## Facts

- The Clean Water Act (CWA) prohibits the discharge of pollutants into navigable waters without a permit and defines a “discharge” as an “addition” of a pollutant to navigable waters.
- Under CWA § 404, the U.S. Army Corps of Engineers (Corps) may issue permits for discharges of dredged or fill material; EPA shares responsibility for the regulatory definitions used in the § 404 program.
- A prior Corps definition of “discharge of dredged material” was set aside as overly broad because it could treat “incidental fallback” as a discharge, even when dredged material briefly disturbed during excavation merely fell back into substantially the same place.
- After that decision, the Corps and EPA issued a revised rule providing that earth-moving activity in waters would be treated as resulting in a discharge of dredged material unless project-specific evidence showed the activity would result only in “incidental fallback.”
- The rule defined “incidental fallback” as the redeposit of small amounts of dredged material that are incidental to excavation activity and that fall back to substantially the same place as the initial removal.
- The National Association of Home Builders (NAHB) challenged the revised regulation as exceeding the Corps’ and EPA’s authority under the CWA and moved for summary judgment.

## Issues

1. Whether the Corps and EPA exceeded their authority under the CWA by adopting a rule that treats earth-moving activity in waters as a presumptive discharge of dredged material unless project-specific evidence shows only incidental fallback.
2. Whether defining “incidental fallback” narrowly (as small redeposits in substantially the same place) unlawfully regulates activity that is not an “addition” to waters under the CWA.

## Decision

- The court denied NAHB’s motion for summary judgment.
- The court upheld the challenged regulation as within the Corps’ and EPA’s authority under the CWA.
- Judgment was entered for the government.

## Legal Principles

- Under the CWA, a discharge requires an “addition” of a pollutant to jurisdictional waters; material that is merely disturbed and falls back to substantially the same place during excavation may fall outside the statutory meaning of “addition.”
- The Corps and EPA may interpret and administer the CWA’s dredged-material permitting program through reasonable regulatory definitions that distinguish nonregulated incidental fallback from regulated redeposit associated with excavation.
- A rebuttable, project-specific evidentiary approach that treats many earth-moving activities as likely to cause a regulated discharge—while allowing a showing that only incidental fallback will occur—can be a lawful method of administering § 404, so long as the scheme does not categorically treat incidental fallback as a discharge.

## Conclusion

The district court upheld the Corps’ and EPA’s revised § 404 definition and approach to “incidental fallback,” concluding that treating earth-moving activities as presumptively involving a discharge—subject to a project-specific showing that only incidental fallback will occur—was within the agencies’ Clean Water Act authority, and it denied NAHB’s request for summary judgment.


National Association of Home Builders v. U.S. Army Corps of Engineers, 2007 WL 259944 (2007)