National Mining Assn v. US Army Corps Eng

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 1998 Decided June 19, 1998

No. 97-5099

National Mining Association, et al.,

Appellees

v.

U.S. Army Corps of Engineers, et al.,

Appellants

Consolidated with

No. 97-5112

Appeals from the United States District Court

for the District of Columbia

(No. 93cv01754)

Ronald M. Spritzer, Attorney, U.S. Department of Justice,

argued the cause for the federal appellants. With him on the

briefs were Lois J. Schiffer, Assistant Attorney General,

David C. Shilton, Alice L. Mattice, Attorneys, and Steven

Neugeboren, Counsel, U.S. Environmental Protection Agency.

Howard I. Fox argued the cause and filed the briefs for

appellants National Wildlife Federation, et al.

Virginia S. Albrecht argued the cause for appellees Nation-

al Mining Association, et al. With her on the brief were Gary

J. Smith and Harold P. Quinn, Jr.

Lawrence R. Liebesman, Robin L. Rivett, M. Reed Hopper,

Robert J. Saner, II, and Nancie G. Marzulla were on the

brief for amici curiae City of Colorado Springs, Colorado, et

al.

Tom Udall, Attorney General, State of New Mexico, Al-

letta Belin, Assistant Attorney General, Winston Bryant, At-

torney General, State of Arkansas, J. Joseph Curran, Jr.,

Attorney General, State of Maryland, Jeremiah W. Nixon,

Attorney General, State of Missouri, Joseph P. Mazurek, At-

torney General, State of Montana, Frankie Sue Del Papa,

Attorney General, State of Nevada, W.A. Drew Edmondson,

Attorney General, State of Oklahoma, William H. Sorrell,

Attorney General, State of Vermont, and Christine O. Gre-

goire, Attorney General, State of Washington, were on the

brief for amici curiae State of New Mexico, et al.

Before: Silberman, Williams and Sentelle, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Williams.

Concurring opinion filed by Circuit Judge Silberman.

Williams, Circuit Judge: Section 404 of the Clean Water

Act (the "Act") authorizes the United States Army Corps of

Engineers (the "Corps") to issue permits "for the discharge of

dredged or fill material into the navigable waters at specified

disposal sites." 33 U.S.C. s 1344. Section 301(a) of the Act

provides that the "discharge of any pollutant by any person"

is unlawful unless in compliance with Act's permit require-

ments, including those of s 404. Id. s 1311(a). "Discharge,"

in turn, is defined as "any addition of any pollutant to

navigable waters from any point source." Id. s 1362(12).

In 1986 the Corps issued a regulation defining the term

"discharge of dredged material," as used in s 404, to mean

"any addition of dredged material into the waters of the

United States," but expressly excluding "de minimis, inciden-

tal soil movement occurring during normal dredging opera-

tions." 51 Fed. Reg. 41,206, 41,232 (Nov. 13, 1986). In 1993,

responding to litigation, the Corps issued a new rule remov-

ing the de minimis exception and expanding the definition of

discharge to cover "any addition of dredged material into,

including any redeposit of dredged material within, the

waters of the United States." 33 CFR s 323.2(d)(1) (empha-

sis added). Redeposit occurs when material removed from

the water is returned to it; when redeposit takes place in

substantially the same spot as the initial removal, the parties

refer to it as "fallback." In effect the new rule subjects to

federal regulation virtually all excavation and dredging per-

formed in wetlands.

The plaintiffs, various trade associations whose members

engage in dredging and excavation, mounted a facial chal-

lenge to the 1993 regulation, claiming that it exceeded the

scope of the Corps's regulatory authority under the Act by

regulating fallback. The district court agreed and granted

summary judgment for the plaintiffs. American Mining

Congress v. United States Army Corps of Engineers, 951

F. Supp. 267 (D.D.C. 1997). The district court also entered

an injunction prohibiting the Corps and the Environmental

Protection Agency, who jointly administer s 404, from enforc-

ing the regulation anywhere in the United States. Id. at 278.

We affirm.

* * *

The Act sets up two independent permitting systems. See

33 U.S.C. s 1311(a). Section 402 authorizes EPA (or state

agencies in some circumstances) to issue National Pollutant

Discharge Elimination System ("NPDES") permits to control

the discharge of wastewater into navigable waters. Section

404, the provision at issue in this case, authorizes the Corps,

with EPA oversight, to issue permits "for the discharge of

dredged or fill material into the navigable waters at specified

disposal sites." Id. s 1344(a).1 At the time of the Act's

passage in 1972, the Corps already had jurisdiction over

navigational dredging under Section 10 of the Rivers and

Harbors Act of 1899, 33 U.S.C. s 403.

For the purposes of the Act, the phrase "navigable waters"

has been construed to include wetlands. United States v.

Riverside Bayview Homes, 474 U.S. 121, 131-32 & n.8 (1985)

(upholding as not unreasonable an interpretation by the

Corps that the Act is applicable to wetlands "adjacent to but

not regularly flooded by rivers, streams, and other hydro-

graphic features more conventionally identifiable as 'wa-

ters' ").2 Wetlands, in turn, are defined by the Corps as

areas "inundated or saturated by surface or ground water at

a frequency and duration sufficient to support, and that under

normal circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions." 33

CFR s 328.3(b). The United States Fish and Wildlife Ser-

vice estimated that as of the 1980s there were 104 million

acres of wetlands in the contiguous United States--about five

percent of the total land surface of the lower 48 states. T.E.

Dahl, Wetlands Losses in the United States 1780's to 1980's 5

(U.S. Fish & Wildlife Service 1990). (Because so much of

Alaska is wetlands by the prevailing definition, the proportion

rises to twelve percent if all 50 states are included.) Id. The

plaintiffs assert that seventy-five percent of wetlands in the

United States are privately owned. Plaintiffs' Br. at 6.

__________

1 The challenged regulation does not address discharge of "fill

material," which the Corps defines as "any material used for the

primary purpose of replacing an aquatic area with dry land or of

changing the bottom elevation of an [sic] waterbody." 33 CFR

s 323.2(e).

2 Compare United States v. Wilson, 133 F.3d 251, 257 (4th Cir.

1997) (holding that regulations purporting to reach wetlands whose

degradation or destruction "could affect" interstate or foreign com-

merce were beyond statutory authorization because they would

"include intrastate waters that need have nothing to do with naviga-

ble or interstate waters.").

In 1977 the Corps promulgated regulations that generally

tracked the statutory language, defining "discharge of

dredged material" as "any addition of dredged material into

the waters of the United States," with a few limited excep-

tions. 42 Fed. Reg. 37,145 (July 19, 1977). A new regulation

issued in 1986 exempted from the permit requirement "de

minimis, incidental soil movement occurring during normal

dredging operations." 51 Fed. Reg. at 41,232. Although this

regulation did not define "normal dredging operations," its

preamble gave some guidance as to the exemption's coverage:

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.

Id. at 41,210. The parties agree that the 1986 rule did,

however, regulate "sidecasting," which involves placing re-

moved soil in a wetland but at some distance from the point of

removal (e.g., by the side of an excavated ditch). See 58 Fed.

Reg. 45,008, 45,013/3 (Aug. 25, 1993) (noting that sidecasting

has "always been regulated under Section 404.").

The 1993 rulemaking under challenge here was prompted

by a lawsuit, North Carolina Wildlife Federation v. Tulloch,

Civ. No. C90-713-CIV-5-BO (E.D. N.C. 1992), concerning a

developer who sought to drain and clear 700 acres of wetlands

in North Carolina. See 58 Fed. Reg. at 45,016. Because the

developer's efforts involved only minimal incidental releases

of soil and other dredged material, the Corps's field office

personnel determined that, under the terms of the 1986

regulation, s 404's permit requirements did not apply. Envi-

ronmental groups, concerned by what they viewed as the

adverse effects of the developer's activities on the wetland,

filed an action seeking enforcement of the s 404 permit

requirement. As part of the settlement of the Tulloch case (a

settlement to which the developer was not a party), the two

administering agencies agreed to propose stiffer rules govern-

ing the permit requirements for landclearing and excavation

activities. The result--the regulation at issue here--has

come to be called the "Tulloch Rule."

As mentioned above, the Tulloch Rule alters the preexist-

ing regulatory framework primarily by removing the de min-

imis exception and by adding coverage of incidental fallback.

Specifically, the rule defines "discharge of dredged material"

to include "[a]ny addition, including any redeposit, 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." 33 CFR s 323.2(d)(1)(iii) (emphasis added).3

The Tulloch Rule does have its own de minimis exception,

but it is framed in terms of the Act's overall goals. A permit

is not required for "any incidental addition, including redepos-

it, of dredged material associated with any activity that does

not have or would not have the effect of destroying or

degrading an area of waters of the United States." 33 CFR

s 323.2(d)(3)(i). Persons engaging in "mechanized landclear-

ing, ditching, channelization and other excavation activity,"

however, bear the burden of proving to the Corps that their

activities would not have destructive or degrading effects.

Id. Degradation is defined as any effect on the waters of the

United States that is more than de minimis or inconsequen-

tial. Id. s 323.2(d)(5). Thus, whereas the 1986 rule exempt-

ed de minimis soil movement, the Tulloch Rule covers all

discharges, however minuscule, unless the Corps is convinced

that the activities with which they are associated have only

minimal adverse effects. In promulgating the new rule the

Corps "emphasize[d] that the threshold of adverse effects for

the de minimis exception is a very low one." 56 Fed. Reg. at

45,020.

It is undisputed that by requiring a permit for "any

redeposit," 33 CFR s 323.2(d)(1)(iii) (emphasis added), the

Tulloch Rule covers incidental fallback. According to the

agencies, incidental fallback occurs, for example, during

__________

3 EPA promulgated a parallel rule, which is codified at 40 CFR

s 232.2(1)(iii).

dredging, "when a bucket used to excavate material from the

bottom of a river, stream, or wetland is raised and soils or

sediments fall from the bucket back into the water." Agen-

cies' Br. at 13. (There is no indication that the rule would not

also reach soils or sediments falling out of the bucket even

before it emerged from the water.) Fallback and other

redeposits also occur during mechanized landclearing, when

bulldozers and loaders scrape or displace wetland soil, see 58

Fed. Reg. 45,017-18, as well as during ditching and channeli-

zation, when draglines or backhoes are dragged through soils

and sediments. See id. at 45,018. Indeed, fallback is a

practically inescapable by-product of all these activities. In

the preamble to the Tulloch Rule the Corps noted that "it is

virtually impossible to conduct mechanized landclearing,

ditching, channelization or excavation in waters of the United

States without causing incidental redeposition of dredged

material (however small or temporary) in the process." Id. at

45,017. As a result, the Tulloch Rule effectively requires a

permit for all those activities, subject to a limited exception

for ones that the Corps in its discretion deems to produce no

adverse effects on waters of the United States.

* * *

The plaintiffs claim that the Tulloch Rule exceeds the

Corps's statutory jurisdiction under s 404, which, as we have

noted, extends only to "discharge," defined as the "addition of

any pollutant to navigable waters." 33 U.S.C. ss 1344,

1362(12). It argues that fallback, which returns dredged

material virtually to the spot from which it came, cannot be

said to constitute an addition of anything. Therefore, the

plaintiffs contend, the Tulloch Rule conflicts with the statute's

unambiguous terms and cannot survive even the deferential

scrutiny called for by Chevron U.S.A., Inc. v. NRDC, 467 U.S.

837 (1984). The "jurisdictional" character of the issue has no

effect on the level of deference, Oklahoma Natural Gas Co. v.

FERC, 28 F.3d 1281, 1283-84 (D.C. Cir. 1994), as the plain-

tiffs seem to acknowledge by their silence on the subject.

The agencies argue that the terms of the Act in fact

demonstrate that fallback may be classified as a discharge.

The Act defines a discharge as the addition of any pollutant

to navigable waters, 33 U.S.C. s 1362(12), and defines "pollu-

tant" to include "dredged spoil," as well as "rock," "sand,"

and "cellar dirt." Id. s 1362(6). The Corps in turn defines

"dredged material" as "material that is excavated or dredged

from waters of the United States," 33 CFR s 323.2(c), a

definition that is not challenged here. Thus, according to the

agencies, wetland soil, sediment, debris or other material in

the waters of the United States undergoes a legal metamor-

phosis during the dredging process, becoming a "pollutant"

for purposes of the Act. If a portion of the material being

dredged then falls back into the water, there has been an

addition of a pollutant to the waters of the United States.

Indeed, according to appellants National Wildlife Federation

et al. ("NWF"), who intervened as defendants below, this

reasoning demonstrates that regulation of redeposit is actual-

ly required by the Act.

We agree with the plaintiffs, and with the district court,

that the straightforward statutory term "addition" cannot

reasonably be said to encompass the situation in which mate-

rial is removed from the waters of the United States and a

small portion of it happens to fall back. Because incidental

fallback represents a net withdrawal, not an addition, of

material, it cannot be a discharge. As we concluded recently

in a related context, "the nearest evidence we have of defini-

tional intent by Congress reflects, as might be expected, that

the word 'discharge' contemplates the addition, not the with-

drawal, of a substance or substances." North Carolina v.

FERC, 112 F.3d 1175, 1187 (D.C. Cir. 1997). The agencies'

primary counterargument--that fallback constitutes an "addi-

tion of any pollutant" because material becomes a pollutant

only upon being dredged--is ingenious but unconvincing.

Regardless of any legal metamorphosis that may occur at the

moment of dredging, we fail to see how there can be an

addition of dredged material when there is no addition of

material. Although the Act includes "dredged spoil" in its

list of pollutants, 33 U.S.C. s 1362(6), Congress could not

have contemplated that the attempted removal of 100 tons of

that substance could constitute an addition simply because

only 99 tons of it were actually taken away.4

In fact the removal of material from the waters of the

United States, as opposed to the discharge of material into

those waters, is governed by a completely independent statu-

tory scheme. Section 10 of the Rivers and Harbors Act of

1899, 33 U.S.C. s 403, makes it illegal "to excavate or fill" in

the navigable waters of the United States without the Corps's

approval. As the general counsel of the Army noted in a law

review article published a few years after the passage of the

Clean Water Act, Congress enacted "two separate statutory

frameworks. Section 10 of the 1899 Act covers the act of

dredging, while Section 404 [of the Clean Water Act] covers

the disposal of the dredged material." Charles D. Ablard and

Brian B. O'Neill, Wetland Protection and Section 404 of the

Federal Water Pollution Control Act Amendments of 1972:

A Corps of Engineers Renaissance, 1 Vt. L. Rev. 51, 93

(1976).

The agencies, though acknowledging that the Tulloch Rule

effectively requires a permit for all mechanized landclearing,

ditching, channelization or excavation in waters of the United

States, see 58 Fed. Reg. at 45,017, locate their permitting

requirement under s 404, not under the Rivers and Harbors

Act's explicit coverage of "excavat[ion]." The explanation for

__________

4 The unreasonableness of the agencies' statutory interpretation

was illustrated by some of the hypotheticals posed at oral argument.

For instance, counsel for the agencies admitted that under their

interpretation of the term "discharge" in s 301(a), it "might very

well" be permissible to require any landowner in the United States

wishing to cut down a tree in a wetland to obtain a s 402 permit,

since 33 U.S.C. s 1362(6) defines "pollutant" to include "biological

material." Oral Arg. Tr. at 22. Similarly, counsel agreed that the

Corps could require a permit to ride a bicycle across a wetland

under its interpretation of s 404, although bicycle-riding seems--

for now--to be exempted under the Tulloch Rule as an activity that

does not generally destroy or degrade waters of the United States.

Oral Arg. Tr. at 25; see 58 Fed. Reg. at 45,023 (indicating that

"walking, grazing, vehicular traffic, and boating" would not general-

ly be regulated).

this choice is apparently that the scope of the Corps's geo-

graphic jurisdiction is narrower under the Rivers and Har-

bors Act than under the Clean Water Act, extending only to

waters subject to the ebb and flow of the tide, or waters that

are used, have been used, or may be susceptible for use to

transport interstate or foreign commerce. 33 CFR s 329.4;

see also id. s 328.1 (noting difference between geographic

jurisdiction under the two statutes).

There may be an incongruity in Congress's assignment of

extraction activities to a statute (the Rivers and Harbors Act)

with a narrower jurisdictional sweep than that of the statute

covering discharges (the Clean Water Act). This incongruity,

of course, could be cured either by narrowing the jurisdiction-

al reach of the Clean Water Act or broadening that of the

Rivers and Harbors Act.5 But we do not think the agencies

can do it simply by declaring that incomplete removal consti-

tutes addition.

The agencies also point to some specific exemptions set

forth in s 404(f) of the Act in support of their view that

fallback can reasonably be said to constitute discharge. Con-

gress added the subsection in 1977, apparently in response to

the broad construction of "discharge" in the 1977 regulations.

It provides that "the discharge of dredged or fill material ...

is not prohibited ... or otherwise subject to regulation"

under the Act's permitting requirements when the discharge

results from any of a number of specifically exempted activi-

ties, including "normal farming, silviculture, and ranching

activities such as plowing, seeding, cultivating, [or] minor

drainage," 33 U.S.C. s 1344(f)(1)(A), and "maintenance of

drainage ditches," id. s 1344(f)(1)(C). After listing these

exemptions, s 404(f) provides that a permit shall nonetheless

be required for any activity "having as its purpose bringing

an area of the navigable waters into a use to which it was not

__________

5 Of course it is conceivable that even if the statutes were

construed to cover the same geographic jurisdiction, some activi-

ties--perhaps some kinds of mechanized landclearing--might still

lie beyond the reach of both. Any such lacuna--as the agencies

would clearly perceive it--would of course be simply a function of

Congress's decisions.

previously subject, where the flow or circulation of navigable

waters may be impaired or the reach of such waters be

reduced." Id. s 1344(f)(2).

The agencies claim these exemptions show that as a gener-

al matter Congress considered fallback to be covered by

s 404. They especially note that s 404(f)(1) uses the term

"discharge of dredged or fill material" to describe the conse-

quences of the protected activities, supposedly reflecting a

congressional belief that fallback is a form of discharge.

We find the exemptions far less telling. Some of the

named activities--plowing, ditch maintenance, and the like--

may produce fallback, but they may also produce actual

discharges, i.e., additions of pollutants, so that s 404(f) ac-

complishes a useful purpose simply by exempting them inso-

far as they produce the latter. Some others, such as seeding,

seem to us just as unlikely to produce fallback as actual

discharge, so we are reluctant to draw any inference other

than that Congress emphatically did not want the law to

impede these bucolic pursuits.

NWF complains that our understanding of "addition" reads

the regulation of dredged material out of the statute. They

correctly note that since dredged material comes from the

waters of the United States, 33 CFR s 323.2(c), any dis-

charge of such material into those waters could technically be

described as a "redeposit," at least on a broad construction of

that term. The Fifth Circuit made a similar observation

fifteen years ago: " '[D]redged' material is by definition mate-

rial that comes from the water itself. A requirement that all

pollutants must come from outside sources would effectively

remove the dredge-and-fill provision from the statute." Avo-

yelles Sportsmen's League v. Marsh, 715 F.2d 897, 924 n.43

(5th Cir. 1983). But we do not hold that the Corps may not

legally regulate some forms of redeposit under its s 404

permitting authority.6 We hold only that by asserting juris-

diction over "any redeposit," including incidental fallback, the

__________

6 Even the plaintiffs concede that under a broad reading of the

term "redeposit," "a redeposit could be an addition to [a] new

location and thus a discharge." Plaintiffs' Br. at 17.

Tulloch Rule outruns the Corps's statutory authority. Since

the Act sets out no bright line between incidental fallback on

the one hand and regulable redeposits on the other, a rea-

soned attempt by the agencies to draw such a line would

merit considerable deference. Cf. Dubois v. U.S. Dep't of

Agriculture, 102 F.3d 1273, 1296-99 (1st Cir. 1996) (although

movement of pollutants within the same body of water might

not constitute an "addition" for purposes of NPDES permit

requirement, movement from one body of water to a separate

one with different water quality is an addition). But the

Tulloch Rule makes no effort to draw such a line, and indeed

its overriding purpose appears to be to expand the Corps's

permitting authority to encompass incidental fallback and, as

a result, a wide range of activities that cannot remotely be

said to "add" anything to the waters of the United States.

The agencies cite opinions from several other circuits in

support of the proposition that redeposit may be regulated

under s 404. Because all of these decisions predated the

Tulloch Rule, however, none addressed the fallback issue

directly. Indeed, none of them contains any language sug-

gesting that regulation of fallback would be proper.

In Avoyelles, for example, the Fifth Circuit held that the

s 404 permit requirement applied to a large-scale mechanized

landclearing project in Louisiana. Although the court held

that "[t]he word 'addition,' as used in the definition of the

term 'discharge,' may reasonably be understood to include

'redeposit,' " 715 F.2d at 923, it did not consider incidental

fallback at all. Rather, it simply held that the deliberate

leveling of sloughs that had formerly contained rainwater, for

the purpose of replacing an "aquatic area" with dry land,

constituted a discharge of fill material. Id. at 924-25. (It

did not even reach the question whether the activities were "a

discharge of dredged material." Id. at 925.) Similarly, the

Eleventh Circuit did not reach the fallback issue in its

decision in United States v. M.C.C. of Florida, 772 F.2d 1501

(11th Cir. 1985), vacated on other grounds, 481 U.S. 1034

(1987), readopted in relevant part on remand, 848 F.2d 1133

(11th Cir. 1988), finding instead that a construction company

had displaced dredged spoil from the bottom of a waterway

"onto the adjacent sea grass beds," 772 F.2d at 1506, a

displacement that seems analytically more similar to sidecast-

ing than to fallback.7

Perhaps the strongest authority for the agencies' position is

Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990). There the

Ninth Circuit found that the Act permitted EPA to regulate

placer mining, a process in which miners excavate dirt and

gravel in and around waterways, and, after extracting the

gold, discharge the leftover material back into the water.

Rybachek held that the material separated from gold and

released into the stream constituted a pollutant, and, to the

extent that "the material discharged originally comes from

the streambed itself, [its] resuspension [in the stream] may be

interpreted to be an addition of a pollutant under the Act."

Id. at 1285. Rybachek would help the agencies if the court

had held that imperfect extraction, i.e., extraction accompa-

nied by incidental fallback of dirt and gravel, constituted

"addition of a pollutant," but instead it identified the regula-

ble discharge as the discrete act of dumping leftover material

into the stream after it had been processed. Finally, Minne-

haha Creek Watershed District v. Hoffman, 597 F.2d 617 (8th

Cir. 1979), held simply that the construction of dams and

riprap fall within s 404 because they involve "the placement

of rock, sand or cellar dirt into the body of water." Id. at

626.8

__________

7 As for sidecasting, we note that after the briefs were submitted

in this case a divided panel of the Fourth Circuit issued opinions

concerning whether that activity may properly be regulated under

the Act. Judge Niemeyer held that sidecasting does not constitute

an "addition" within the meaning of the Act, Judge Payne held that

it does, and Judge Luttig joined neither opinion. See Wilson, 133

F.3d at 258-60 (opinion of Niemeyer, J.); id. at 272-75 (opinion of

Payne, J.).

8 In addition, our decision today is wholly consistent with Nation-

al Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), in

The agencies make one last-ditch argument in defense of

the Tulloch Rule, relying on the fact that the plaintiffs have

raised a facial challenge to its validity. In effect, the agencies

argue that the deferential Chevron test should be replaced in

the context of facial attacks by an even more lenient stan-

dard--an administrative-law version of the test used by the

Supreme Court to evaluate a facial constitutional challenge to

a statute in United States v. Salerno, 481 U.S. 739 (1987).

Salerno said that a "facial challenge to a legislative Act is, of

course, the most difficult challenge to mount successfully,

since the challenger must establish that no set of circum-

stances exists under which the Act would be valid." Id. at

745.9 So here, argues the Corps, the Tulloch Rule must be

upheld if any set of circumstances exists under which the rule

would be within the Corps's statutory authority.

If the Salerno approach applies here at all, it does so with a

wrinkle. The plaintiffs raise a facial challenge to a 1993

rulemaking which broadened the scope of the preexisting

1986 regulation, but they do not deny that the earlier rule had

valid applications. Thus, as even the Corps concedes, the

plaintiffs' burden under a Salerno approach would be to show

that the incremental regulation represented by the Tulloch

Rule is invalid under every set of circumstances; to show, in

other words, that the Corps would be acting ultra vires every

time it required a permit under the 1993 rule that it could not

have required under the 1986 rule.

Once this wrinkle has been added, we are not at all sure

that the plaintiffs fail to carry the Salerno burden. At oral

argument, counsel for the agencies gave three examples of

discharges to which he said the Tulloch Rule could be validly

__________

which we held that EPA's interpretation of the term "addition"

"must be accepted unless manifestly unreasonable." Id. at 175.

For the foregoing reasons we find the agencies' reading of "addi-

tion" as including incidental fallback to be just that.

9 The Salerno test does not apply in the area of First Amendment

free speech rights, where statutes with some valid applications may

nonetheless be struck down for overbreadth. See Salerno, 481 U.S.

at 745.

applied but that the old rule did not cover: (1) mechanized

landclearing, (2) fallback at various distances from the point

of removal, and (3) resuspension of dredged material in a

body of water. Oral Arg. Tr. at 29-30, 47-48, 102. Most

discharges in these three categories, however, would appear

to have been regulable by the Corps before the enactment of

the Tulloch Rule. Subjection of mechanized landclearing to

s 404 permit requirements was upheld pre-Tulloch, in Avo-

yelles. As for redeposits at some distance from the point of

removal, the agencies' assertion that sidecasting has "always

been regulated under Section 404," 58 Fed. Reg. at 45,013,

places such conduct within the pre-Tulloch core. But see

United States v. Wilson, 133 F.3d 251, 258-60 (Niemeyer, J.)

(4th Cir. 1997) (summarized in note 7 above). Finally, if by

"resuspension" counsel for the agencies was referring to

activities like the one at issue in Rybachek (removal of dirt

and gravel from a streambed and its subsequent redeposit in

the waterway after segregation of gold), the pre-Tulloch rule

clearly suffices. And if counsel meant "resuspension" to

cover excavation or dredging accompanied by incidental fall-

back (in other words, as the agencies concede, virtually every

act of excavation or dredging), it contradicts the statutory

requirement of an addition.

This leaves at most some marginal cases that might fall

outside the scope of pre-Tulloch regulation but would still

qualify as additions under the Act. Such cases might include

incidental soil movements occurring in normal dredging oper-

ations that nonetheless somehow result in a transfer "be-

tween unrelated water bodies of different water quality."

Dubois, 102 F.3d at 1297-98. We express no opinion as to

how the Dubois concept of an addition might apply, if at all,

to the sort of "waters" primarily at issue here, that is,

wetlands.

Yet we need not determine precisely how far the Tulloch

Rule goes beyond the preexisting regulations, for we hold

that the Salerno standard does not apply here. The Supreme

Court has never adopted a "no set of circumstances" test to

assess the validity of a regulation challenged as facially

incompatible with governing statutory law. Indeed, the

Court in at least one case, Sullivan v. Zebley, 493 U.S. 521

(1990), upheld a facial challenge under normal Chevron stan-

dards, despite the existence of clearly valid applications of the

regulation. The statute required the Department of Health

and Human Services to cover all children who suffered from

disabilities of "comparable severity" to those that would

disable an adult, id. at 529, but HHS's rule excluded some

who would have been considered disabled had they been

adults. Although some of the exclusions were clearly perfect-

ly proper under the statute, the Court invalidated the rule,

saying that "a facial challenge [was] a proper response to the

systemic disparity between the statutory standard and

[HHS's] approach to child-disability claims." Id. at 537 n.18.

Our own cases confirm that the normal Chevron test is not

transformed into an even more lenient "no valid applications"

test just because the attack is facial. We have on several

occasions invalidated agency regulations challenged as facially

inconsistent with governing statutes despite the presence of

easily imaginable valid applications. See, e.g., Health Ins.

Ass'n of America, Inc. v. Shalala, 23 F.3d 412, 418-20 (D.C.

Cir. 1994) (holding that agency exceeded statutory authority

in enacting regulation concerning Medicare payment recov-

ery, because rule plainly covered some situations in which

recovery was barred by statute).

To be sure, the Supreme Court has recently suggested that

it may take a more Salerno-like line on facial challenges to

regulations. In Babbitt v. Sweet Home Chapter, Communi-

ties for a Greater Oregon, 515 U.S. 687 (1995), the Court

upheld a regulation promulgated by the Secretary of the

Interior interpreting the word "harm" in the Endangered

Species Act. The Court noted that because the parties

attacking the regulation were proceeding on a facial basis,

"they ask us to invalidate the Secretary's understanding of

'harm' in every circumstance," id. at 699, which the Court

declined to do. There is no indication, however, that this

observation in any way contributed to the result in that case.

The Court did not sustain the regulation on the basis of a few

hypothetical instances of valid application; instead, it held

that the Secretary's understanding of "harm" was a reason-

able interpretation of the statute in general. See id. at 696-

708. As Justice Scalia noted in dissent, it would have been

remarkable for the Court to find that the regulation omitted

an element made essential by the statute, and then proceed to

uphold the regulation against facial attack because that ele-

ment might happen to be present on the facts of a particular

case. See id. at 731-32 (Scalia, J., dissenting). The same can

be said here: by purporting to cover "any redeposit," the

Tulloch Rule eschews the Act's "addition" requirement. A

facial attack on the rule should not fail simply because the

Corps might apply it to cases where an addition is present.

Although we reject the agencies' proposed extension of

Salerno, we emphasize that it is quite distinct from the

familiar proposition that a court should reject a facial chal-

lenge, either as unripe or meritless, when the challenger's

success turns on the assumption that the agency will exercise

its discretion unlawfully, see, e.g., Action Alliance Of Senior

Citizens Of Greater Philadelphia v. Heckler, 789 F.2d 931,

941 (D.C. Cir. 1986), or will misapply the regulation, see, e.g.,

Union of Concerned Scientists v. U.S. Nuclear Regulatory

Commission, 880 F.2d 552, 558-59 (D.C. Cir. 1989). Cf.

Sullivan v. Everhart, 494 U.S. 83, 94 (1990) (although peti-

tioners argued that Secretary of HHS might apply statute in

bad faith, "since that is an obvious violation of the Act it is

... not the stuff of which a facial challenge can be construct-

ed."). The plaintiffs here rely on no such assumption. The

problem with the Tulloch Rule is that its faithful application

would carry the agency beyond its statutory mandate.

There remains only the question of remedy. The agencies

challenge the district court's issuance of a nationwide injunc-

tion ordering "that the so-called Tulloch rule is declared

invalid and set aside, and henceforth is not to be applied or

enforced by the Corps of Engineers or the Environmental

Protection Agency." 951 F. Supp. at 278. The agencies

make two arguments: first, that the plaintiffs are not entitled

to an injunction because they presented no record evidence,

and the district court made no explicit findings, as to the

elements necessary for injunctive relief; and second, that

even if the plaintiffs were entitled to an injunction the district

court erred by granting nationwide relief to plaintiffs and

non-parties alike.

As for the first argument, we note at the outset that

district courts enjoy broad discretion in awarding injunctive

relief. See, e.g., Wagner v. Taylor, 836 F.2d 566, 575 (D.C.

Cir. 1987). The district court was well within its discretion in

finding that the complaint placed the agencies on notice that

appellees sought both declaratory and injunctive relief. See

First Amended Complaint For Declaratory and Injunctive

Relief (filed Sept. 20, 1993), at 25-26. Although the court

made no express findings as to the elements necessary for a

permanent injunction (the most salient of which is the inade-

quacy of legal remedies), we do not think it was required to

do so. Even now the agencies identify no legal remedy as

adequate. Money damages were never sought in this action,

and even if the government were somehow found to have

waived its sovereign immunity against damage actions, it is

hard to see the relevance of such remedies in the context of a

pre-enforcement challenge to agency regulations. The plain-

tiffs did seek (and obtain) a declaration of the Tulloch Rule's

invalidity, but this brand of relief is itself more equitable than

legal in nature. See In re United States Brass Corp., 110

F.3d 1261, 1267 (7th Cir. 1997); Penthouse International,

Ltd. v. Meese, 939 F.2d 1011, 1019-20 (D.C. Cir. 1991).

Moreover, in their summary judgment motion the agencies

failed to argue that a declaratory judgment would be ade-

quate, or to contest any of the elements necessary for an

injunction. And once the court reached the conclusion that

the rule was indeed illegal (i.e., not merely that the plaintiffs

had a reasonable probability of success on the merits, as

would be necessary for a preliminary injunction), there was

no separate need to show irreparable injury, as that is merely

one possible "basis for showing the inadequacy of the legal

remedy." 11A Wright & Miller, Federal Practice and Proce-

dure s 2944, at 94 (2d ed. 1995). In sum we do not think the

district court was required to make explicit findings as to

these elements before issuing its injunction.

The agencies' argument about the breadth of the injunction

fares no better. We have made clear that "[w]hen a review-

ing court determines that agency regulations are unlawful,

the ordinary result is that the rules are vacated--not that

their application to the individual petitioners is proscribed."

Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir.

1989). Justice Blackmun made a similar observation in Lu-

jan v. National Wildlife Federation, 497 U.S. 871 (1990),

writing in dissent but apparently expressing the view of all

nine Justices on this question:

The Administrative Procedure Act permits suit to be

brought by any person "adversely affected or aggrieved

by agency action." In some cases the "agency action"

will consist of a rule of broad applicability; and if the

plaintiff prevails, the result is that the rule is invalidated,

not simply that the court forbids its application to a

particular individual. Under these circumstances a sin-

gle plaintiff, so long as he is injured by the rule, may

obtain "programmatic" relief that affects the rights of

parties not before the court. On the other hand, if a

generally lawful policy is applied in an illegal manner on

a particular occasion, one who is injured is not thereby

entitled to challenge other applications of the rule.

Id. at 913 (Blackmun, J., dissenting) (citation omitted). See

also id. at 890 n.2 (majority opinion) (noting that under APA,

successful challenge by aggrieved individual can affect entire

agency program). The agencies cite Baeder v. Heckler, 768

F.2d 547 (3d Cir. 1985), for the proposition that a court in

some circumstances may not order a nationwide injunction

even after holding a regulation invalid. Baeder, however, did

not involve a facial challenge to the validity of a regulation;

the Third Circuit held simply that a sweeping injunction

would not be a proper remedy "in the context of [an individu-

al plaintiff's] claim for disability benefits." Id. at 553.

Moreover, if persons adversely affected by an agency rule

can seek review in the district court for the District of

Columbia, as they often may, see 28 U.S.C. s 1391(e), our

refusal to sustain a broad injunction is likely merely to

generate a flood of duplicative litigation. Even though our

jurisdiction is not exclusive, an injunction issued here only as

to the plaintiff organizations and their members would cause

all others affected by the Tulloch Rule (or at least all those

with enough at stake and with astute enough lawyers) to file

separate actions for declaratory relief in this circuit. Issu-

ance of a broad injunction obviates such repetitious filings. It

does so, to be sure, at the cost of somewhat diminishing the

scope of the "non-acquiescence" doctrine, under which the

government may normally relitigate issues in multiple cir-

cuits. See United States v. Mendoza, 464 U.S. 154 (1984).

By contrast, agency defeats in other circuits cannot produce

as severe an effect, because, although other courts can also

issue nationwide injunctions, they need not fear a flood of

relitigation since venue restrictions would exclude many

would-be plaintiffs from access to the invalidating court. The

resulting gap in the effective scope of the non-acquiescence

doctrine appears to be no more than an inevitable conse-

quence of the venue rules in combination with the APA's

command that rules "found to be ... in excess of statutory

jurisdiction" shall be not only "h[e]ld unlawful" but "set

aside." 5 U.S.C. s 706(2)(C).

* * *

In a press release accompanying the adoption of the Tul-

loch Rule, the White House announced: "Congress should

amend the Clean Water Act to make it consistent with the

agencies' rulemaking." White House Office on Environmen-

tal Policy, Protecting America's Wetlands: A Fair, Flexible,

and Effective Approach 23 (Aug. 24, 1993). While remarka-

ble in its candor, the announcement contained a kernel of

truth. If the agencies and NWF believe that the Clean

Water Act inadequately protects wetlands and other natural

resources by insisting upon the presence of an "addition" to

trigger permit requirements, the appropriate body to turn to

is Congress. Without such an amendment, the Act simply

will not accommodate the Tulloch Rule. The judgment of the

district court is

Affirmed.

Silberman, Circuit Judge, concurring: I join the opinion of

the court and write separately only to make explicit what I

think implicit in our opinion. We hold that the Corps's

interpretation of the phrase "addition of any pollutant to

navigable waters" to cover incidental fallback is "unreason-

able," which is the formulation we use when we have first

determined under Chevron that neither the statutory lan-

guage nor legislative history reveals a precise intent with

respect to the issue presented--in other words, we are at the

second step of the now-familiar Chevron Step I and Step II

analysis. See, e.g., Whitecliff, Inc. v. Shalala, 20 F.3d 488

(D.C. Cir. 1994); Fedway Associates, Inc. v. United States

Treasury, 976 F.2d 1416 (D.C. Cir. 1992); Abbott Labs. v.

Young, 920 F.2d 984 (D.C. Cir. 1990); Associated Gas Dis-

tribs. v. FERC, 899 F.2d 1250 (D.C. Cir. 1990). As our

opinion's discussion of prior cases indicates, the word addition

carries both a temporal and geographic ambiguity. If the

material that would otherwise fall back were moved some

distance away and then dropped, it very well might constitute

an "addition." Or if it were held for some time and then

dropped back in the same spot, it might also constitute an

"addition." But the structure of the relevant statutes indi-

cates that it is unreasonable to call incidental fallback an

addition. To do so perforce converts all dredging--which is

regulated under the Rivers and Harbors Act--into discharge

of dredged material which is regulated under the Clean

Water Act.

Moreover, that Congress had in mind either a temporal or

geographic separation between excavation and disposal is

suggested by its requirement that dredged material be dis-

charged at "specified disposal sites," 33 U.S.C. s 1344 (1994),

a term which simply does not fit incidental fallback.

The Corps attempts to avoid these difficulties by asserting

that rock and sand are magically transformed into pollutants

once dredged, so all dredging necessarily results in an addi-

tion of pollutants to navigable waters. But rock and sand

only become pollutants, according to the statute, once they

are "discharged into water." 33 U.S.C. s 1362(6) (1994).

The Corps's approach thus just leads right back to the

definition of discharge.