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The Clean Water Act and Wetlands: Redeposit vs. Incidental Fallback

MNLICA News,  February– March 2014, p. 5

As published in MN Land Improvement Contractors of America News, page 5 (February – March 2014), available at  http://www.mnlica.org/News_Letters/MNLICA_Feb_Mar_2014.pdf

In the December/January 2013-2014 MNLICA Newsletter, we noted that Section 404 of the Clean Water Act (“CWA”) requires a permit from the Army Corps of Engineers (“Corps”) to discharge dredged or fill material into a “Water of the United States”.  The article focused on the U.S. Supreme Court’s attempt to define which wetlands fall under the Corps’ jurisdiction.  This article focuses on the agency’s definition of “discharge” and the level of disturbance necessary within a protected water to trigger CWA permitting requirements.

The CWA states that the discharge of any pollutant by any person is unlawful.  “Discharge of pollutants” is defined as any addition of any pollutant to navigable waters from any point source.  Among other things, “pollutants” covers dredged spoil and biological materials.  Historically, installation of drain tile by tile plows was not considered to create a significant enough disturbance to be a regulated “discharge.”  However, we recently reviewed a Notice of Violation and Administrative Order issued to a Minnesota landowner and his tiling contractor by the U.S. Environmental Protection Agency (“EPA”) which found plowed installation of six inch drain tile unlawful for discharging dredged material into wetlands allegedly covered by the CWA.  The Order demands the tile be removed and the wetlands restored.  The tile was installed using a Waynes Tile Pro plow pulled by a John Deere 9520 tractor.  In the Order, the EPA describes the unlawful “discharge” as “excavation of trenches of about 12 inches in width and between 3 and 6 feet in depth, sidecasting the excavated material along the side of the trench, laying of drainage tile, and then replacing the sidecast material on top of the installed drainage tile.”  The Order states the tiling plow is a “point source” which “discharges pollutants” into wetlands that are considered Waters of the United States.

To evaluate the legitimacy of EPA’s claims, it is important to understand how the courts have interpreted the agency’s regulations regarding whether a disturbance is a regulated “discharge” or an unregulated deposit incidental to a lawful activity.  In 1993, the agencies issued the Tulloch Rule which defined “discharge” as “[a]ny addition, including redeposit, of dredged material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation.”  The rule also covered “incidental fallback”—the sediment that falls off of a backhoe, for example, during excavation.  Several trade associations successfully challenged the agencies’ authority to regulate incidental redeposits, and a new rule was issued by the agencies which excluded all regulation of all “incidental fallback.”

“Incidental fallback” was originally defined as “the redeposit of small volumes of dredged material that is incidental to excavation activity . . . when such material falls back to substantially the same place as the initial removal.”  In 2007, the federal District Court for the District of Columbia held that the definition of “incidental fallback” violated the Clean Water Act because the definition used volume to determine what is “incidental.”  The court clarified that the difference between “incidental fallback” and regulated “redeposit” is best understood using two factors:  (1) the time the material is held before being dropped to earth and (2) the distance between the place where the material is collected and the place where it is dropped.  The less time the excavated material is held in extraction before being redeposited and the closer the redeposit takes place to its location of extraction, the less likely the agencies can require a permit to regulate the redeposit.

In response to the 2007 challenge, the agencies removed the definition of “incidental fallback” completely from the regulation, stating that “deciding when a particular redeposit of dredged material is subject to Clean Water Act jurisdiction will entail a case-by-case evaluation, consistent with our Clean Water Act authorities and governing case law.”  The current rule defines “discharge of dredged material” to include “[a]ny addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation.”

We have several concerns for land improvement contractors and landowners if tile plowing is determined to cause a discharge. First, given the agency’s intent to expand the scope of regulated waters, the potential for unwitting or unintended violation is substantially increased. Second, agency’s definition of regulated waters is significantly different from other agency definitions of wetlands – thus creating uncertainty as to whose definitions can be relied upon when making decision on whether and where to do work. Third, from a technical view, it is hard to imagine how tile plowing creates a discharge when nothing leaves the ground to be deposited or re-deposited. Fourth, the penalties for violating the CWA are massive – up to $37,500 per day for work performed without a permit.

The courts have not yet ruled on whether installation of drain tile using a tiling plow is a discharge or creates a significant enough disturbance of the soil to be exempted as “incidental fallback” or regulated as a “redeposit of pollutants.”  With the agencies positioning themselves to expand their reach over wetlands, tiling contractors and landowners are likely to see another level of regulation and permitting for installation of drainage tile in Minnesota.

© 2014 Rinke Noonan