authority to regulate incidental fallback is included in their § 301(a) authority to regulate all discharges of pollutants. Plaintiffs contend that the term "addition of a pollutant" does not include incidental fallback. Thus, the issue in this case is whether the incidental fallback that accompanies landclearing and excavation activities is (1) the discharge of dredged material, i.e., the addition of a pollutant, (2) at specified disposal sites.
1. Incidental Fallback Is Not the "Addition of a Pollutant"
Plaintiffs contend that by defining a "discharge" to mean an "addition," Congress intended to regulate only the introduction or placement of dredged material into water, and not the incidental fallback that accompanies the removal of material from waters. Defendants contend that they can regulate incidental fallback under § 301 but, prior to the Tulloch rule, simply chose not to exercise that authority under the de minimis doctrine. The Court concludes that neither § 301 nor § 404 covers incidental fallback.
The agencies argue that the term "addition of pollutants" is ambiguous and therefore that the Court should defer to the agencies' interpretation of that term to include incidental fallback. The agencies cite to a line of cases holding that "additions" can include "redeposits" of dredged material from the same general area.
See Def.'s Mem. of P. & A. in Support of its Mot. for Summ. J. at 27-30. None of these cases, however, addresses the issue here, i.e., whether incidental fallback from excavation activities constitutes a discharge.
Defendants contend that these cases are still relevant because those courts deferred to the agencies' interpretation of "addition of a pollutant."
In Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983), the court found that reading "addition" to include "redeposit" was consistent with the purposes and legislative history of the Act. 715 F.2d at 923. Thus, any deference by that court was predicated on the court's holding that that reading was consistent with Congress' intent. In contrast, because this Court holds that Congress did not consider incidental fallback as the addition of a pollutant, deference would not be appropriate.
The Court bases on several grounds its holding that Congress did not intend to cover incidental fallback under § 404. First, § 404 refers to "discharges" but does not refer to the regulation of excavation or dredging activities; the fact that Congress has specifically referred to excavation activities elsewhere is evidence that Congress did not intend to regulate these activities under § 404. In § 10 of the Rivers and Harbors Appropriation Act of 1899, Congress made it unlawful "to excavate or fill" any point or harbor without Corps authorization.
33 U.S.C. § 403. "'Where a statute with respect to one subject contains a given provision, the omission of such a provision from a similar statute is significant to show a different intention existed.'" Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977) (citation omitted); see also Moore v. Sun Bank of North Florida, 923 F.2d 1423, 1428, (11th Cir. 1991), reh'g granted and opinion vacated, 953 F.2d 1274 (11th Cir. 1992), opinion reinstated, 963 F.2d 1448 (11th Cir. 1992). Had Congress intended to regulate excavation activities under § 404, it would have done so expressly.
Second, although Congress did not specifically mention incidental fallback in 1972 or 1977, there are statements that indicate that Congress thought that "discharge" had a very definite meaning. Specifically, Congress understood "discharge of dredged material" to mean open water disposal of material removed during the digging or deepening of navigable waterways. See, e.g., S. Rep. No. 1236, 92d Cong., 2d Sess. 141-42 (1972) (Report of the Conference Committee), reprinted in A Legislative History of the Clean Water Act of 1972 (hereinafter "1972 Leg. Hist.") at 324-25; Senate Consideration of the Report of the Conference Committee, 92d Cong., reprinted in 1972 Leg. Hist. at 177-78; H.R. Rep. No. 911, 92d Cong., 2d Sess. 129-30, reprinted in 1972 Leg. Hist. at 816-17; Senate Debate on S. 2770, reprinted in 1972 Leg. Hist. at 1386-90 (colloquy between Senators Ellender, Muskie, and Stennis) (Sen. Stennis observed that "dredge material . . . has a very definite meaning"). The 1977 Senate Report confirmed that "Congress intended that section 404 in the 1972 act would in its initial implementation end the open water disposal of dredge spoil." S. Rep. No. 370, 95th Cong., 1st Sess. 68 (1977), reprinted in A Legislative History of the Clean Water Act of 1977 (hereinafter "1977 Leg. Hist.") at 701.
This understanding of "discharge" excludes the small-volume incidental discharge that accompanies excavation and landclearing activities. Senator Muskie explained that "the bill tries to free from the threat of regulation those kinds of manmade activities which are sufficiently de minimis as to merit general attention at the State and local level and little or no attention at the national level." Senate Report on S. 1952, 95th Cong., reprinted in 1977 Legis. Hist. at 645. Senator Domenici stated that "we never intended under section 404 that the Corps of Engineers be involved in the daily lives of our farmers, realtors, people involved in forestry, anyone that is moving a little bit of earth anywhere in this country that might have an impact on navigable streams." Senate Debate, id. at 924.
In common dredging practices, excavation is followed by the disposal of dredged material at another location. Thus, Congress understood the 'discharge of dredged material' to involve the moving of material from one place to another. During the 1972 debates, Senator Ellender stated: "The disposal of dredged material does not involve the introduction of new pollutants; it merely moves the material from one location to another."
Senate Debate on S. 2770, 92d Cong., reprinted in 1972 Leg. Hist. at 1386. Incidental fallback associated with excavation or landclearing does not add material or move it from one location to another; some material simply falls back in the same general location from which most of it was removed. Congress' use of the term "specified disposal sites" underscores this reading as it conveys Congress' understanding that discharges would result in the relocation of material from one site to another.
See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 132 L. Ed. 2d 597, 115 S. Ct. 2407, 2415 (1995) ("a word 'gathers meaning from the words around it'") (citation omitted).
Third, Congress, through its lack of amendment, ratified 18 years of agency and judicial interpretation that excluded incidental fallback from § 404. Until the issuance of the Tulloch rule, the agencies took the position that § 404 applied to disposal, not removal, activities.
The agencies' prior regulations defining "discharge of dredged material" stated that this term does not include de minimis, incidental soil movement occurring during normal dredging operations." 33 C.F.R. § 323.2(d) (1992); 40 C.F.R. § 232.2(e) (1992). The Federal Register notice for the Corps' 1986 regulations stated:
Section 404 clearly directs the Corps to regulate the discharge of dredged material, not the dredging itself. Dredging operations cannot be performed without some fallback. However, if we were to define this fallback as a "discharge of dredged material," we would, in effect, be adding the regulation of dredging to section 404 which we do not believe was the intent of Congress.