# Petition for Writ of Certiorari — Slinger Drainage v. Environmental Protection Agency

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2120%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 972

## Text

CEE EEE

04-86 UUL 12 200

No@AAGE OF THE CLERK
3 IN THE
Supreme Court of the United States
SLINGER DRAINAGE,
Petitioner,
V.
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED States Court OF APPEALS FOR THE
District or CoLumBiA CIRCUIT

—_—_—_—_—————_———————————————_—_———_—_—_—_

PETITION FOR A WRIT OF CERTIORARI

C. WILLIAM MICHAELS Gary R. LEIsTico*

1579 Dellsway Road RINKE-NOONAN
Baltimore, Maryland 21286 400 Ist Street South
(410) 321-5770 Suite 700

Wells Fargo Center

St. Cloud, Minnesota 56302
(320) 251-6700

Attorneys for Petitioner

* Counsel of Record

SS a nee en ERR ENR Ae RNR arent
167779 ce

COUNSEL PRESS
(800) 274-3321 * (800) 359-6859

pores

i
QUESTIONS PRESENTED

1. Does Federal Rule of Appellate Procedure 26(a) apply
to limitation periods in Federal statutes, including the
30-day appeal period under 33 U.S.C. § 1319 (Clean Water
Act) for seeking judicial review of a civil penalty, so that the
first day of agency action is not included and if the last day
of the period falls on a Saturday or Sunday, the period is
extended to the following Monday?

2. For calculating the 30-day time period for seeking
judicial review of an agency decision, including a Final
Decision of the Environmental Protection Agency’s
Environmental Appeals Board assessing a civil penalty under
the Clean Water Act, is the date the decision is “issued” the
date appearing on the decision or the date the decision is
sent to counsel and made available to the public?

3. Was Petitioner’s appeal from an civil penalty
assessment by a Final Decision of the Environmental Appeals
Board timely, and did the Court of Appeals for the District
of Columbia Circuit thus err and also fail to follow applicable
case decisions including decisions of that Circuit, in
dismissing the appeal for lack of jurisdiction as untimely?

ii
PARTIES TO THE PROCEEDING

Including the parties named in the caption of this
Petition, the parties are:

Petitioner: Slinger Drainage, Inc., a nongovernmental
corporate party to the proceedings before the Environmental
Protection Agency and the United States Court of Appeals
for the District of Columbia Circuit.

Slinger Drainage, Inc. here discloses that there are no
parent corporations to Slinger Drainage, Inc. and there are
no publicly held companies which own 10 per cent of more
of Slinger Drainage, Inc.’s stock.

Respondent: United States Environmental Protection
Agency.

ili

TABLE OF CONTENTS
Page
Questions Presented ............eeceeeceeeees i
Parties to the Proceeding ..........--.--+eeee- il
Tele CE COMAGMEB 2. ccc cess cccccccecccccvece ill
Table of Cited Authorities .........-.....050- iv
Table of Appendices ...........-.eeeeeeeeeees x
Opinions Below .............eeeeeesesceceees l
Grounds for Jurisdiction ..............2+0ee05: l
Statute and Rules Involved .................+-: 3
Statement of the Case ........cccccccccccccees 3
A. General Background and Description ..... 3
B. Appeal Noted ...........ccececceeecees 7
C. Decisions by District of Columbia Circuit ... 9
Reasons for Granting Writ ...............+++- 12
I. The Court of Appeals for the District of
Columbia Erred When it Determined that
Petitioner’s Appeal from the Final Decision
of the EPA Assessing a Civil Penalty Under
the Clean Water Act Was Untimely ....... 12
A. Application of Rule 26(a) ........... 13
B. When Agency Decision is “Issued”... 25

Conclusion

iv

TABLE OF CITED AUTHORITIES

Page
Supreme Court Cases:
Burnet v. Willingham Loan and Trust Co., 282 U.S.

Pre rer rere. herr P 14
Hubbard v. United States, 514 U.S. 695 (1995) ... 15
Johnson v. Railway Express Agency, Inc., 421 U.S.

PPP er eer eT Teer roe reer rors 15
Jones & Laughlin Steel Corporation v. Gridiron

SE Ch, Ee We DRED tance ciencsaces 14
Missouri v. Jenkins, 495 U.S. 33 (1990) ......... 9
Stone v. Immigration and Naturalization Service,

Tae Ge SD nes beeekvcnaeésabweress 9
Street v. United States, 133 U.S. 299 (1890) ..... 14
Union National Bank v. Lamb, 337 U.S. 38 (1949)

6 es hk pak CNA ETRRES ERE Ae 10, 14, 19
Federal Cases: District Of Columbia Circuit:
Horsehead Resource Development Company, Inc. v.

Environmental Protection Agency, 130 F.3d 1090

CE. Ne es hd ain ee saben eueaie seks 20

In re Butcher, 829 F.2d 596 (6th Cir. 1987),
re Ek eee 22

Cited Authorities
Page

Microwave Communications, Inc. v. Federal
Communications Commission, 515 F.2d 385
(D.C. Cit. 1974) knsswevdcscstvndescisncees 25, 26

National Black Media Coalition v. Federal
Communications Commission, 760 F.2d 1297
(DL. Cle: 19OF) occ ccd decks seven ds Wen sris 19

National Federation of Federal Employees, Local
1300 v. Federal Labor Relations Authority,
No. 85-1541 (D.C. Cir. 1985) .......0ceeeees 11, 20

National Mining Association v. United States Army
Corps of Engineers, 145 F.3d 1399 (D.C. Cir.
| PPC CTT PT oer rr terrier Cry re - 6,7

Southern Pacific Pipe Lines, Inc. v. Department of
Transportation, 796 F.2d 539 (D.C. Cir. 1986)... 26

United Mine Workers of America v. Dole, 870 F.2d
662 (D.C. Cir. 1989) ......... sere eee eee 18, 19, 23

United States v. Carver, 671 F.2d 577 (D.C. Cir.
SE Scnabevewsaauees erent rrr 11,18

Waterway Communications Systems, Inc. v. Federal
Communications Commission, 851 F.2d 401
CD. Cle. 19GG) «oi vaisvne vce s cecssccienanke 19

Western Union Telegraph Co. v. Federal
Communications Commission, 773 F.3d 375
(DL; Cir, 1965) cine is cs tiie scbvce ces edacse 19

vi
Cited Authorities
Page
Othcr Federal Cases:
Allgood v. Elyria United Methodist Home, 904 F.2d
ed A. ee eee 18
American Federation Government Employees v.
Federal Labor Relations Authority, 802 F.2d 47
.> | Errore pe 11, 20, 21
American Mining Congress v. United States Army
Corps of Engineers, 951 F. Supp. 267 (D.D.C.
RODED 6 ccvagéqevcvdsavieekecnenusivetiean 5,6
Anonymous Banks One Through Three v. FDIC, 645
F. Supp. 706 (D.C. Mont. 1986) ............. 25
Bailey v. Faux, 704 F. Supp. 1051 (D.C. Utah 1989)
ecncddavccens éusensenseeauu bs oenuunaeet 18
Bartlik v. United States Department of Labor, 62
F326 863 Gl Cot. IFES) cn cccrivcwvevces 22, 23, 24
Chem-Haulers, Inc. v. United States, 536 F.2d 610
(SR CRE. IGG 0.0 kn ceaws wnecane ctnsaeasves 26
Environmental Defense Fund v. Thomas, 657
F. Samp. 363 COAG, BGG icc ccciccavasdess 24
Flanagan v. Johnson, 154 F.3d 196 (Sth Cir. 1998)
pcececatabssbbatshshdbabh ess dhdaeeemoene 17

Frey v. Woodard, 748 F.2d 173 (3d Cir. 1984).... 16

es ey |

vii

Cited Authorities

Page

Hilliard v. United States Postal Service, 814 F.2d
PED GUNG EDGED ciccccccecccccccsccca, 22

Lee v. United States, 977 F.2d 551 (11th Cir. 1992), -

COE, Gag Be i TD oo ook. ccacctiwvevexi: 25

Littrell v. Shalala, 898 F. Supp. $82 (S.D. Oh. 1995)
Witt Phe cee ashe Amawad Saws dsb okan tcl k 24

Maahs v. United States, 840 F.2d 863 (11th Cir.
PEE ob bev db tide Grek Bb ack de 21

Moore v. United States, 173 F.3d 1131 (8th Cir.
i EE OE Pea See ane ee ieee 18

North Carolina Wildlife Federation v. Tulloch
(No. C90-713-CV-5-BO, E.D.N.C. 1992) ... 4, 5,6, 7,9

Oedraogo v. Immigration and Naturalization
Service, 864 F.3d 376 (Sth Cir. 1989) ......... 26

Prince v. United States, 185 F. Supp. 269 (D.C. Wis.
WEE 5460 0016ws ts obdheddpebeek nin dase. 16

Reid v. Universal Maritime Service Corp., 41 F.3d
Pee: Chas os coe ee 25

Rust v. Quality Car Corral, Inc., 614 F.2d 1118
i BSN San Ua rp a lcs a ao ma 22

Tribune v. United States, 826 F.2d 633 (7th Cir.
SPE Walsenusadebcedsccsi.. Gece 18

vill

Cited Authorities
Page

United States v. Huebner, 752 F.2d 1235 (7th Cir.
aE ee eRe Ae EOP 6

Wilson v. Southern Railway Co., 147 F.2d 165
ot Rr errr rey Pane 16

Zaluski v. Immigration and Naturalization Service,
ee a ROE we btecccedeschade'ss 26

- Other Authorities:

Wright & Miller, Federal Practice & Procedure,

SRO ra horue VEiw et cadens ib eseswaakahes 15
Wright & Miller, Federal Practice & Procedure,

O ROE widicklewwacd se dndtse Kessdeas cents 16
Be Gs OP REED is 0 ck cnc dvenbecduceawss 5
GCP OEE 8c ccksncacetwh ects stsaeesesan 2,8
SOC SE BE PNA Ron kectdekacvassivcees 5,6
GO CER: BASSAI 6c ccccsccccscevvcces 7
Statutes and Rules:

PRT WU nod ced East hover aceidbntesd>s 20
ae SUE cece eebcivcdéresibecsdasents 15

RUSH 4M; 14

ix

Cited Authorities

Page
OE ORB a ees Trees eRe me 14
y Ee 8 i |: eee er ee 16
Pe Sh OD Unk ek ae iad Kaekencaeeis 18
BP a EE 855A Sew Ua ed bie endaeecen passim
ein oe es a So 4
ee as PUES 0d oo co pkad besa wesaneu’ 22
ee es WP EES evn b cad bck ikas cance was 20
47 U.S.C. § 402(b) a ee hh wanes dainale yak nk 19
Federal Rule of Appellate Procedure 26(a) ...... passim

Federal Rule of Criminal Procedure 45(a) ....... 18

x

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court
Of Appeals For The District Of Columbia Circuit
Dated And Decided January 30, 2001 .........

Appendix B — Final Decision Of The Environmental
Appeals Board, United States Environmental
Protection Agency Dated And Decided September
rE POOP Ee Cee Pee OCIS E TT Pore er

Appendix C — Initial Decision Of The United States
Environmental Protection Agency Dated
September 14, 1998 And Filed September 17,
SN os wes Nala bow Noa aban so SER ae eee eee es

Appendix D — Per Curiam Order And Memorandum
Of The United States Court Of Appeals For The
District Of Columbia Circuit Denying Petition For
Rehearing Dated And Filed April 13, 2001

Appendix E — Per Curiam Order Of The United
States Court Of Appeals For The District Of
Columbia Circuit Denying Petition For Rehearing
En Banc And Statement Of Circuit Judge
Williams Dissenting From The Denial Of
Rehearing En Banc Dated And Filed April 13,
PE BUS GAUSENG AA SaaS Ade Rane eee eees

Appendix F—Pertinent Portions Of Relevant
PE PEE Pr Ee ee Cee

Page

la

6a

47a

66a

69a

1

SLINGER DRAINAGE, Petitioner, by undersigned
counsel, under appropriate rules of this Court, requests that
this Court issue a writ of certiorari to the United States Court
of Appeals for the District of Columbia Circuit.

OPINIONS BELOW

The decisions of the District of Columbia Court of
Appeals denying Petitioner’s requests for rehearing and
suggestion for rehearing en banc (No. 99-1433) are dated
April 13, 2001. [Appendix D and Appendix E].

The decision of the District of Columbia Court
of Appeals finding Petitioner’s appeal was untimely
and dismissing the appeal for lack of jurisdiction, is dated
January 30, 2001. The decision is reported at 237 F.3d 681
(D.C. Cir. 2001). [Appendix A].

The Final Decision of the Environmental Appeals Board
for the Environmental Protection Agency is dated September
29, 1999, but was sent to counsel and posted on September
30, 1999 (Hon. Judges Scott C. Fulton, Ronald L. McCallum,
and Kathie A. Stien). (No. 5-CWA-97-022). The Opinion can
be found on the EPA Web Site. [Appendix B].

The Initial Decision of the Environmental Protection
Agency (Administrative Law Judge Edward J. Kuhimann),
finding Petitioner Slinger Drainage in violation of dredge-
and-fill provisions of the Clean Water Act (Section 404)
and assessing a civil penalty, is dated September 14, 1998.
(No. 5-CWA-97-022). [Appendix C].

GROUNDS FOR JURISDICTION

Subject matter jurisdiction for the Court of Appeals was
invoked under 33 U.S.C. § 1319(g)(8) (Clean Water Act,
appeal from Class II civil penalty). The appeal was from a

2

Final Decision of the Environmental Appeals Board (“EAB”’)
of the Environmental Protection Agency (“EPA”) dated
September 29, 1999 and posted September 30, 1999.

On October 14, 1998, Petitioner appealed to the EAB
under 40 C.F.R. § 22.27(c) from the Initial Decision of the
EPA (Administrative Law Judge), entered September 17,
1998. That Initial Decision found Petitioner violated the
Clean Water Act Section 404 and assessed a civil penalty of
$90,000 (see 33 U.S.C. § 1319(g)(2)(B), authorizing penalties
up to $125,000). (Petitioner sought and was granted an
extension of time to appeal to the EAB.)

On November 1, 1999, Petitioner appealed from the EAB
Final Decision to the Court of Appeals for the District of
Columbia Circuit. Under 33 U.S.C. § 1319(g)(8), an appeal
of a Clean Water Act Class II penalty is taken to that Court
“within 30 days beginning from the date of issuance of the
final agency decision.”

By Order of February 15, 2000, the Circuit Court on its
own motion, inquired as to whether Petitioner’s November
1, 2001 appeal from the agency Final Decision dated
September 29, 2001, was timely. The Court issued a show
cause order as to why the appeal should not be dismissed for
lack of jurisdiction. On consideration of responses to
the show cause order, the Court discharged that order, on
June 12, 2000, directing discussion by the parties in their
briefs as to timeliness of the appeal in addition to the merits.
Briefs were filed and the matter was argued.

On January 30, 2001, the District of Columbia Circuit
issued an Opinion determining Petitioner’s appeal was
untimely and dismissing the appeal for lack of jurisdiction.
By order of the same date, the Court withheld issuance of
the mandate until seven days after disposition of any timely

filed petition for rehearing.

seit momma manana IM we seen

3

On March 15, 2001, Petitioner sought rehearing with a
suggestion for rehearing en banc. On April 13, 2001, the
Court denied rehearing and suggestion for rehearing en banc.
A dissent was filed from the denial of rehearing en banc
(Williams, J.). [Appendix D and Appendix E]. On April 20,
2001, Petitioner submitted a motion to stay issuance of the
mandate, which was granted on May 11, 2001, the mandate
withheld through July 13, 2001.

Jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1). Under Supreme Court Rule 13.1 and 13.3, this
Petition is filed within 90 days of the Court of Appeals
decision of April 13, 2001, denying Petitioner’s timely filed
petition for rehearing.

STATUTE AND RULES INVOLVED

33 U.S.C. § 1319(g)(8)
Federal Rule of Appellate Procedure 26(a)
Federal Rule of Civil Procedure 6(a)
[Appendix F]

STATEMENT OF THE CASE
A. General Background and Description

_In July, 1994, Petitioner Slinger Drainage, Inc.
(“Petitioner” or “Slinger Drainage”) performed tiling work
on property owned by Mr. Dennis Shoup in Dodge County,
Wisconsin. The project involved laying approximately
26,000 feet of tile under the soil, on approximately 50 acres
of the northern portion of the site, which consists of more
than 100 acres.

The tiling project, completed in that month, was intended
to drain water collected in the tile into a ditch. The tile was
installed by using a Hoes Trenching Machine, which places

4

tile in the ground by chainsaw type blade on a circulating
chain to dig a trench. About 50 percent of the soil is replaced
in the process and the remaining soil is placed momentarily
on the side of the trench, but concave disks at the back of the
trenching machine return this remaining soil to the trench in
the same process. No soil or fill material was brought onto
the site by Slinger Drainage. No soil or other fill material
was removed from a non-wetland portion of the site and
relocated into a wetland portion.

Slinger Drainage initially was contacted by letter of
April 24, 1990 by the Corps of Engineers, informing it that
the tile and trenching work had not been previously
authorized under Section 404 of the Clean Water Act (CWA).
The letter indicated that the work, without a Corps
permit under the CWA, violated the Act (for Section 404
see 33 U.S.C. § 1344). In March, 1995, Slinger Drainage
was served with an administrative compliance order requiring
certain restoration activities for the site. Slinger Drainage
complied with these requirements.

On November 22, 1997, EPA Region V filed an
administrative complaint against Slinger Drainage for
violating the Clean Water Act in not obtaining a permit before
conducting the trench and tiling activity on the site.
The complaint alleged the trenching process resulted in a
“discharge” of pollutants into waters of the United States.
A penalty of $90,000 was proposed. Slinger Drainage
answered the complaint and denied that any Clean Water Act
violation was involved.

Petitioner’s denial of wrongdoing under CWA § 404 was
based in part on the litigation in North Carolina Wildlife
Federation v. Tulloch (No. C90-713-CV-5-BO, E.D.N.C.
1992). That litigation was initiated by environmental groups
against the EPA, the Corps, and two landowners, alleging
CWA § 404 violations as to landclearing and excavation

5

activities on that site. The matter was settled with an EPA
agreement to amend regulations subjecting landclearing and
excavation to further regulation.

The settlement agreement set out the text of the proposed
rule, which was published on June 16, 1992. (57 Fed. Reg.
26,894 (1992)). On June 25, 1993, the EPA and the Corps
adopted a final rule substantially identical to the proposed
rule which was part of the Tulloch settlement. This “Tulloch”
rule, as it is known, expanded the definition of a discharge
of materials into navigable waters (prohibited by CWA § 404
unless the Corps has issued a permit for such activity) to
include “any additional of dredged material into, including
any redeposit of dredged material within the waters of the
United States.” Under this rule, a CWA violation can occur
by any redeposit of dredged material which is “incidental to
any activity, including mechanized landclearing, ditching,
channelization, or other excavation.” 33 C.F.R. § 323.2(d)(1)
and 40 C.F.R. § 232.2. By this regulation, a CWA permit is
required for all mechanized —! ditching, or
channelization in wetlands.

Petitioner contends the Tulloch rule is too broad and
impermissibly extends the reach of the EPA and the Corps
into activity not resulting in the deposit of any material into
navigable waters. Congress has not amended the CWA to
reflect this Tulloch regulation, despite EPA’s suggestion that
it do so. Further, when the Tulloch rule was challenged in an
action filed by certain trade associations, the United States
District Court for the District of Columbia invalidated the
tule, finding it exceed the agencies’ CWA authority and issued
a permanent injunction against agency enforcement of the
Tulloch rule against the parties. See American Mining
Congress v. United States Army Corps of Engineers,
951 F. Supp. 267 (D.D.C. 1997) (“AMC”). That decision

6

was affirmed by the District of Columbia Circuit. National
Mining Association v. United States Army Corps of
Engineers, 145 F.3d 1399 (D.C. Cir. 1998) (“NMA”).

On this basis, Slinger Drainage maintained that its tiling
activity on the Dodge County site was not within EPA or
Corps CWA jurisdiction and otherwise did not violate the
Clean Water Act. Further, Slinger Drainage pointed out that
the Hoes Trenching Machine used in the operation redeposits
the soil into the trench, so soil movement is incidental to
placing the tile. 7

However, the EPA AL] in the Initial Decision found that
the “redeposit of materials excavated from a wetland is the
addition of pollutants under the CWA.” See United States v.
Huebner, 752 F.2d 1235 (7th Cir. 1985). [See Appendix C].
The ALJ applied the regulation and determined that the
trenching activities by Slinger Drainage did violate the Act.
According to the ALJ, the Slinger Drainage activity “was
intended to, and did, change the use of the land from wetland
to farmland.” [See Appendix C at 56a-57a]. The ALJ also
found the Tulloch rule and the later decisions of AMC and
NMA were not involved, stating, “That rule was not at issue
in this proceeding.” Reviewing factors related to the penalty,
the ALJ found appropriate a civil penalty of $90,000.
[Appendix C at 57a, et seq.].

Slinger Drainage appealed to the Environmental Appeals
Board (EAB). In a Final Decision dated September 29, 1999,
the EAB affirmed the ALJ and the penalty figure. [Appendix
B at 6a-46a]. The Final Decision stated “it is beyond cavil
that the broad definition of ‘discharge of dredged material,’
40 C.F.R. § 232.2, encompasses at least certain form
of wetlands drainage activities that involve a discharge
of dredged material.” As stated in the regulation,
“minor drainage expressly excludes conversion of wetlands

7

to non-wetlands, for the obvious reason that the drainage in
that instance is patently not minor, given its effect on the
wetland.” See 40 C.F.R. § 232.3(d)(3)(ii).

The EAB reviewed the Tulloch rule in detail and
the background and circumstances of drainage activities
on wetlands. It also discussed at length the NMA decision.
The EAB stated NMA involved an aspect of the Tulloch rule
not at issue here, was intended to be a narrow ruling, and in
any case emphasized concern over proper regulation of
drainage or similar activities on wetlands. Thus, “it seems
apparent that NMA is dealing with a distinctly different fact
and analytical pattern than is presented in the case at hand.”
The EAB found the NMA decision did not control. [42a].

Reviewing other pertinent judicial decisions, the EAB
further decided there was no regulatory or judicial
impediment to affirming the ALJ’s finding. The EAB thus
found Slinger Drainage had violated the Clean Water Act
and affirmed the $90,000 civil penalty.

B. Appeal Noted

Clean Water Act § 309(g) (see 33 U.S.C. § 1319)
concerns administrative penalty orders, including judicial
review. Under § 309(g)(5), an EPA penalty order “shall
become final 30 days after its issuance unless a petition for
review is filed under paragraph (8) or a hearing is requested
under paragraph (4)(c).” (The hearing procedures of
§ 309(g)(4)(c) are not involved here.)

As provided by § 309(g)(8) (see 33 U.S.C. § 1319(g)(8)),
a Class II penalty is appealed directly to the United States
Court of Appeals for the District of Columbia Circuit.
The appeal is taken “by filing a notice of appeal in such court
within the 30-day period beginning on the date the civil
penalty order is issued.” [Emphasis supplied]. See 33 U.S.C.

8

§ 1319(g)(8)(B). Petitioner contends the EAB decision was
“issued” when it was sent to parties and posted or otherwise
first made available to the public, not when the opinion is
dated. Petitioner also contends the statutory language does
not require that the actual date of issuance be counted when
computing the 30 day appeal time period.

EPA regulations dealing with appeals of administrative
penalty orders under the Act complement this approach.
See 40 C.F.R. § 22.27. The initial decision of an
administrative law judge “shall become the final of the
Environmental Appeals Board within forty-five (45) days
after its service upon the parties,” unless either a party
appeals to the full EAB or the EAB decides on its own to
review the matter. § 22.27(c) [emphasis supplied]. Under an
amendment to the regulation adopted before the EAB final
decision was issued here (see Federal Register, Vol. 64,
No. 141, July 23, 1999 at 40138, especially 40185-86),
an initial decision appealed to the EAB “shall not be final or
operative pending the Environmental Appeals Board’s
issuance of a final order.”

As noted, the EAB’s Final Decision was dated September
29, 1999. [6a]. However, the decision was not sent to counsel
and was not posted on EPA’s Web site, and thus first made
available to the public, until the following day: September
30, 1999. Slinger Drainage therefore had 30 days from
September 30, 1999, not including that date, to appeal to the
District of Columbia Circuit. Although Petitioner could have
filed its appeal sooner, under the circumstances the appeal
was not filed until the last day.

Counting 30 days from September 30 — which is the
date Petitioner contends the EAB’s decision was “issued”
rather than the date appearing on the opinion of September
29, 1999 — and not including the September 30th date itself,
the 30th day falls on the weekend of October 30-31, 1999.

9

Applying Federal Rule of Appellate Procedure 26(a), if the
last day of the appeal time period falls on a weekend day or
holiday, the last day becomes the next business day. Thus,
the last day to file the appeal would be the following Monday,
November 1, 1999. That is the date on which Slinger
Drainage 's appeal was filed.

C. Decision by District of Columbia Circuit

The merits of this appeal present critical questions of
the extent of EPA and Corps authority over certain trenching
or drainage activity in wetlands and the validity and scope
of Tulloch rule. Nevertheless, the merits of this appeal were
not reached by the District of Columbia Circuit. Observing
that Slinger Drainage had appealed on November 1, 1999
from an EAB Final Decision dated September 29, 1999, the
District of Columbia Circuit, on its own motion, raised the
issue of a possible untimely appeal. The Court issued a show
cause order and otherwise directed that the parties address
in their briefs the issue of the timeliness of the appeal as
well as the merits.

On January 30, 2001, the Circuit Court dismissed the
appeal for lack of jurisdiction. [App. 1a-5a]. The Court
determined the last day to file the appeal was Friday, October
29, rather than Monday, November 1. voting this Court’s
decision of Stone v. Immigration and Naturalization Service,
514 U.S. 386 (1995) and Missouri v. Jenkins, 495 U.S.
33 (1990), the Circuit Court observed that judicial review
provisions are jurisdictional and must be construed with
“strict fidelity” to their terms.

The Court assumed without deciding that the EAB Final
Decision was issued on September 30, 1999 (rather than on
the opinion’s date of September 29, 1999), as Petitioner has
contended. Yet, the Court still decided that the appeal was
untimely, because it determined Rule 26(a) did not apply to

10

the statutory 30-day appeal time period. Thus the date of the
decision is included in the 30 day calculation and the appeal
period is not extended to the following business day if the
last day of the period falls on a weekend day or holiday.
The Court stated [App. 4a]:

Rule 26(a), however, does not apply when
Congress has specified a particular method of
counting in the statute itself and there is no
indication of a contrary congressional intention.
This was evident in United Mine Workers of
America v. Dole, 870 F.3d 662, 665 (D.C. Cir.
1989), where the court found that Rule 26(a)
applied to the requirement in the Mine Act,
30 U.S.C. § 811(d) (1994), that a petition
challenging a new standard be filed “prior to the
sixtieth day after such standard is promulgated.”
The court explained that, because the cited statute
made “no separate provision for the computation
of time,” “Congress intended its time periods to
be computed in accordance with the federal rule.”
United Mine Workers, 870 F.2d at 665.

The Court stated that the Federal Rules are utilized in
calculating a certain statutory time period in the absence of
a statute-specific provision or indication by Congress in a
given situation that it did not intend the rules to apply.
See Union National Bank v. Lamb, 337 U.S. 38 (1949).
In the present matter, “the statute currently before us clearly
establishes a separate provision” for calculating the 30 day
appeal time period. The appeal must be filed “within the
30-day period beginning on the date the civil penalty issued.”
33 U.S.C. § 1319(g)(8)(B). [App. 5a, emphasis retained].
The Court stated “there is nothing to suggest that Congress
did not intend precisely what it said in the statute.”

11

Consequently, under this view of § 1319(g) the date of
issuance of the EAB Final Decision (which the Court found
to be September 30) is counted in the 30-day appeal period
and the appeal must be filed “within” that period. Because
Rule 26(a) does not apply, the appeal could not be filed on
the following business day if the appeal period ends on a
weekend or holiday. Under this approach, the last day to file
the appeal was Friday, October 29. An appeal filed Monday,
November | would be too late. Accordingly, the appeal was
dismissed for lack of jurisdiction.

Petitioner sought rehearing and suggestion for rehearing
en banc. Petitioner stated the Court’s interpretation of
§ 1319(g) was too narrow, the decision contravened other
decisions on the issue such as American Federation of
Government Employees v. Federal Labor Relations Authority,
802 F.3d 47 (2d Cir. 1986), and was contrary to other District
of Columbia Circuit opinions, such as United States v.
Carver, 671 F.2d 577 (D.C. Cir. 1982).

On April 13, 2001, the Circuit Court denied the petition
for rehearing and for rehearing en banc. [App. 66a-68a].
The Court stated Carver did not control because that case
“did not address the question presented here—a statutory
judicial review provision in which Congress has mandated a
particular method of counting.” The Court also stated another
D.C. Circuit unreported opinion, National Federation of
Federal Employees, Local 1300 v. Federal Labor Relations
Authority, did not control because it did not deal with the
same question and was unpublished.

There was a dissent from the decision denying the
petition for rehearing en banc (Williams, J.). [App. 69a-7 1a].
The dissent said the statute and Rule 26(a) can be put together
“by saying that the substantive statute identifies the ‘day that
begins the period’ as the issuance date; Rule 26(a) tells us to
exclude that day.” The dissent noted American Federation

12

to the effect that the 60 day period considered by that court
was found to begin on the date the order is issued “but does
not direct that the date of issuance be counted as part of that
period.” [App. 71a, emphasis retained].

Petitioner now seeks review by this Court.
REASONS FOR GRANTING WRIT

I. THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA ERRED WHEN IT DETERMINED
THAT PETITIONER’S APPEAL FROM THE
FINAL DECISION OF THE EPA ASSESSING A
CIVIL PENALTY UNDER THE CLEAN WATER
ACT WAS UNTIMELY.

This matter presents significant issues of concern to this
Court in its role of providing oversight and guidance in
applying the Federal Rules. Not only did the District of
Columbia Circuit err in ruling Petitioner’s appeal was
untimely, but also the related questions of computing
statutory time periods and the application of Federal Rule of
Appellate Procedure 26(a) have been the subject of differing
conclusions by other Federal courts. This Court should grant
this petition to clarify that Rule 26(a) applies to statutory
time limits for appeals to Federal courts from administrative
agencies, that the Rule applied here, and thus that Petitioner’s
appeal to the District of Columbia Circuit from the agency
decision assessing the Clean Water Act Class II civil penalty
was timely.

Petitioner requests that this Court clarify two central
considerations:

1. Rule 26(a) applies to computing statutory time periods
in Federal statutes, including the 30-day time period in
33 U.S.C. § 1319(g)(8) for seeking judicial review of a final

13

agency decision assessing a civil penalty, which states the
appeal is to be filed “within 30 days beginning on the date
the civil penalty order is issued.”

2. The date that an agency decision is “issued” for
purposes of computing the appeal time period is the date
that the decision is first sent to counsel and made available
to the public, not the date of the decision itself, if those dates
are different.

A. Application of Rule 26(a)

If Rule 26(a) applies to the appeal period under
§ 1319(g)(8), then the date of “issuance” of the penalty order
is not counted. The statute’s language “beginning on the date
the civil penalty order is issued” is viewed as setting the
starting date for the time period but not requiring that such
date be included in the calculation. Also, if Rule 26(a) applies
and the /ast day of the period is a weekend day or holiday,
the appeal is timely if filed the next business day.

There was no reason not to apply Rule 26(a) to this appeal
period. The Rule can apply to the 30-day appeal time period
in § 1319(g)(8) without violating any statutory intent or
purpose. The date of issuance of the civil penalty order is
not counted in computing the appeal period and the last filing
day is the following business day if the last day of period
falls on a weekend day or holiday. The Final Decision
assessing the Class II civil penalty was “issued” on September
30, 1999 (as the Circuit Court correctly determined). If so
and if Rule 26(a) applies, Petitioner’s appeal filed on
November 1, 1999 is timely.

It appears this Court has not recently ruled upon the
specifics of applying Rule 26(a) to appeal time periods or
decided on what date a certain administrative order is deemed

14

“issued” for purposes of computing such time periods.
But decisions of this Court indicate that applying Rule 26(a)
is not precluded here.

In Jones & Laughlin Steel Corporation v. Gridiron Steel
Co., 383 U.S. 32 (1965), this Court applied Federal Rule of
Civil Procedure 6(a) (similar to FRAP 26(a)), to find that
the last day of an appeal period (under 28 U.S.C. § 2107)
was the following business day when the last day fell on a
Saturday, despite the fact that the Court of Appeals had
directed the clerk's office to be open for business on Saturday
mornings. The Court clearly indicated by this statement that
the Federal Rules provisions for computing time periods are
to be applied comprehensively for the benefit of litigants.
A similar statement by this Court is found in Street v. United
States, 133 U.S. 299 (1890) (power to be exercised or action
to be taken up to and including a given day of a month, may
be exercised on the succeeding day if the last day falls on a
Sunday). -

In Burnet v. Willingham Loan and Trust Co., 282 U.S.
437 (1931), in a tax matter, the Court considered the time
within which, after the date of filing of an income tax return,
an additional assessment may be made. The relevant language
was “within five years after the return was due or was made.”
This later was amended to four years. The Court held that in
computing the time period, the day on which the event
happened is to be excluded. The Court commented,
“The fiction that a day has no parts is a figurative recognition
of the fact that people do not trouble themselves without
reason about a nicer division of time.”

Further, in the often-cited decision of Union National
Bank v. Lamb, 337 U.S. 38 (1949), this Court applied
Rule 6(a) to the time period for appealing to this Court from
a State supreme court under 28 U.S.C. § 2101(c). The Court
found that under Rule 6(a) the last day for noting the appeal

15

can be the following business day, if the appeal time period
expired on a weekend day or holiday. The Court noted:

[Rule 6] provides the method for computation of time
prescribed or allowed not only by the rules or by order
of court but by ‘any applicable statute.’ Since the rule
had the concurrence of Congress, and since no contrary
policy is expressed in the statute governing this review,
we think that the considerations of liberality and
leniency which find expression in Rule 6(a) are equally
applicable to 28 U.S.C. § 2101(c). The appeal therefore
did not fail for lack of timeliness.

Subsequently, in Johnson v. Railway Express Agency,
Inc., 421 U.S. 454 (1975), this Court stated that statutes of
limitations are to be interpreted with reference to other
provisions of law. It noted that any limitation
period “is understood fully only in the context of the various
circumstances that suspend it from running against a
particular cause of action.” It continued, “In virtually
all statutes of limitations the chronological length of
the limitation period is interrelated with provisions
regarding tolling, revival, and questions of application.”
421 U.S. at 463-64.

Also, in Hubbard v. United States, 514 U.S. 695 (1995),
involving whether a Federal court is a “department or agency”
within the meaning of 18 U.S.C. § 1001 (prohibiting false
statements in matter within jurisdiction of federal department
or agency) this Court recently commented that courts should
adopt a “straightforward” interpretation of statutes.
See discussion at 514 U.S. at 700-702.

General principles for computing time and applying the
Federal Rules are consistent with these indications by this
Court. As stated in Wright & Miller, Federal Practice &
Procedure, § 1162, when computing any period of time other

16

than periods of less than eleven days, “under the Federal
Rules of Civil Procedure, the local rules of any district court,
an order of court, or any applicable statute, the day of the
act, event, or default from which the period begins to run is
excluded.” The last day of the period is included, “unless it
is a Saturday, Sunday, or legal holiday, in which case the
period is not completed until the end of the next day that is
not a Saturday.” See Frey v. Woodard, 748 F.2d 173 (3d Cir..
1984) (administrative claim under Federal Tort Claims Act
was timely when filed the next business day after the Saturday
on which the appeal period expired, even though office to
which claim was presented was open for business
on Saturday), and Prince v. United States, 185 F. Supp. 269
(D.C. Wis. 1960) (time period under 28 U.S.C. § 2401(b) as
to time limit for filing tort claim against United States, day
of act or event is excluded).

Concerning applying Rule 6(a) to statutory time periods
including periods of limitation, Wright & Miller (see § 1163)
further note that while there is authority to the contrary among
the Federal courts, the majority rule is to apply Rule 6 to
exclude a weekend day or holiday from the time computation
if the last day of the period falls on such a day.
“This conclusion seems to be based on the premise that
Rule 6 expresses the liberal spirit of the federal rules and
their quest to avoid ‘setting traps for the unwary’-and that
this spirit should be employed in construing statutes of
limitations.” An alternative argument is that “the computation
provisions of Rule 6 inherently are fair and practical.”
In addition, “it has been said that the rule ‘merely declares a
rule of statutory construction having widespread judicial
sanction, federal as well as state, rather than being an
enlargement or modification of the time provisions to which
it is applied.’” Citing, e.g., Wilson v. Southern Railway Co.,
147 F.2d 165 (Sth Cir. 1945).

17

More to the point here, the Section adds,

It is difficult to perceive how a legitimate
governmental interest would be prejudiced by
application of the Rule 6 exclusion of final
Saturdays, Sundays, and legal holidays to federal
statutes of limitations. This exclusion would delay
the expiration of a given period by, at most, two
or three days, which is unlikely to inconvenience
or prejudice anyone.

In addition, “giving the scope of Rule 6 a broad interpretation
would lead to a uniform system of computing time under all
federal statutes, an objective that seems desirable.”

These overriding principles should have been applied
by the District of Columbia Circuit. It is difficult to find any
expression of legislative policy in § 1319(g)(8) so strong as
to prevent application of Rule 26(a) to the 30-day appeal
time period, even if the statute states an appeal is to be filed
“within” 30 days and the period begins “on the date the civil
penalty order is issued.” As pointed out by the dissent in the
Circuit Court’s order denying the petition for rehearing
en banc, the statute and Rule 26(a) can be read together.
The statute simply sets the time frame for the appeal, as the
date the decision is issued. It does not expressly require that
this date be included in computing the appeal time. Nor is
there anything in § 1319(g)(8) expressly precluding
application of Rule 26(a).

Other Federal courts considering statutory time periods
generally have applied Rule 6(a) or Rule 26(a)’s provisions
of not counting the initial day of an act or event from which
a certain action is to be taken or of extending the last day for
such action to the following business day if the time period
falls on a weekend day or holiday. Such cases are numerous.
See, e.g., Flanagan v. Johnse7. 154 F.3d 196 (Sth Cir. 1998)

18

(petition under Antiterrorism and Effective Death Penalty
Act); Allgood v. Elyria United Methodist Home, 904 F.2d
373 (6th Cir. 1990) (generally); Tribune v. United States, 826
F.2d 633 (7th Cir. 1987) (six month limitations period for
actions under Federal Tort Claims Act, which is to run from
day agency denies claim, is counted from day after agency
mails its final denial of claim, to day before the same calendar
date six months later); Moore v. United States, 173 F.3d 1131
(8th Cir. 1999) (also under the AEDPA), and Bailey v. Faux,
704 F. Supp. 1051 (D.C. Utah 1989) (applying Rule 6(a) to
Miller Act time period).

It would be of particular concern to this Court, as to the
District of Columbia Circuit’s decision, that the decision
contravenes not only decisions of other Federal courts
applying Rule 26(a) (or Rule 6(a), for that matter) to statutory
time periods, but also contravenes other District of Columbia
Circuit decisions. In United States v. Carver, 671 F.2d 577
(D.C. Cir. 1982), the District of Columbia Circuit applied
Federal Rule of Criminal Procedure 45(a) to the 18-month
period of service for a grand jury. Here, denying the petition
for rehearing, the Court distinguished Carver by stating the
case did not involve a statutory time period “which has
mandated a particular method of counting.” Yet, there is no

express statement in § 1319(g)(8) that the 30 day time period =

must be calculated differently from the standard means of
calculating time provided in Rule 26(a).

In United Mine Workers of America v. Dole, 870 F.2d
662 (D.C. Cir. 1989), the District of Columbia Circuit found
Rule 26(a) applied to the 60 day time period for challenging
a new standard under the Federal Mine Safety and Health
Act (30 U.S.C. § 811(d)). The statute requires any challenge
to be filed “prior to the sixtieth day after such standard is
promulgated.” The court stated that time periods, including
jurisdictional time periods, are to be construed in accordance
with the Rule. The Court commented that the statute “makes

si a Oe i

19

no separate provision for the computation of time and was
enacted subsequent to the adoption of Rule 26(a).” Therefore,
“Congress intended its time periods to be computing in.
accordance with the federal rule.” Citing Union National
Bank, supra. The United Mine Workers Court added,
“Statutory provisions laying down time periods for taking
appeal, like any other enactments, must be interpreted and
applied by courts; in so doing we use the federal rules
as guides.” |

Also, in National Black Media Coalition v. Federal
Communications Commission, 760 F.2d 1297 (D.C. Cir.
1985), considering the time limit for appealing from orders
of the FCC under 47 U.S.C. § 402(b), the District of
Columbia Circuit found the appeal time period began to run
from the date following the release date of the order at issue.
The statute provides an appeal is to be filed “within thirty
days from the date upon which public notice is given of the
decision or order complained of.” The release date of FCC
order (refusing to designate for hearing an application for
assignment of a television license) was August 17, 1983.
The date of public notice of that order was August 18.
The court found the first day for counting the appeal period
was August 19. Also, since the appeal period fell on a

__weekend day (September-17), thelast day to file the appeal

was the next business day, September 19.

Along the same lines, in Western Union Telegraph Co.
v. Federal Communications Commission, 773 F.3d 375
(D.C. Cir. 1985), the court considered a statutory provision
requiring a petition for review of a final FCC order to be
filed “within 60 days” after entry of the order. The court found
the statute allowed for a “filing window.” That is, the statute
did not state a petition for review must be filed “no later”
than 60 days after the entry. See Waterway Communications
Systems, Inc. v. Federal Communications Commission,
851 F.2d 401 (D.C. Cir. 1988) (to the same effect).

20

Likewise, in Horsehead Resource Development
Company, Inc. v: Environmental Protection Agency, 130 F.3d
1090 (D.C. Cir. 1997), the same Circuit Court determined,
when considering the 90-day statutory time period for filing
a petition for review of an EPA regulation under the Resource
Conservation and Recovery Act (42 U.S.C. § 6976(a)(1)),
that the time period creates a “filing window” and not a filing
deadline. The court further stated that the “promulgation”
of the regulation for purposes of the time period was the
date the regulation appeared in the Federal Register.
The “within” language of the statute was viewed as setting a
filing window and not a deadline which would prevent any
standard computation of the time period.

Other Federal decisions are in accord with these
principles and underscore the incorrectness of the District
of Columbia Circuit’s decision here. The Second Circuit, in
American Federation Government Employees v. Federal
Labor Relations Authority, 802 F.2d 47 (2d Cir. 1986),
considered the time period for review of final orders of the
FLRA under 5 U.S.C. § 7123. The statute states an appeal is
to be filed “during the 60-day period beginning on the date
on which the order was issued.” The court specifically
considered whether, in computing the appeal time period,
the actual date of issuance of the order is included. In the
case before it, if the date of issuance was included, the appeal
would not be timely. Drawing on decisions of the District of
Columbia Circuit (National Federation of Federal
Employees, Local 1300 v. Federal Labor Relations Authority,
No. 85-1541 (D.C. Cir. 1985) (unreported)) as well as Carver,
the American Federation court applied Rule 26(a) to the time
period, finding that the statutory language does not prevent
computing the time period by means of excluding the actual
date of issuance of the order. The Court stated [802 F.2d at
48, citation omitted]:

a ee OP ths -_

21

We agree with our District of Columbia
circuit colleagues that a petition filed on the 60th
day after the date of issuance of the FLRA’s order
should not be counted. The statute provides for a
“60-day period,” not 59 days plus some portion
of the date of issuance. If, hypothetically, section
7123(a) provided for 1-day period, it seems clear
than a filing on the next day after issuance would
be timely.

The Court added:

Indeed, it would offend our notions of both justice
and common sense to hold that the actual amount of
time available to petition for review was open to the
vagaries of when during the day the authority issued
its order. Therefore, unless we were to require that the
period extended to the corresponding hour and minute
of the next day — which undoubtedly would draw us
into a morass of picayune challenges — the following
day would be the first day in the calculation. Logically,
then, the 60-day period here should be determined no
differently.

More directly to the issues here, the American Federation
court stated that the statute “declares that the 60-day period
begins on the date the order is issued, but does not direct
that the date of issuance be counted as part of that period.”
The Court held that Congress “did not mean to have the date
of issuance counted in determining the timeliness of a petition
for review under section 7123(a).” In so holding, “we note
that our conclusion is in line with our own rules of appellate
procedure, see Fed. R. App. P. 26(a), and comports with the
traditional rule for computing periods of time, which excludes
the day of the triggering event.” See generally, Maahs v.
United States, 840 F.2d 863 (11th Cir. 1988), stating
Rule 6(a) (and presumably Rule 26(a), applies to all federal

22

statutes enacted or amended subsequent to promulgation of
the Rules.

The Sixth Circuit, in Bartlik v. United States Department
of Labor, 62 F.3d 163 (6th Cir. 1995), reviewed the time
period for seeking judicial review of agency action
(Tennessee Valley Authority) under the whistleblower
provision of the Energy Reorganization Act (see 42 U.S.C.
§ 5851(c)(1)). The Act states that a petition for review “must
be filed within sixty days from the issuance of the Secretary’s
order.” Vacating a previously-issued decision finding
otherwise (see 34 F.3d 365 (6th Cir. 1994), petition for
rehearing en banc granted and initial decision vacated,
see 34 F.3d 368), the Bartlik court applied Rule 26(a) and
found the appeal was timely when filed on the following
business day if the appeal period expired on a weekend day.

In so doing, the Court expressly overruled other Sixth
Circuit decisions to the contrary. See Rust v. Quality Car
Corral, Inc., 614 F.2d 1118 (6th Cir. 1980) (statute of
limitations begins to run on actual day of event and not day
following event day); Jn re Butcher, 829 F.2d 596 (6th Cir.
1987), cert. den., 484 U.S. 1078 (bankruptcy statute of
limitations ran for exactly two years and could not be
extended by rule excluding weekend days), and Hilliard v.
United States Postal Service, 814 F.2d 325 (6th Cir. 1987)
(thirty day limitations period could not be extended by rule
excluding weekend days). The Court Bartlik stated plainly
[footnote omitted, but see n.1 stating that the distinction
between “jurisdictional” and “procedural” limitations periods
“is no longer meaningful’’}:

We now believe that our previous
understanding of the effect of Civil Rule 6(a) on
a “jurisdictional” statute of limitations, as
explained in Rust, Butcher, and Hilliard, is
erroneous. We now hold that the application of

23

Appellate Rule 26(a), and likewise its counterpart
Civil Rule 6(a), to calculate a limitations period
does not ‘expand’ or ‘enlarge’ our jurisdiction.
Both of these rules do nothing more than provide
the court and the parties with a means of
determining the beginning and end of a statute of
limitations prescribed elsewhere in law.

The Bartlik court reviewed other authorities so holding
(see, e.g., Dole, supra), noting that its conclusion was reached
by a “straightforward and commonsense reading” of the
Rules. The Court noted that Rule 20 states “all provisions of
these rules are applicable to review or enforcement of orders
of agencies.” It added:

Because proposed federal procedural rules are sent
to Congress by the Supreme Court prior to their
enactment, we must assume that Congress
understood that the filing deadline for a petition
for review of an administrative agency decision
would be the first business day following the day
the petition was due if the due date fell on a
Saturday, Sunday, a legal holiday, or if the
courthouse was closed for reasons listed in the
rules.

Therefore, the court concluded,

[g]iven the longstanding and realistic view of the
relationship between statutes of limitations and
procedural computational rules, we believe that
Congress did not intend to negate the operation
of Appellate Rule 26(a) here, absent a clear and
unambiguous statement that this rule does not
apply to the calculation of a particular statute of
limitations period.

24

If Congress is to negate the application of the Rule within
the “mandatory” nature of a statute of limitations language,
“it will have to expressly communicate this desire.”

Finally the Bartlik Court stated, applying Rule 26(a)
generally to review of agency actions “is consistent with the
intent of Congress to expedite the review of agency
decisions.” Agency implementation of the decision “is not
meaningfully delayed” by applying Rule 26(a) to compute
the time period involved “and the agency is not prejudiced.”
Considering that courts are not open 24 hours a day and seven
days a week, “Congress has recognized that filing deadlines
must be calculated in a realistic, practical matter.”

In Littrell v. Shalala, 898 F. Supp. 582 (S.D. Oh. 1995),
the court applied Rule 6 to the time period for objecting to a
magistrate’s report in a Social Security disability case.
It utilized the day the report was filed as the “day of the act
or event” for purpose of the time period but excluded that
day, as provided by the Rule, and allowed for three days for
mail service. The day of the report was October 21 (1994).
The court began counting the 30 day period on October 22

__and added three days for mail service, thus-concluding that

the 30 day period began running on October 24. Thus,
consistent with a fair and appropriate application of these
rules, the court excluded the actual date of the order of action
when calculating the time period. And see Environmental
Defense Fund v. Thomas, 657 F. Supp. 302 (D.D.C. 1987)
(Rule 6(a) applied to considerations of statutory time period
for seeking review of agency action).

Therefore, District of Columbia Circuit here contravened
indications by this Court, general principles, its own
decisions, and decisions of other Federal courts in finding
that Petitioner’s appeal to that Court under 33 U.S.C.
§ 1319(g)(8) from the final agency order assessing the CWA
Class II penalty was untimely. The statute’s language that

25

the appeal is to be filed “within 30 days beginning on the
date the civil penalty order is issued” does not preclude
application of Rule 26(a) to computing the time period. Thus,
the time period began on the next day after issuance of the
order, not on the date of issuance of the order, and the time
period is extended to the next business day if the last day of
the time period falls on a weekend day or holiday.

However, not all Federal courts consistently have applied
these principles. See, e.g., Reid v. Universal Maritime Service
Corp., 41 F.3d 200 (4th Cir. 1994) (Rule does not apply to
10-day period in statute); Lee v. United States, 977 F.2d 551
(11th Cir. 1992), cert. den., 510 U.S. 890 (determining time
period for absent without leave in military context, standard
military method of counting the first day of absence applied
rather than Rule 6(a)); Anonymous Banks One Through Three
v. FDIC, 645 F. Supp. 706 (D.C. Mont. 1986) (Rule 6(a) did
not apply to 10 day limitations period for challenging
temporary cease and desist orders of FDIC).

Thus, this Petition presents significant questions of
computing time periods which will determine the rights of
litigants not only in Clean Water Act penalty assessment
situations as here, but throughout the Federal system and
regarding other Federal statutes. The fact that the District of
Columbia Circuit’s opinion is reported adds to the necessity
of this Court’s review of that opinion and its implications.

B. When Agency Decision is “Issued”

As to when the agency civil penalty order was “issued,”
for purposes of computing the appeal time period, the District
of Columbia Circuit was correct in deciding the agency’s
Final Decision was “issued” on the date that it was released
to the public (September 30) and not on the date of the
decision itself (September 29). See, e.g., Microwave
Communications, Inc. v. Federal Communications

26

Commission, 515 F.2d 385 (D.C. Cir. 1974) (appeal time
period for review of agency order began on date order was
released to litigants); Southern Pacific Pipe Lines, Inc. v.
Department of Transportation, 796 F.2d 539 (D.C. Cir. 1986)
(at n.1, deciding that court had jurisdiction in counting appeal
time period from date that agency order is issued, as from
date of public notice, and see cases cited); Zaluski v.
Immigration and Naturalization Service, 37 F.3d 72
(2d Cir. 1994) (Board of Immigration Appeals’s mailing of
decision to attorney’s address of record triggered 90-day
period for filing petition for review following “issuance” of
final deportation order); Oedraogo v. Immigration and
Naturalization Service, 864 F.3d 376 (Sth Cir. 1989) (similar
decision as to date when petition for review begins), and
Chem-Haulers, Inc. v. United States, 536 F.2d 610 (Sth Cir.
1976) (date of entry of judicial order is to be recorded in
official court docket before order is appealable and before
appeal time runs).

However, clarification of this approach by this Court is
also warranted, in that the District of Columbia Circuit merely
assumed without deciding that the “issuance” date was the
date the Final Decision was sent to counsel and released to
the public. The Circuit Court was correct to so state, since a
ruling otherwise would permit an agency to “embargo”
a decision of a certain date, releasing it or sending it to
counsel days later, and then contend that the appeal period
ran from a time that the parties were not even aware a decision
was made.

This Court’s clarification of when an agency decision is
“issued” for purposes of computing an appeal period or
other similar limitation period, would reach a question which
does not seem to have been decided by this Court in this
context. Such a clarification would have far reaching impact
in defining the rights and responsibilities of parties

27

proceeding under a host of Federal statutes and would put to
rest an issue that surely will be variously interpreted by
Federal courts.

The present situation presents an excellent opportunity
to put to rest precise but yet substantial matters of concern
to all litigants in the Federal system before both Federal
courts and agencies. Petitioners urge this Court to take up
these issues and clarify the necessity of applying Rule 26(a)
to statutory appeal periods and limitation periods unless there
is an express statement in the statute otherwise and clarify
the “issue” date of an agency decision from which the crucial
appeal time period is counted.

CONCLUSION

THEREFORE, Petitioner SLINGER DRAINAGE
requests of this Court that it GRANT its Petition for a Writ
of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit.

Respectfully submitted,

Gary R. LeE!stico*
RINKE-NOONAN

400 Ist Street South

Suite 700

Wells Fargo Center

St. Cloud, Minnesota 56302
(320) 251-6700

C. WILLIAM MICHAELS

1579 Dellsway Road
Baltimore, Maryland 21286
(410) 321-5770

Attorneys for Petitioner

* Counsel of Record

APPENDIX

la
APPENDIX A — OPINION OF THE UNITED STATES
| COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT DATED AND
DECIDED JANUARY 30, 2001

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18,2001 Decided January 30, 2001
No. 99-1433
SLINGER DRAINAGE, INC.,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

On Petition for Review of Orders of the
Environmental Protection Agency

* * *

Before: Epwarps, Chief Judge, SENTELLE and RANDOLPH,
Circuit Judges.

Opinion for the Court filed by Chief Judge Epwarps.

Epwarbs, Chief Judge: Slinger Drainage Inc. (“Slinger’’)
seeks review of a final decision of the Environmental

2a

Appendix A

Protection Agency’s (“EPA’s”) Environmental Appeals
Board. Slinger is in the business of installing drainage tile,
and in this capacity used a Hoes Trenching Machine to install
26,000 linear feet of drainage tile over a 50-acre area. As a
result, the EPA filed an administrative complaint against
Slinger alleging that Slinger violated § 301(a) of the Clean
Water Act, 33 U.S.C. § 1311(a) (1994), by failing to secure
a permit before discharging pollutant into wetland as required
under § 404 of the Clean Water Act, 33 U.S.C. § 1344. The
Administrative Law Judge found Slinger liable as alleged
and assessed a Class II civil penalty of $90,000; the Appeals
Board affirmed both the finding of liability and the penalty.
In re: Slinger Drainage, Inc., CWA Appeal No. 98-10 (Sept.
29, 1999), reprinted in Joint Appendix 39. Whatever the
substance of Slinger’s claims, this court has no jurisdiction
to reach the merits in this case, because Slinger’s notice of
appeal was untimely.

In the case of an assessment of a Class II civil penalty, a
party may obtain judicial review “by filing a notice of appeal
in such court within the 30-day period beginning on the date
the civil penalty order is issued.” 33 U.S.C. § 1319(g)(8)(B).
The Supreme Court has explained that “[jJudicial review
provisions ... are jurisdictional in nature and must be
construed with strict fidelity to their terms. ... This is all
the more true of statutory provisions specifying the timing
of review, for those time limits are, as we have often stated,
‘mandatory and jurisdictional,’ ... and are not subject to
equitable tolling.” Stone v. Immigration and Naturalization
Serv., 514 U.S. 386, 405 (1995) (quoting Missouri v. Jenkins,
495 U.S. 33, 45 (1990)). Under 33 U.S.C. § 1319(g)(8)(B),
Slinger had 30 days to file its notice of appeal beginning on

3a

Appendix A

the date the order issued. As a statutory provision defining
the timing of review within a judicial review provision, this
30-day period is jurisdictional.

The parties disagree on when the Appeals Board issued
its order. Slinger asserts that the order issued on Thursday,
September 30, 1999; the EPA argues that the order issued
on Wednesday, September 29, 1999. For the purpose of
assessing our jurisdiction, we assume, without deciding, that
Slinger is correct and the order issued on Thursday,
September 30, 1999. Even accepting this assumption,
however, Slinger’s notice of appeal was not timely.

33 U.S.C. § 1319(g)(8)(B) specifies that the period for
filing a notice of appeal runs for 30 days beginning on the
day the order issues. This provision does not, however,
indicate any rules regarding the treatment of weekend days,
holidays, or other potential exceptions. As a result, we look
to Federal Rule of Appellate Procedure 26(a), which provides
that Saturdays and Sundays are counted within the filing
period, unless the last day of the period falls on a Saturday
or Sunday. In particular, Rule 26(a) directs that we “[i]nclude
the last day of the period unless it is a Saturday, Sunday [or]
legal holiday.” Under this provision, the court must include
intermediate Saturdays and Sundays in computing the
30-day period. Thus, starting with the date Slinger asserts
the order issued, Thursday, September 30, 1999, the 30-day
period ended on Friday, October 29, 1999. Slinger filed its
notice of appeal to this court on Monday, November 1, 1999
— outside the legal time for filing its notice of appeal.

4a

Appendix A

At oral argument Slinger asserted that Rule 26(a) governs
how the 30-day period is computed. Were this the case, we
would “[e]xclude the day of the act, event, or default that
begins the period.” Fep. R. App. P. 26(a). Thus, under Rule
26(a), we would not include the day the order issued, which
would mean that the 30th calendar day fell on Saturday,
October 30, 1999. Under this calculation, the 30th day for
filing a notice of appeal would have been Monday, November
1, 1999, the day that Slinger filed.

Rule 26(a), however, does not apply when Congress has
specified a particular method of counting in the statute itself
and there is no indication of a contrary congressional
intention. This was evident in United Mine Workers of
America v. Dole, 870 F.2d 662, 665 (D.C. Cir. 1989), where
the court found that Rule 26(a) applied to the requirement in
the Mine Act, 30 U.S.C. § 811(d) (1994), that a petition
challenging a new standard be filed “prior to the sixtieth
day after such standard is promulgated.” The court explained
that, because the cited statute made “no separate provision
for the computation of time,” “Congress intended its time
periods to be computed in accordance with the federal rule.”
United Mine Workers, 870 F.2d at 665. The court also noted
the “continuing vitality” of the Supreme Court’s reasoning
in Union National Bank v. Lamb, 337 U.S. 38, 40-41(1949),
namely, “that the federal rules of procedure can be relied on
for interpreting a statutory time period in the absence of any
more statute-specific provisions or indication that Congress
did not intend the rules to apply.” United Mine Workers,
870 F.2d at 665 n.2.

Sa

Appendix A

In this case, in contrast, the statute currently before us
clearly establishes a separate provision for the computation
of time: a person may obtain review by filing “within the
30-day period beginning on the date the civil penalty issued.”
33 U.S.C. § 1319(g)(8)(B) (emphasis added). And there is
nothing to suggest that Congress did not intend precisely
what it said in the statute. As a result, Slinger’s notice of
appeal was not timely, and this court has no authority to
hear the merits of its claim. We dismiss the appeal for lack
of jurisdiction.

6a

APPENDIX B — FINAL DECISION OF THE

ENVIRONMENTAL APPEALS BOARD, UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY
DATED AND DECIDED SEPTEMBER 239, 1999

BEFORE THE ENVIRONMENTAL
APPEALS BOARD
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C.

CWA Appeal No. 98-10

In re:
Slinger Drainage, Inc.

Docket No. 5-CWA-97-022
[Decided September 29, 1999]

FINAL DECISION

* * *

Before Environmental Appeals Judges Scott C. Fulton,
Ronald L. McCallum, and Kathie A. Stein.

Opinion of the Board by Judge McCallum:

Slinger Drainage, Inc. (“Slinger”), the Respondent in
an administrative complaint proceeding instituted by the
Water Division Director of Region V, U.S. Environmental
Protection Agency (“EPA Region V”), is appealing from an
initial decision in which the Presiding Officer found it liable,
as alleged in the complaint, for illegally discharging a

7a

Appendix B

pollutant, specifically, dredged soil and organic materials,
into a wetland that is part of the waters of the United States.
Section 301(a) of the Clean Water Act (“CWA” or “Act”),
33 U.S.C. § 1311(a), prohibits this type of discharge unless
it occurs in compliance with a permit issued by the U.S. Army
Corps of Engineers (the “Corps”) pursuant to section 404 of
the Act, 33 U.S.C. § 1344. Slinger did not have a permit
at the time of the discharge and had never applied for one.
The Presiding Officer assessed a civil penalty against
Respondent in the amount of $90,000.!

I.

Slinger is in the business of installing field drainage tile.”
In this instance, the installation work was done at the behest
of a farmer who sought to transform a wetland portion of his
farm into a viable dryland crop production area.’ The precise

1. Civil penalties may be assessed administratively by EPA
pursuant to section 309(g) of the CWA, 33 U.S.C. § 1319(g), against
persons who violate, inter alia, the prohibition in section 301(a) of
the CWA.

2. The names, dates, jurisdictional and other important factual
details relevant to the complaint against Slinger are spelled out in
the initial decision. Unless otherwise noted, we adopt the findings
of fact in the initial decision. In addition, we note that in the
proceedings below the parties entered into several factual stipulations.
See Joint Stipulations of Fact and Regarding Documents, (“Stip”)
(filed May 12, 1998). The parties also stipulated to the “authenticity
and admissibility” of 66 exhibits. Jd.; Trial Tr. at 207.

3. We spell dryland as one word simply to place it on an
orthographic par with wetland. The term “upland,” in lieu of “dry
(Cont’d)

8a
Appendix B

means by which Slinger installs drainage tile is highly
relevant to the liability issue, since the means of installation
help determine whether a prohibited “discharge” took
place — an issue of central importance Slinger employs
a “Hoes Trenching Machine,” which, as part of a continuous
and unified process, digs a trench, lays a continuous line of
drainage tile in the bottom of the trench, and then redeposits
the excavated material back into the trench. More
specifically, the machine uses a “chainsaw-type blade” with
a circulating chain on an arm to dig a trench into the wetland
soil. The chain momentarily lifts the soil out of the ground
to create a trench into which the tile is fed by the machine.
Approximately 50 percent of the soil that is removed to create
the trench is immediately dropped back into the trench, and
the remaining 50 percent is left momentarily on the side of
the trench. The machine then immediately pushes most of
the latter quantity back into the trench with concave-type
disks, which are attached to the rear of the machine. All of
these steps are carried out as part of a unified process as the
machine traverses the field.‘

(Cont'd)

land” or “dryland,” is sometimes used in the regulations to describe
land that does not have wetland characteristics and is not part of the
waters of the United States. See, e.g., 40 C.F.R. § 232.3(d)(3)(i)(A).

4. According to the testimony of Mr. Charles Slinger, President
and sole owner of Slinger Drainage, Inc., “most” of the 50 percent
that remains briefly on the side of the trench “is put back in with
concave disks behind the machine. What isn’t is put in with a blade
on a tractor.” Trial Tr. at 183 (direct examination). On cross-
examination, Mr. Slinger acknowledged that “small bits” of soil
remain on the surface after the disks on the back of the machine

(Cont'd)

9a

Appendix B

In this instance, the machine dug trenches to lay
approximately 26,000 linear feet of tile over a 50-acre area
of the farm. The trenches are thirteen inches wide and vary
in depth from 4 to 6 feet. The tile itself is perforated and
ranges from 4 to 6 inches in diameter, with the larger tiles
running out from the perimeter drainage ditches (dug by
another contractor prior to the tile installation), and the
smaller ones running off of individual 6-inch tiles. The tile
is laid out in a pattern best suited to take advantage of the
flow characteristics of the terrain. The project was designed
to convey water collected in the tiles into the perimeter
drainage ditches and then into a nearby waterway known as
the Town Ditch. Eventually, it was expected that the drained
area would be transformed from a wetland into dryland.°

(Cont'd)

have forced the bulk of the material back into the trench. Trial Tr.
at 211 (cross-examination). Based on a comparison of his testimony
on direct and cross-examination, we deduce that any remaining
“small bits” not returned to the trench by the concave disks on the
machine are returned to the trench by the tractor blade. Our search
of the record (including stipulations) has not turned up any evidence,
notwithstanding the recollections of counsel for EPA Region V to
the contrary. Oral Arg. Tr. at 43, of quantities of soil remaining on
the sides of the trenches after the Hoes Trenching Machine and
tractor blade complete their work.

5. Federal regulations define “wetlands” as “those areas that
are 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. Wetlands generally
include swamps, marshes, bogs and similar areas.” 40 C.F.R.

(Cont'd)

10a

Appendix B

Neither Slinger nor the farmer applied to the Corps for a
permit under section 404 of the CWA.

A.

The text of section 404(a) of the CWA reads, in pertinent
part, as follows:

The [Corps of Engineers] may issue permits,
after notice and opportunity for public hearings[,]
for the discharge of dredged or fill material into
the navigable waters® at specified disposal sites.

33 U.S.C. § 1344(a). This provision of the Act operates under
the umbrella of section 301(a), which makes it unlawful for

(Cont'd)

§ 230.3(t). The wetland in this case has been identified by the State
of Wisconsin as within a system that is important for purposes of
stemming nonpoint source pollution of waterways and protecting
wildlife habital associated with wetlands. Initial Decision at 4.

6. The term “navigable waters” is defined in the Act and has a
meaning that extends well beyond what is traditionally embraced
by the concept of navigable-in-fact waters. The subtleties associated
with the meaning of the term need not be addressed in this decision,
however, for Slinger does not dispute the status of the affected
wetlands as meeting the definition. Stip. No. 15. It suffices to note
that the Supreme Court has stated that Congress, in defining
“navigable waters” as “waters of the United States,” intended to
“exercise its powers under the Commerce Clause to regulate at least
some waters that would not be deemed ‘navigable’ under the
classical understanding of that term.” United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 133 (1985).

lla

Appendix B

any person to “discharge” any “pollutant” into waters of the
United States except in compliance with certain enumerated
provisions of the Act, one of which is section 404. The term
“pollutant” is defined broadly in the Act and includes, but is
not limited to, “dredged spoil * * * discharged into water.”
CWA § 502(6), 33 U.S.C. § 1362(6). The term “dredged
spoil” is not further defined in the Act, but the term used in
its stead in the regulations, “dredged material,” is defined as
material that is removed “from” a body of water by means
of excavation or dredging:

“Dredged material” means “material that is
excavated or dredged from waters of the United
States.”

40 C.F.R. § 232.2. Because Slinger does not dispute that it
removed soil from a wetland by means of excavation (albeit
only momentarily),’ dredged material is unquestionably the
pollutant at issue in the instant proceeding.

The term “discharge of a pollutant” is also defined in
the Act, and is the principal, statutorily defined term at issue
in this case:

The term “discharge of a pollutant” * * *
means (A) any addition of any pollutant to
navigable waters from any point source, (B) any
addition of any pollutant to the waters of the
contiguous zone or the ocean from any point
source other than a vessel or other floating craft.

7. “The soil displaced at the Site by the Hoes Trenching
Machine in July 1994 was composed primarily of organic soils.”
Stip. No. 6.

12a

Appendix B

CWA § 502(12). 33 U.S.C. § 1362(12).* The term “addition,”
as it appears in the foregoing section of the Act, is not
separately defined elsewhere in the statute or regulations.?
The meaning of the term has assumed a prominent role in
the case, for Slinger argues, both on appeal and below, that
its tile-laying activities did not result in an addition of a
pollutant to waters of the United States, and, hence, no
discharge of a pollutant occurred requiring a permit under
section 404.

The section 404 regulations replace the statutory term
“discharge of a pollutant” with the context-specific term
“discharge of dredged material,” which the regulations in
turn define as dredged material that is added back, or
redeposited, “into” a body of water:

8. The parties have stipulated that the Hoes Trenching Machine
is a “point source,” defined in section 502(14) of the Clean Water Act as
including “‘any discernible, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit, well [or]
discrete fissure * * * from which pollutants are or may be discharged.”

9. The Corps and EPA have shared responsibility for
administering this section of the Act, with the Corps having general
responsibility over permit issuance and EPA having the right to veto
any Corps-issued permits. See generally CWA § 404(a), (c), (n),
33 U.S.C. § 1344(a), (c), (n). Although both are authorized to
exercise certain enforcement powers, EPA has exclusive authority
to institute administrative civil penalty proceedings under CWA
§ 309, 33 U.S.C. § 1319. The Corps and EPA have issued extensive
regulations implementing and interpreting section 404 of the CWA.
These regulations provide insight into the meaning of the statutory
provisions, flesh out some of the terms, and have the force of law.
As noted, however, they do not separately define the term “addition.”

13a

Appendix B

[T]he term discharge of dredged material means
any addition of dredged material into, including
any redeposit of dredged material within, the
waters of the United States. The term includes,
but is not limited to, the following: * * * (iii) Any
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.

40 C.F.R. § 232.2; 33 C.F.R. § 323.2(d). Like its statutory
counterpart, this regulation also does not define the term
“addition”; however, the relationship between the regulatory
definition of “dredged material” (material that is removed
“from” a body of water by means of excavation or dredging)
and the regulatory definition of “discharge of dredged
material” (dredged material that is added back, or
redeposited, “into” a body of water) does shed light on
whether an addition to the wetland took place as the result
of Slinger’s activities. This relationship is addressed later in
this opinion in the discussion of United States v. Wilson,
133 F.3d 251 (4th Cir. 1997), a case cited by Slinger in
support of its position. ie

B.

The Presiding Officer found Slinger liable for
discharging dredged soil and organic materials without first
obtaining a permit from the Corps pursuant to section 404
of the CWA. He rejected Slinger’s arguments that movement
of soil and organic matter was not a discharge but only

l4a

Appendix B

incidental to the laying of the tile. Among other things, the
Presiding Officer held that “[t]he redeposit of materials
excavated from a wetland is the addition of pollutants under
the CWA, United States v. Huebner, 752 F.2d 1235, 1243
(7th Cir. 1985)”; and “the Corps of Engineers has
consistently interpreted the CWA to require a permit for the
type of activity found in this case.” Initial Decision at 8.
Further, he rejected Slinger’s contention that the D.C. Circuit’s
ruling in National Mining Ass'n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir. 1998) (hereafter “NMA”), was
applicable to this case, observing that the material that Slinger
excavated was not “incidental fallback” within the meaning
of NMA. Very briefly — for NMA is discussed at length later
on — the court in NMA affirmed a district court decision
permanently enjoining EPA and the Corps from enforcing
the so-called Tulloch Rule, 40 Fed. Reg. 45,008 (Aug. 25,
1993), which incorporated the “any redeposit” language into
the definition of discharge of dredged materials.'® The court

10. EPA and the Corps subsequently revised the definition of
discharge of dredged material to bring it into conformity with the
NMA decision. The definition now reads in relevant part as follows:

[T]he term discharge of dredged material means any
addition of dredged material into, including redeposit
of dredged material other than incidental fallback within
[sic], the waters of the United States. The term includes,
but is not limited to, the following: * * * (iii) Any
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.

(Cont'd)

P he oe yg s Raat: SOR So LTP BF EAIID RGR LIOR LMI B LE LD ip LOI AIELLO ROPE BA EMELINE, EYELINER

SSS 22

lSa

Appendix B

held that “by asserting jurisdiction over ‘any redeposit,’
including incidental fallback, the Tulloch Rule outruns the
Corps’s:statutory authority.” NMA, 145 F.3d at 1405. The
Presiding Officer, in rejecting Slinger’s argument that NMA
was applicable, observed:

Moreover, there is no evidence that Respondent
[Slinger] removed the dredged material from the
site and intended to leave only that [which] fell
back into the waterway. All the soil which
Respondent dredged or excavated was redeposited
in the waterway.

Initial Decision at 6. Because he found that the redeposit
was not incidental, as Slinger contends, the Presiding Officer
concluded that the present case is distinguishable from the
fact pattern considered in NMA.

c.

In support of its position on appeal that there was no
discharge of pollutants because there was no addition of
poliutants to the wetland, Slinger points to the fact that it
did not bring any soil or other material to the work site, nor
did it remove any soil or other material from a non-wetland
portion of the site and relocate it to a wetland portion. Critical
to its view of the case is “whether or not the soil disturbed in
placing tile by use of a Hoes Trenching Machine is disturbed

(Cont'd)

See Revisions to the Clean Water Act Regulatory Definition of
“Discharge of Dredged Material,” 64 Fed. Reg. 25,120, 25,123. (May
10, 1999) (revising 40 C.F.R. § 232.2 and 33 C.F.R. § 323.2(d)).

l6a

Appendix B

in such a way as to fit within the definition of ‘discharge’
under the Clean Water Act. Regardless of whether the soils
within a wetland fit within the definition as a ‘pollutant,’
there is no violation in this case if those soils were not
‘discharged’ into the wetland.” Slinger App. Br. at 5. Further,
“[p]lacing tile by use of a Hoes Trenching Machine does not
add anything to the wetland. The Machine lays the tile and
leaves. It brings nothing into the wetland and takes no part
of the wetland and removes it to another part of the wetland.”
Id. at 6. Continuing, Slinger states, “[t]he soil moved by a
Hoes Trenching Machine in placing tile, drops the soil or
material excavated directly back into the same location in
the same wetland. It cannot be said that this soil is an addition
to the wetland.” /d. at 7.

Slinger also argues on appeal that NMA effectively
enjoins EPA from regulating the placement of tile by use of
a Hoes Trenching Machine." Slinger asserts that the
redeposition of soil that takes place using the Hoes Trenching
Machine is “incidental fallback,” Trial Tr. at 8, i.e.,
“incidental” to the tiling project itself, Oral Arg. Tr. at 22,
and is not regulable under section 404.'? Accordingly, Slinger

11. The Board granted EPA Region V’s motion for oral
argument in this case expressly to “assist it in its deliberations over
the pivotal issue of whether the Agency has jurisdiction, under CWA
section 404, over Slinger’s wetland dredging activities in light of
the recent decision in NMA.” Order Scheduling Oral Argument
(EAB, Mar. 12, 1999).

12. Nowhere in its appellate brief or at oral argument (or for
that matter, in its brief before the Presiding Officer) does Slinger
explain exactly why it believes NMA operates to “effectively enjoin”
EPA and the Corps from requiring a section 404 permit when

(Cont’d)

17a

Appendix B

argues that the finding of liability by the Presiding Officer
should be overturned. Alternatively, if the Board disagrees
with it on the issue of liability, Slinger asserts that the penalty
is “unconscionable” (but does not recommend a reduction
by a specific amount).

On appeal, EPA Region V does not dispute the facts as
described earlier and does not disagree with Slinger’s
assertions that it did not bring any material to the work site
or remove any from the site to another location EPA Region
V does however view the physical movement of the wetland
soil that occurs during installation of the tile with a Hoes
Trenching Machine as a process of excavation and redeposit
— “substantial disturbance and redeposition of dredged
material.” EPA Region V App. Br. at 3. As described by
EPA Region V, “Excavation by the machine involves the
removal of soil which subsequently falls back to the ground,
some into the trench and some to the sides of the trench.
Most of the soils on the side of the trench are then replaced
into the trench by discs on the back of the trenching machine.
A tractor with an attached blade returns remaining excavated
soil to the trench.” Jd. at 2. EPA Region V argues that this

(Cont'd)

installing drainage tile by means of a Hoes Trenching Machine. In
addition, Slinger even appears to contradict itself on the question of
whether it believes the installation produces “incidental fallback”
as described in the Tulloch Rule and NMA. Compare Oral Arg. Tr.
at 22 with id. at 25.

13. EPA Region V also maintains that “[a] portion of the
excavated soils remains on the side of the trench.” EPA Region V
App. Br. at 2. This contention is not, as explained supra note 4,
supported by the record.

18a

Appendix B

process constitutes an “addition” and hence a “ ‘discharge
of pollutants’ under prevailing case law.” /d. at 3. As for
NMA, EPA Region V takes the position that “the facts of the
NMA decision are clearly distinguishable from the facts in
the instant matter, rendering the NMA injunction inapplicable
to this matter.” Jd. In particular, EPA Region V contends
that the court in NMA was concerned only about “incidental
fallback,” involving only small quantities of soil, whereas
Slinger “redeposited the entire amount of excavated material
(all 2900 cubic yards of it) into the wetland.” Jd. at 8. EPA
Region V adds, “There is, moreover, nothing accidental about
these redeposits. The material did not merely fall back on
its own incidental to the act of excavation, but instead was
first removed and then mechanically redeposited into the
trench.” Jd. EPA Region V argues that the Presiding Officer’s
finding of liability and assessment of a $90,000 penalty
should be upheld.

Before discussing the specific merits of Slinger’s appeal,
we turn first to a focused examination of EPA’s and the
Corps’ regulatory authority over drainage of wetlands that
are part of the waters of the United States. Overlaying this
discussion is the statutory background discussed earlier,
which premises regulatory jurisdiction on a discharge of a
pollutant into waters of the United States and, in the case of
discharges involving excavated or dredged materials, the
section 404 permitting requirements of the Act.'*

14. As noted previously, section 404(a) of the CWA authorizes
the Secretary of the Army to issue permits for “the discharge of
dredged or fill material into the navigable waters at specified disposal
sites.” A section 404 permit is mandated for discharges of dredged

(Cont'd)

19a

Appendix B
Il.

EPA and the Corps have implemented section 404 of
the Act by issuing regulations that describe, often in very
general terms, the types of activities that are subject to the
section 404 permitting requirement.'* These activities are

(Cont'd)

or fill material by operation of section 301(a) of the CWA, which
declares unlawful the “discharge of any pollutant” by any person
unless in compliance with certain specific provisions of the CWA,
one such provision being section 404. The term “discharge of a
pollutant” is defined by the CWA as constituting “any addition of
any pollutant to navigable waters from any point source.” CWA
§ 502(12), 33 U.S.C. § 1362(12). The term “pollutant” is in turn
defined by the CWA to mean, inter alia, dredged spoil, i.e., dredged
material. CWA § 502(6), 33 U.S.C. § 1362(6).

15. Some commentors on the Tulloch Rule drew a distinction
between activities and discharges, asserting that the Rule attempts
to regulate activities, whereas the CWA only authorizes the
government to regulate discharges. 40 Fed. Reg. 45,008, 45,011
(Aug. 25, 1993). EPA and the Corps rejected this contention,
responding as follows:

EPA and the Corps agree with the point made by
these commentors that the presence of a “discharge”
into waters of the U.S. is an absolute prerequisite to an
assertion of regulatory jurisdiction under Section 404.
Based on ihe clear language in section 301(a) of the
CWA, this has been the agencies’ long-standing
position, and we are not altering that view in this
rulemaking. For the reasons explained in this preamble,
the agencies believe that addition or redeposition of

(Cont'd)

~

20a

Appendix B

described both in terms of what they include and what they
exclude, and are set forth in a lengthy definition of the term
“discharge of dredged material.” 40 C.F.R. § 232.2. The
prime included activity is “[t]he addition of dredged material
to a specified discharge site located in waters of the United
States.” 40 C.F.R. § 232.2. Examples of excluded activities
are “[a]ny incidental addition, including redeposit, 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 U.S.” (subject to a no-effects demonstration
requirement in certain cases), and “normal farming * * *
activities such as plowing, seeding, cultivating, minor
drainage, and harvesting.” Jd. (emphasis added).

Drainage of wetlands is not explicitly mentioned as one
of the activities that is included within the section 404
permitting requirement. Nevertheless, it is beyond cavil that

(Cont'd)

dredged material in the course of activities such as
mechanized landclearing, ditching, channelization and
other excavation meets the discharge requirement of
section 301(a). Because this rule will only regulate
activities where the jurisdictional prerequisite of a
“discharge” is present, EPA and the Corps disagree with
commentors who argued that this rule is outside the
scope of the agencies’ authority under Section 404.

Commentors are therefore flatly incorrect that this
rule would trigger Section 404 jurisdiction over a
discharge based upon the environmental effect of the
associated activity

Id.

ee

2la

Appendix B

the broad definition of “discharge of dredged material,”
40 C.F.R. § 232.2, encompasses at least certain forms of
wetlands drainage activities that involve a discharge of
dredged material. This conclusion is the only reasonable
inference to draw from the explicit exclusion of “minor
drainage” in the statute from the permitting requirement.
See CWA § 404(f)(1)(A), 33 U.S.C. § 1344(f)(1)(A). The
implementing regulations are premised with this conclusion
in mind. For example, in defining exempted minor drainage,
the regulations refer, inter alia, to “[{cJonstruction * * * of
upland (dryland) facilities, such as ditching and tiling” that
are incidental to normal farming operations and that “involve
no discharge of dredged or fill material into waters of the
United States.” 40 C.F.R. § 232.3(d)(3)(i)(A). As further
provided in the regulations, minor drainage expressly
excludes conversion of wetlands to non-wetlands, for the
obvious reason that the drainage in that instance is patently
not minor, given its effect on the wetland.

(ii) Minor drainage in waters of the United
States is limited to drainage within areas that are
part of an established farming or silviculture
operation. It does not include drainage associated
with the immediate or gradual conversion of a
wetland to a non-wetland (e.g., wetland species
to upland species not typically adequate to life in
saturated soil conditions), or conversion from one
wetland use to another (for example, silviculture
to farming).

40 C.F.R. § 232.3(d)(3)(ii). The inference to be drawn from
the foregoing exclusions from the minor-drainage definitions

22a

Appendix B

is that the drafters of the regulations, as well as the statute,
assumed that a section 404 permit would be required for all
other drainage activities that result in a discharge of dredged
or fill material into waters of the United States (hereafter
sometimes referred to as “non-minor drainage”). As
explained in the Senate Report.

Minor drainage is intended to deal with situations
such as drainage in Northwestern forests or other
upland areas. The exemption for minor drainage
does not apply to the drainage of swampland or
other wetlands.

S. Rep No. 95-370, at 76 (1977), reprinted in 1977
U.S.C.C.A.N. 4326. There is little doubt that Congress was
concerned over the loss of wetlands to agriculture and to
land developers. Avoyelles Sportsmen's League v. Marsh,
715 F.2d 897, 923 (Sth Cir. 1983) (“Congress recognized
the importance of protecting wetlands”).'®

16. Congressional interest in preventing the loss of wetlands
is not limited to the CWA

In order to combat the disappearance of wetlands
through their conversion into crop lands. Congress
passed a law known commonly as “Swampbuster.” Food
Security Act of 1985, Pub. L. No. 99-198, §§ 1201,
1221-23, 99 Stat. 1354, 1504-08 (codified as amended
at 16 U.S.C. §§ 3801, 3821-24). This law did not make
illegal the conversion of wetlands to agricultural use,
but did provide that any agricultural production on a
converted wetland would cause the farmer to forfeit his
eligibility for a number of federal farm-assistance
(Cont'd)

23a

Appendix B

Requiring a section 404 permit in most instances for non-
minor drainage of wetlands is a fairly unremarkable
proposition in view of the language and structure of the
statute and regulations. In fact, EPA and the Corps assume
as much, for they have seen little need to adopt explicit
regulations mentioning wetlands drainage. For example, in
the two agencies discussion of comments on the Tulloch
Rute. they expressed no need to promulgate additional
regulations covering the placement of drainage tiles:

One commentor indicated that the preamble
[to the Tulloch Rule] should clarify that the
excavation of wetlands to place drainage tiles
should be regulated under Section 404 since this
involves a discharge and destroys wetlands. The
excavation of wetlands to place drainage tiles is
currently regulated under Section 404 unless such
activities qualify for a Section 404(f)
exemption.''") Activities that involve replacing
existing field drainage tiles where the replacement
does not increase the extent of drainage beyond

(Cont'd)
programs. Among the exemptions to provisions of
Swampbuster is one for wetlands that had been
converted to agricultural production before December
23, 1985. See § 3821(d). The farming of such previously
converted wetlands does not make the farmer ineligible
foi benefits.

Gunn v. U.S.D.A., 118 F.3d 1233 (8th Cir. 1997)

17. See infra note 18 (discussing section 404(f)).

24a

Appendix B

that provided by the original tiling would
generally qualify for such an exemption.

40 Fed. Reg. 45,008, 45,025 (Aug. 25, 1993) (emphasis
added).

Notwithstanding the CWA’s inclusion of certain non-
minor drainage of wetlands within the section 404 permitting
requirement, it is equally apparent that the means by which
the drainage of a wetland is accomplished may have a
significant bearing on whether or not a specific drainage
activity will require a permit. A permit is only necessary if
there is a “discharge” of dredged or fill material into the
waters of the United States; if drainage is accomplished by
means not involving a discharge of dredged or fill material,
no permit is required. For example, draining a body of water
by means of a pump has been held not to involve a discharge
of dredged or fill material and, hence, not to require a permit
pursuant to section 404 prior to starting the draining.
Save Our Community v. EPA, 971 F.2d 1155, 1165 (Sth Cir.
1992) (“[T]he deliberate draining of a swamp is not a
discharge of fill material.”); Comment, Pumping With the
Intent to Kill: Evading Wetlands Jurisdiction Under Section
404 of the Clean Water Act Through Draining, 40 DePaul
L. Rev. 1059 (1981). As explained by the court in Save Our
Community, “[t]he existence of discharge is critical. The
discharge must be of effluent or dredged or fill material.”
971 F.2d at 1162. Accordingly, the court held “that the
wetlands draining activity per se does not require a section
404 permit under the CWA, as only activities involving
discharges of effluent [e.g., dredged or fill material]
necessitate obtaining a permit.” Jd. at 1167.

25a

Appendix B

EPA and the Corps concur, in general terms, with the
decision in Save Our Community:

Several commentors [on the Tulloch Rule]
indicated we should regulate the pumping of water
because pumping water from a wetland has the
same effect as draining, and, according to the
commentor, “the impact of draining would be
considered an identifiable decrease” in functions
and values of waters of the U.S. We believe that
pumping water from a wetland or other waters of
the United States would not, in and of itself,
necessarily result in a discharge of dredged
material. See Save Our Community v. EPA, 971
F.2d 1155 (Sth Cir. 1992). * * * We do not believe
that simply putting a pipe into a water of the
United States, per se, would necessarily involve
a regulated discharge.

40 Fed. Reg. 45,008, 45,025 (Aug. 25, 1993) (preamble
to Tulloch Rule).

The test of whether a section 404 permit is required for
a particular activity that takes place in, or impacts, a wetland
obviously does not depend solely or, in some instances, even
partially on the effects of the activity on the wetland, as the
pumping example proves. With the exception of certain
exempted activities (not applicable here),'* the only

18. Pursuant to CWA § 404(f), certain discharges of dredged

or fill material, for example, “minor drainage,” 40 C.F.R. § 232.3(c),
which does not change the character of the wetland, see 40 C.F.R.
(Cont’d)

26a

Appendix B

consideration — the regulatory sine qua non — is whether a
discharge of dredged material takes place. This is not to say
that the “effects” of a particular activity are of no concern.
In a broad sense effects are the driving force behind the entire
regulatory scheme to protect wetlands. Section 404 was
enacted in 1972 as part of a regulatory scheme whose purpose
was “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” CWA § 101,
33 U.S.C. § 125. The Supreme Court in United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985),
upheld “the Corps’ ecological judgment” that regulatory
activities intended to protect waters of the United States must
include adjacent wetlands, for they function under the same
hydrologic cycle.'® Nevertheless, the pivotal consideration
for purposes of deciding whether an individual activity is or
is not subject to the section 404 permitting requirement is
whether a discharge of dredged material takes place.

(Cont'd)

§ 232.3(b), are not prohibited. See United States v. Huebner, 752
F.2d 1235, 1241 n.9 (7th Cir. 1985) (agricultural exemptions from
the section 404 permitting requirement are “narrowly defined
activities” that “cause little or no adverse effects either individually
or cumulatively”). In those instances, EPA and the Corps may look
to the effects of the discharges in deciding what activities to exclude
(exempt) from regulatory coverage, partly or completely. Slinger is
not asserting entitlement to an exemption under these provisions of
the Act and regulations.

19. Another court has noted, “Congress purposely included
nonnavigable inland wetlands in the definition of navigable waters
because of their importance in the chain of travel of toxic pollutants.
4 LEGISLATIVE HISTORY 928 (statement of Sen. Muskie).”
United States v. Huebner, 752 F.2d 1235, 1241 n.9 (7th Cir. 1985).

27a

Appendix B
Il.

Clearly, the drainage of the wetland area by Respondent
Slinger Drainage, Inc. was intended to transform a wetland
into dryland and thereby destroy its wetland characteristics
so that it would be suitable for dryland crop production. But
the central legal issue, as noted above, is not whether the
drainage resulted in the destruction of a wetland; it is whether
the installation of drainage tile, by means of a Hoes
Trenching Machine, resulted in the discharge of dredged
material into the wetlands, thereby constituting a discharge
of pollutants into waters of the United States and requiring a
permit under section 404 of the CWA.” The case is one of
first impression for the Board.

A.

The parties’ positions on appeal have been shaped, in
many respects, by their differing views on how the D.C.
Circuit’s decision in NMA impacts the present case. For that
reason we will examine the court’s opinion in some detail,

20. Slinger does not so much dispute that the excavated material
which the Hoes Trenching Machine redeposited was dredged
material, that the Hoes Trenching Machine constitutes a point source,
or that the area on which it conducted its filing work is a wetland.
Rather, according to Slinger, “The actual issue is whether or not the
scil disturbed in placing tile by use of a Hoes Trenching Machine is
disturbed in such a way as to fit within the definition of ‘discharge’
under the Clean Water Act.” Slinger App. Br. at 5. As further
elaborated by Slinger, “The issue is not whether there was a
discharge of ‘foreign’ materials into the wetland. The issue is
whether or not there was a ‘discharge’ into a wetland.” Jd. at 5-6.

28a

Appendix B

despite the fact that the holding presented there is, in our
view, largely inapplicable to the case at hand.

NMA upheld a district court’s invalidation of the Tulloch
Rule,?' a rule promulgated by the Corps and EPA in 1993 in
order to eliminate a de minimis exemption under an earlier
rule. The earlier rule defined the term “discharge of dredged
material” to mean “any addition of dredged material into
waters of the United States,” but it also excluded “‘de minimis,
incidental soil movement occurring during normal dredging
operations.” 51 Fed. Reg. 41,206, 41,232 (Nov. 13, 1986).
The Tulloch Rule removed the de minimis exception and
expanded the discharge definition to include “any addition
of dredged material into, including any redeposit of dredged
material within, the waters of the United States.” 58 Fed.
Reg. 45,008, 45,037 (Aug. 25, 1993). The rule was challenged
immediately by trade associations whose members engaged
in excavation and dredging activities and who were concerned
that the rule covered incidental “fallback” of dredged material
that occurs during normal dredging operations.» During

21. The Tulloch Rule derives its name from the settlement of
a case by the name of North Carolina Wildlife Fed’'n v. Tulloch,
No. C90-713-CIV-5-BO (E.D.N.C. 1992).

22. The Tulloch Rule defined “discharge of dredged material”
to include “any addition, including any redeposit, of dredged
material, including excavated material, into waters of the United
States which is incidental to any activity, including mechanized
landelearing, ditching, channelization, or other excavation.”
33 C.F.R. § 323.2(d)(1)(iii); 40 C.F.R. § 232.2(1)(iii).

23. American Mining Congress v. United States Army Corps
of Eng’rs, 951 F. Supp. 267 (D.D.C. 1997).

29a

Appendix B

dredging, soil and other matter are typically excavated from
a site and then transported to some other location for disposal.
The large shovels used in dredging operations inevitably
produce a certain amount of “fallback,” which is nothing
more than residue from the shoveling that falls back into the
dredge site in virtually the same location from which it was
originally taken. It is apparently not possible or feasible to
scoop material from the bottom of a body of water without
having some of it fall back into the water.

The court of appeals in NMA took note of the inevitability
of fallback and of the fact that section 404 does.not, by its
terms, apply to dredging and excavation per se; rather, it
applies to the “discharge” of dredged and fill material. EPA
Region V and the Corps, who were parties to the lawsuit,
did not dispute these central findings. They confined their
arguments to “redeposits” of dredged material, including
incidental fallback, which they viewed as a discharge because
fallback, according to the argument, represents an “addition”
of dredged material to the waters. As related by the court of
appeals in NMA,

[A]ccording to the agencies, wetland soil,
sediment, debris or other material in the waters
of the United States undergoes a legal
metamorphosis 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.

30a

Appendix B

145 F.3d at 1403. In support of their position, EPA and the
Corps cited to several court decisions in which quantities of
bottom material or wetland soils were removed (e.g., by
means of excavation, dredging, landclearing, channelization,
or ditching) from one location and redeposited in another,
resulting in an “addition” of a pollutant to waters of the
United States. See, e.g., Avoyelles Sportmen’s League v.
Marsh, 715 F.2d 897 (Sth Cir. 1983) (landclearing of wetland
by deliberately leveling sloughs filled with rainwater held
to have constituted a discharge of fill material); United States
v. M.C.C. of Florida, 722 F.2d 1501 (11th Cir. 1985)
‘(propellers of tugboats cut into bottom of waterway and
deposited bottom sediment on adjacent sea grass beds);
Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) (placer
miners excavated gravel from streambeds and, after
extracting gold, discharged the leftover material back into
the water); Minnehaha Creek Watershed Dist. v. Hoffman,
597 F.2d 617 (8th Cir. 1979) (construction of dams and riprap
involved placement of material such as rock, sand and cellar
dirt into jurisdictional waters).

The court did not question the analysis in these decisions
but rather found them not particularly germane to the issue
before it. Each involved a project entailing both excavation
and significant redeposit rather than a project that had
excavation as its goal but involved some incidental fallback.
Thus, they were clearly distinguishable on the merits.
Avoyelles did not involve a discharge of dredged material,
but instead was concerned with discharge of fill material;
M.C.C. of Florida was analytically similar to placement of
excavated material at the side of a ditch, since the displaced
material ended up on “adjacent” sea grass beds; Rybachek

_

3la

Appendix B

offered more assistance to the agencies’ position but was
ultimately rejected because the Rybachek court “identified
the regulable discharge as the discrete act of dumping leftover
material into the stream after it had been processed,” and
thereby was distinguishable from incidental fallback, NMA,
145 F.3d at 1406; and Minnehaha “simply held that the
construction of dams and riprap” were within section 404
purview because of the placement of material into the water.

Close examination of the holding in NMA reveals a
deliberate effort by the court of appeals to fashion a narrow
ruling. “We hold only that by asserting jurisdiction over ‘any
redeposit,’ including incidental fallback, the Tulloch Rule
outruns the Corps’s statutory authority.” 145 F.3d at 1405.
It left open the possibility that the agencies might be able to
draw a bright line between “incidental fallback on the one
hand and regulable deposits on the other,” specifically
indicating that “a reasoned attempt by the agencies to draw
such a line would merit considerable deference.” Jd. Despite
the court’s circumspection, certain themes nevertheless
dominate its opinion and provide insight into its reasoning.
First, it is absolutely clear that the court was ruling that
incidental fallback did not constitute an “addition” of a
pollutant to waters of the United States. It remarked, for
instance, that the Tulloch Rule encompassed “a wide range
of activities that cannot remotely be said to ‘add’ anything
to the waters of the United States.” Jd. “Without * * * an
amendment [to the statute to address the presence of the
‘addition’ language in the definition of discharge], the Act
simply will not accommodate the Tulloch Rule.” Jd. at 1410.
“We agree with the plaintiffs, and the district court, that the
straightforward statutory term ‘addition’ cannot reasonably

32a

Appendix B

be said to encompass the situation in which material is
removed from the waters of the United States and a small
portion of it happens to fall back.” Jd. at 1404. “[W]e fail to
see how there can be an addition of dredged material when
there is no addition of material” /d.

Second, the court was obviously concerned about
excavation per se not being within the regulatory ambit of
the CWA. Indeed, the court cited the Corps’ own concerns
in this regard when, in 1986, it added an exemption to the
permit requirement for “de minimis, incidental soil
movement occurring during normal dredging operations.”
51 Fed. Reg. 41,206. 41,232 (Nov. 13, 1986). As the Corps
explained then:

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; NMA, 145 F.3d at 1402 (citing this statement
by the Corps). The court, in its decision, agreed with the
Corps’ assessment of the practical effect of including fallback
within the permitting requirement for discharges of dredged
materials:

33a

Appendix B

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,” 58 Fed. Reg. at 45,017. Asa result, the
Tulloch Rule effectively requires a permit for all
those activities * * *.

145 F.3d at 1403

Third, the court looked upon the two agencies’ efforts
in promulgating the Tulloch Rule as an impermissible
attempt to cure limitations on the Corps’ authority under
section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C.
§ 403, which, unlike the CWA, confers jurisdiction on the
Corps to regulate excavation per se in certain waters.
Generally speaking, those waters are navigable in the
traditional sense and thus cover fewer waters than those
falling within the scope of the CWA. In the court’s view,
the Corps, by regulating incidental fallback pursuant to the
Tulloch Rule, was attempting to enlarge its authority to
regulate excavation activities and fill in the jurisdictional
gap between the Rivers and Harbors Act and the CWA
“simply by declaring that incomplete removal constitutes
addition.” 145 F.3d at 1405. It rejected this approach, opining
that the problem the two agencies were trying to correct
required a legislative, not administrative, solution.

34a

Appendix B

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 jurisdictional reach of the Clean
Water Act or broadening that of the Rivers and
Harbors Act.

145 F.3d at 1404.

Based on the foregoing analysis of NMA, it seems
apparent that NMA is dealing with a distinctly different fact
and analytical pattern than is presented in the case at hand.
NMA is addressing a fact pattern involving incomplete
removal of material from waters of the United States, whereas
here, in Slinger, the entirety of the material that is removed
is redeposited. In NMA there is a net reduction in the amount
of material previously located in the excavation site, whereas
here there is no reduction. As stated by the court, “[b]Jecause
incidental fallback represents a net withdrawal, not an
addition, of material, it cannot be a discharge.” NMA, 145
F.3d at 1404. It further remarked:

Although the Act includes “dredged spoil” in its
list of pollutants, 33 U.S.C. § 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.

35a

Appendix B

145 F.3d at 1404. The situation in NMA, in short, involves
an excavation without any significant “addition,” i.e.,
redeposit, of dredged spoil to the excavation site. This is
significantly different from the Slinger situation. Here we
have an excavation, as in NMA, but the entirety of the
excavated material is redeposited in the trench after the
drainage file is placed at the bottom of the trench. There are
three readily discernible steps in the activities at issue in
Slinger: excavation to make room for the drainage tile;
placement of the drainage tile in the excavation site; and
burial of the tile with the excavated material. While it is true
that in Slinger the excavated material “falls back” into the
trench (either by force of gravity or by mechanical operation
of the Hoes Trenching Machine), the similarity between that
process and the incidental fallback subject to the Tulloch
Rule is largely superficial, for they in fact bear little factual
or legal resemblance to each other — the “addition” that is
missing in NMA is present in Slinger. Moreover, the addition
in Slinger is by no means incidental, since the quantity of
material redeposited amounts to 100%o of the material
excavated and is essential to the successful completion of
the project. As explained by Slinger, if the excavation site
were not refilled with the excavated soil, (i) the drainage
tile, being made of plastic, would likely “float up and not
remain down at the bottom of the ditch” without the weight
of the soil resting on top of it, Oral Arg. Tr. at 11, and
(ii) the terrain would be difficult, if not impossible, to till,
plant seed, and harvest due to the presence of open trenches
in the field, see id. at 12-13. Thus, as conceded by Slinger, it
was important to restore the surface to its earlier
configuration in order to facilitate the farming operation in
the field. In NMA, by contrast, the fallback is an unavoidable
by product of excavation.

36a

Appendix B

The analysis is not altered simply because the three steps
in laying the drainage tile with a Hoes Trenching Machine
occur nearly simultaneously. The essential process and result
would be no different were Respondent to for example,
simply excavate the material by conventional means, haul it
offsite temporarily while the tile is being laid and then return
the material to the site to refill the trench. The tile in either
instance arrives at its ultimate destination (the bottom of the
trench) through a process of excavation and redeposit of large
quantities of material.

Accordingly, for the foregoing reasons, we conclude that
NMA is distinguishable from the situation presented by
Respondent’s operations and therefore not controlling. This
is not a case where material is excavated and minuscule
amounts inadvertently fall back, as was the situation
addressed in NMA. This is a case where all of the excavated
material — more than 2,900 cubic yards according the
Presiding Officer’s calculations — was purposefully returned
to the site from which it was withdrawn. As noted previously,
the NMA court _ommented that it would be inclined to defer
to EPA and the Corps if they made a reasoned attempt to
draw a bright line in a rulemaking proceeding between
nonregulable incidental fallback and regulable redeposits.
There is no reason to believe that, based on the reasoning
and concerns expressed by the court, the redeposits in Slinger
do not clearly fall on the regulable side of the line. Thus,

24. When the two agencies revised the definition of discharge
of dredged material in response to NMA, see supra note 10, they
expressly stated, in reference to the court’s “bright line” remarks,
that the revision was not an “attempt[ ] to draw such a line here.”

(Cont'd)

37a

Appendix B

finding a basis for regulation in this case is entirely consistent
with the court’s reasoning in NMA.

We turn next to a passage Slinger cites from Part IV of
United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). Part
IV is one of several components of an intricately woven
plurality decision that addresses whether the practice of
“sidecasting”** during the excavation of a wetlands drainage
ditch constitutes an “addition” to waters of the United States.
The quoted passage reads as follows:

While the native soil is removed from the ditch
and redeposited on the immediately adjacent land,
the rational interpretation of the statute leads us
to conclude that the movement of native soil a
few feet within a wetland does not constitute the
discharge of that soil into that wetland. The statute
requires, in defining discharge of a pollutant, that

(Cont’d)

64 Fed. Reg. 25,120, 25,121 (May 10, 1999). They consequently
deferred that task for a later time. “In the interim, we will determine
on a case-by-case basis whether a particular redeposit of dredged
material in waters of the United States requires a section 404 permit.”
Id. As noted in SEC v. Chenery, 332 U.S. 194, 203 (1947), “the
choice made between proceeding by general rule or by individual
ad hoc litigation is one that lies primarily in the informed discretion
of the administrative agency.”

25. Sidecasting is simply the practice of depositing excavated
material alongside the trench, rather than removing it to a more
distant location or allowing it to fall back into the trench.

38a

Appendix B

the defendants have added dredged spoil to the
wetland, the statutorily regulated water. While
sidecasting moves excavated dirt from one
particular locus in the wetland to another, it does
not involve the addition of any material to the
wetland. “Addition” requires the introduction of
a new material into the area, or an increase in the
amount of a type of material which is already
present.

133 F.3d at 259.7 Part IV acknowledges that the excavated
material is a pollutant within the meaning of the CWA but

26. The remainder of the paragraph from which the quoted
passage is excerpted continues in the same vein but notes the
existence of a contrary analysis in Avoyelles Sportsmen's League,
Inc. v. Marsh, 715 F.2d 897, 923 (Sth Cir. 1983):

While soil may be definitionally transformed, through
the act of excavation, from a part of the wetland into
“dredged spoil,” a statutory pollutant, it is not added to
the site. Were we to adopt so expansive a definition of
“discharge” that any movement of soil within a wetland
constitutes “addition,” we would not only flaunt the
given definition of “discharge,” but we would be
criminalizing every artificial disturbance of the bottom
of any polluted harbor because the disturbance moved
polluted material about. If Congress intended to reach
such conduct, it need simply to redefine the term
“discharge.” But as the statute is currently drafted,
sidecasting does not involve the addition of pollutants
to a water of the United States. But see Avoyelles
Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923
(Cont'd)

39a

Appendix B

concludes that merely moving the excavated material a few
feet from where it was originally located does not constitute
an “addition” of pollutants to waters of the United States.

Although sidecasting is different in some respects from
the trenching-and-redeposit process employed by Slinger,
the analytical framework of Part IV (requiring the
introduction of new material or additional amounts of the
existing material), if adopted and followed in this case, would
obviously mean that Slinger’s operations would not require
a permit. EPA Region V opposes applying the Part IV
analysis to the instant proceeding, basing its opposition on
the grounds that the quoted passage from Wilson was
not endorsed by the other two judges who made up the
three-judge panel that decided the case and thus represents
the opinion of a single judge.

EPA Region V is correct that Part IV was not endorsed
by either of the two other judges, and as a consequence Part
IV is not controlling precedent even in the Fourth Circuit.
One of the judges simply did not join in Part IV, and the
other wrote separately on the sidecasting issue, expressing
strong disagreement with the interpretation in Part IV. In
his separate opinion,

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2120%3A1. Public record. Not legal advice.