American Mining Congress v. United States Army Corps of Engineers

The United States Army Corps of Engineers and the Environmental Protection Agency (collectively, agencies) (defendants) regulated the discharge of dredged material into water under § 404 of the Clean Water Act (CWA). For 18 years, the agencies did not regulate the incidental fallback of material into water that occurred during ordinary dredging operations used in activities such as ditching. A North Carolina developer used specially adapted dredging equipment to develop hundreds of acres of wetlands without a § 404 permit. In response, the agencies adopted the Tulloch rule, which redefined the discharge of dredged material to include the incidental fallback of material as a result of land clearing, ditching, channelization, or other activity that would destroy or degrade any waterway. De minimus disturbance of soil during normal dredging activity was excluded. The new rule was focused on the result of the discharge rather than the volume of the discharge. Congress expressly regulated excavation and filling activity in other federal law. The legislative history of § 404 included references to the discharge of dredged material into open water. This history further explained that legislators did not intend that the § 404 rules would extend to farmers, forestry, or “anyone moving earth anywhere in the country.” On several occasions, Congress had declined to pass amendments to § 404 that would define incidental fallback as discharge. The American Mining Congress (AMC) (plaintiff) sued the agencies to overturn the Tulloch rule.