Legislation & Regulation
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What Is Incidental Fallback?
December 2015 by Clark
We need to talk about “incidental fallback” as it relates to suction gold dredging.
“Incidental fallback” represents a net withdrawal, not an addition of material. Incidental fallback cannot be a discharge within the meaning of any state or federal Clean Water Act (CWA) as the CWA only permits and regulates additions. All gold mining suction dredges are designed to withdraw heavy metal (based on their specific gravity) from gravels and soils; it cannot be said that suction dredges add anything within the meaning of the CWA.
It is simple math—the difference between addition and subtraction. Those activities that add can require a 401, 402, or 404 permit; those that subtract do not require a permit at all. That is the intent of Congress. The EPA and the Army Corp has for the past 30 years tried to redefine “incidental fallback” under a regulated and permitted “redeposit” category, but the courts have found this agency practice invalid on numerous occasions and instructed the EPA and Army Corp to remove their offending regulatory expansion.
To illustrate this point, let’s look at National Mining Association v. US Army Corps of Engineers (145 F.3d 1399, 1404 (D.C.Cir.1998)). The court explained that, “[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge” and questioned “how there can be an addition of dredged material when there is no addition of material.” (Emphasis added.)
The court further stated, “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 state and local level, and little or no attention at the national level.” (Senate Report on S. 1952, 95th Congress, reprinted in 1977 Legislative History 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.)
This holding stands today, and is reflected in the National Association of Homebuilders v. US Army Corps of Engineers decision (D.D.C. 2007) invalidating the January 17, 2001, amendments to the Clean Water Act Section 404 regulatory definition of “discharge of dredged material” (referred to as the “Tulloch II” rule). The US Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) promulgated a joint final rule to amend this definition by conforming the Corps’ and EPA’s regulations to the language of the court’s opinion by deleting language from the regulation that was invalidated.
Agencies like to claim that sediment movement or turbidity created by suction dredging also creates a discharge, but in Frobel v. Meyer (13 F. Supp.2d 843) the court ruled: “Redepositing of indigenous sediment caused by state agency’s removal of dam did not result in any ‘discharge of dredged material’ that would require permit from Army Corps of Engineers under Clean Water Act (CWA) and either possible version of implementing regulations, even if manner in which dam was removed created a ‘scouring action’ that disturbed sediment and funneled it downstream.” (Federal Water Pollution Control Act, § 404(a), as amended, 33 U.S.C.A. § 1344(a); 33 C.F.R. § 323.2(d).)
The state, as mandated by the CWA and funded by federal law, cannot carry out an objective when it conflicts or is inconsistent with express Congressional intent, exemptions, and purpose. (See CA Coastal Commission v. Granite Rock 480 U.S. 572. )
If you take the time to read the instructions that are included with a 404 permit application you will find the words “other than incidental fallback” in the application instructions.
It is the position of Public Lands for the People that suction gold dredging does not require a Section 404 or related permit. As the court previously ruled, “[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge.”
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