Slinger Drainage, Inc.

Plain-English summary

Slinger Drainage installed drainage tile across a wetland without a Clean Water Act section 404 permit. The Environmental Appeals Board considered whether returning excavated soil to the trench was nonregulable incidental fallback or a discharge requiring a permit. It held that the company purposefully redeposited all of the excavated material as part of the drainage operation, so the activity was an addition of a pollutant and violated sections 301(a) and 404. The Board affirmed liability and the $90,000 civil penalty.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1311(a), 1319(g), 1344, and 1362; 40 C.F.R. §§ 22.27(b), 230.3, and 232.2; 33 C.F.R. § 323.2.
• Outcome: Liability for the unpermitted discharge was affirmed, and the $90,000 civil penalty was affirmed.
• Key point: Purposeful redeposition of all excavated material as an essential step in a drainage project is a regulable addition of a pollutant, not incidental fallback.

Full text (EPA EAB public release)

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IN RE SLINGER DRAINAGE, INC.
CWA Appeal No. 98–10

FINAL DECISION

Decided September 29, 1999

Syllabus
Respondent Slinger Drainage, Inc. (“Slinger”) is in the business of installing drainage
tile. It used a Hoes Trenching Machine to install 26,000 linear feet of drainage tile over a
50-acre area of a wetland for the purpose of draining the wetland and converting it to
farming use. 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 a continuous line of drainage tile is fed by the machine.
Approximately 50% of the soil that is removed to create the trench is immediately dropped
back into the trench, and the remaining 50% 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. Subsequently, a
tractor blade returns to the trench any small bits of material still remaining on the side of
the trench. This process results in the excavated material being returned to the trench.
Slinger did not apply for a permit under the Clean Water Act before undertaking the activity that is the subject of this proceeding.
EPA Region V (“the Region”) filed an administrative complaint against Slinger alleging that the company had violated CWA section 301(a), 33 U.S.C. § 1311(a), by failing to
obtain a permit from the U.S. Army Corps of Engineers (“Corps”) as required under CWA
section 404, 33 U.S.C. § 1344, before discharging a pollutant—in this case dredged spoil—
into a wetland. Central to the Region’s allegation was that Slinger’s activities caused an
“addition” of dredged material to the wetland, thereby satisfying the definitional requirements of a regulable “discharge” under the statutory language and implementing regulations under section 404. The Region proposed a penalty amount of $90,000.
Following an oral evidentiary hearing, the Presiding Officer found Slinger liable as
alleged and assessed a penalty of $90,000.
On appeal, Slinger maintains that while it excavated dredged material, a CWA pollutant, its redeposit of such material involved not a regulable “discharge” or “addition” under
the statute but rather “incidental fallback,” the regulation of which was allegedly precluded by National Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998)
(“NMA”). NMA upheld a district court’s decision permanently enjoining EPA and the Corps
from enforcing the so-called Tulloch Rule, 40 Fed. Reg. 45,008 (Aug. 25, 1993), which
defined the “discharge” of dredged materials to include “any redeposit” of such material.
NMA held that the Tulloch Rule was beyond the scope of the agencies’ authority under the
CWA to the extent the rule asserted authority over redeposits that consist same only of

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“incidental fallback,” because such fallback does not amount to a regulable “addition” of
material under the CWA. NMA described “incidental fallback” as an “inescapable byproduct”
of removal activities such as dredging, landclearing and excavation that occurs when small
amounts of soil or sediment fall back into the water to virtually the spot from which they
originated. 145 F.3d at 1403. Emphasizing that the CWA only regulates “discharges” and not
removal, NMA held that the Tulloch Rule impermissibly extended the CWA’s authority to
removal activities, such as dredging, that are within the proper purview of section 10 of the
Rivers and Harbors Act of 1899. Citing NMA, Slinger asserts that its activities resulted in “incidental fallback” because its redeposits of dredged material were “incidental” to the laying
of drainage tile and resulted in redeposit of the material to its original location. As such,
Slinger maintains that its activities are not regulable under CWA section 404.
Slinger also challenges its liability by arguing that its activitie did not cause sufficient
disturbance to the wetland to constitute a regulable discharge under the CWA. Specifically,
Slinger states that since it did not bring new material from outside the wetland nor move
material from one part of the wetland to another, but merely restored dredged material to
its original location, no “addition” of material took place.
Alternatively, in the event the Board disagrees with it on the issue of liability, Slinger
asserts that the $90,000 penalty is “unconscionable.”
Held: (1) NMA is not applicable to Slinger’s activities and therefore does not preclude
their regulation. In contrast with the “incidental fallback” of small amounts of excavated
material at issue in NMA, Slinger’s activities involved the redeposit into a trench of 100%
of the material removed from it—approximately 2,900 cubic yards. Further, Slinger’s redeposits were not an unavoidable “byproduct” of a larger removal action that lay beyond the
regulatory reach of the CWA; instead, the redeposits constituted a discrete step and purposeful operation essential to the success of the drainage project. While NMA is not applicable to Slinger’s activities, today’s decision is nonetheless consistent with NMA. The NMA
court indicated that it would defer to a “reasoned attempt” by the Agency to distinguish
between regulable deposits and nonregulable incidental fallback, NMA, 145 F.3d at 1405,
and there is no reason to believe the redeposits here do not clearly fall on the regulable
side of the line.
(2) A textual reading of the applicable Agency and Corps regulations supports treatment of Slinger’s redeposits of dredged material as an “addition” of a pollutant, thus establishing the company’s CWA liability. By excavating material from the wetland, thereby creating a pollutant as defined by the regulations, and subsequently discharging the pollutant
into the wetland, as also defined by the regulations, Slinger necessarily “added” a pollutant to the wetland. Therefore the company’s activities are regulable under CWA sections
301(a) and 404.
(3) The Presiding Officer’s penalty assessment, which considered all the necessary
statutory factors, contains no obvious errors, and Slinger has provided no support for its
contention that the assessment is “unconscionable.” Therefore, the $90,000 penalty assessment is affirmed.

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

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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 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 $90,000.1

I.
Slinger is in the business of installing field drainage tile.2 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.3 The precise 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

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. Id.; 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 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).

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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.4
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.5 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
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 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.
4

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. § 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 habitat associated with wetlands.
Initial Decision at 4.

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discharge of dredged or fill material into the navigable
waters6 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 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),7
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.

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).
6

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

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CWA § 502(12), 33 U.S.C. § 1362(12).8 The term “addition,” as it appears
in the foregoing section of the Act, is not separately defined elsewhere
in the statute or regulations.9 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:
[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

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.”
8

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.”

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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.

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 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 socalled Tulloch Rule, 40 Fed. Reg. 45,008 (Aug. 25, 1993), which incorporated the “any redeposit” language into the definition of discharge of
dredged materials.10 The court 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.
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.
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)).

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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 pollutants 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 nonwetland 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 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.” Id. 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.11
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 404.12 Accordingly, Slinger argues that the finding of
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).

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 installing
drainage tile by means of a Hoes Trenching Machine. In addition, Slinger even appears to
Continued
12

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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.” 13 Id. at 2. EPA Region V
argues that this process constitutes an “addition” and hence a “‘discharge
of pollutants’ under prevailing case law.” Id. 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.” Id. 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.” Id. 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.” Id. 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,

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.

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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

II.
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.15
These activities are 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
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 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).

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:
15

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 the clear language in section 301(a) of the CWA, this has been the agencies’ longstanding
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
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.

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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.” Id. (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 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 “[c]onstruction * * * 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 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.

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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 (5th Cir. 1983) (“Congress recognized the
importance of protecting wetlands”).16
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 Rule, 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.[17] Activities that involve replacing existing field
drainage tiles where the replacement does not increase
the extent of drainage beyond 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).
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 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 for
benefits.
Gunn v. U.S.D.A., 118 F.3d 1233 (8th Cir. 1997).
17

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

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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 Cmty. v. EPA,
971 F.2d 1155, 1165 (5th 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.” Id. at 1167.
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 (5th 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

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activity on the wetland, as the pumping example proves. With the exception of certain exempted activities (not applicable here),18 the only 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.19 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.

III.
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

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. § 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.
18

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).

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States and requiring a permit under section 404 of the CWA.20 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, 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,21 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.” 22 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.23 During dredging, soil and other matter are

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 tiling work is a wetland. Rather, according to Slinger, “The actual issue is whether or not the soil 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.”
Id. at 5–6.
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 landclearing, 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).

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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.
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 (5th
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).

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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 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.” Id. 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.” Id. “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.”
Id. at 1410. “We agree with the plaintiffs, and the district court, that the
straightforward statutory term ‘addition’ cannot reasonably 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.”
Id. at 1404. “[W]e fail to see how there can be an addition of dredged
material when there is no addition of material.” Id.
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

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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:
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. As a 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.

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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]ecause 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.
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 tile 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% of the material excavated and is essential to the successful completion of the project. As

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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 byproduct of excavation.
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 commented 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.24
Thus, finding a basis for regulation in this case is entirely consistent with
the court’s reasoning in NMA.

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.” 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.”

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B.
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” 25 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 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.

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.
25

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 (5th 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 (5th Cir. 1983) (holding that “addition,” as included in the definition of
“discharge,” could include “redeposit” of dredged material which need not come
from an outside source).
Wilson, 133 F.3d at 259–60.

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133 F.3d at 259.26 Part IV acknowledges that the excavated material is
a pollutant within the meaning of the CWA, but 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, the latter judge, Judge Payne, examined in detail the
text of the controlling regulations (defining dredged material and discharge of dredged material) and their regulatory history. He concluded
that the regulations, from the outset of the implementation of section 404,
“prohibited the addition into waters of the United States any material that
was excavated or dredged from the waters of the United States without
a permit to do so.” 133 F.3d at 271. His conclusion included the following textual analysis of the regulations:27
The regulations define “dredged material” to mean “material that is excavated or dredged from waters of the
United States.” 33 C.F.R. § 323.2(c). The “discharge of
dredged material” was defined to mean “any addition of
dredged material into the waters of the United States.”
(emphasis added). 33 C.F.R. § 323.2(d). Reading these
two sections of the regulation together, it is rather clear
that, without a permit to do so, one may not add into

27
The regulations referred to in the opinion are those of the Corps, which are published in volume 33 of the Code of Federal Regulations but are virtually identical to those
of EPA, which are published in volume 40 of the Code of Federal Regulations.

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waters of the United States material that is excavated or
dredged from waters of the United States. Hence, if the
wetlands here at issue is a “water of the United States”

• • *, then §§ 323.2(c) and (d) clearly prohibit what the
    parties in this appeal agree to be sidecasting in these wetlands here at issue without a permit.
    133 F.3d at 269. We are in complete agreement with this analysis. A textual approach to interpretation seems particularly felicitous in the present
    circumstances, since it promotes protection of wetlands consistent with
    congressional concerns over their loss, yet at the same time is in full
    accord with the limitations on the agencies’ authority over activities that
    involve dredging but not discharges.
    Judge Payne also examined the case law, including cases28 relied
    upon by EPA and the Corps in NMA but which the court in NMA ultimately found to be distinguishable for purposes of its Tulloch Rule analysis, as discussed earlier. The holding in each of the cases supports the
    proposition that a redeposit of dredged material constitutes an addition
    of a pollutant—and hence, a discharge of a pollutant—into waters of the
    United States. Judge Payne cited those cases for that proposition,29 and
    we think they also provide supporting authority for EPA Region V’s position in the present case, notwithstanding the fact that the NMA court did
    not find them helpful to EPA’s and the Corps’ position in the context of
    the Tulloch Rule. The distinction between the two situations is clear:
    Slinger’s activities do not involve incidental fallback of negligible quantities of soil associated with excavation activity as under the Tulloch Rule,
    but instead involve the purposeful redeposit of 100% of the material
    excavated from the excavation site.

28
See, e.g., Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990); United States v. M.C.C. of
Florida, 722 F.2d 1501 (11th Cir. 1985); Avoyelles Sportmen’s League v. Marsh, 715 F.2d 897
(5th Cir. 1983);
29
Judge Payne relied on the decisions in part because each, in addition to being based
upon a textual analysis of the regulations, also looked to the adverse effects of the redeposits on the subject waters as a basis for concluding that a section 404 permit was
required. We do not think it is necessary to go beyond a textual analysis of the regulations
in order to conclude that a permit is required for the types of activities involved in those
cases or in instant case. As noted earlier, the role of adverse environmental effects on wetlands is not pivotal for purposes of deciding whether or not a permit is needed.

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C.
The Presiding Officer in the case below cited Avoyelles and
Rybachek, as well as a third case, United States v. Sinclair Oil Co., 767 F.
Supp. 200 (D. Mont. 1990), in support of his conclusion that Slinger’s
removal and redeposit of the excavated material constitutes a discharge
under the CWA. Initial Decision at 6. As grounds for overturning the
Presiding Officer’s liability determination, Slinger argues that the cases are
distinguishable, asserting that none is on point with the fact pattern in the
present case and each involved extremely large-scale land clearing
“where bottom soil from a wetland or stream was scraped and removed
large distances for the specific purpose of filling other wetlands or altering the bottom of a stream. None of these cases, held that soil from within the wetland redeposited directly back into the same place in the wetland would constitute an ‘addition’.” Slinger App. Br. at 7.
Slinger is correct in noting these distinctions, but the distinctions by
themselves prove little. The important point to be gleaned from each of
the cases is that material taken from a particular body of water (wetland
or stream) and redeposited into that same body of water, albeit not at the
same exact location, is deemed a pollutant and its reintroduction into the
body of water is deemed an addition of a pollutant to that body of water,
thus constituting a discharge of a pollutant into waters of the United
States. The fact that in those cases the removal site and the redeposit site
are not identical does not prove that the cases are inapplicable; it simply
points out that the case before us is one of first impression, which we are
now called upon to decide. From the textual analysis of the regulations
discussed above, we see that removal of material from waters of the
United States is a legally discrete event that is separate from the addition
of that same material into waters of the United States.
The Presiding Officer’s finding of liability against Slinger is fully supported by a textual analysis of the regulations. Dredged material, by its very
nature, is something that has been removed “from” a body of water by
dredging or excavation; it does not exist as such until it is removed from a
body of water. Once it comes into existence, it becomes a pollutant as
defined in section 502(6) of the Act. If it is subsequently redeposited “into”
the same body of water, but at another location, the case law uniformly
treats the redeposition as an addition of a pollutant to waters of the United
States. The result should be no different when, as here, the dredged material is not just redeposited into the same body of water, but is also redeposited into the same location from which it was originally removed. There
is nothing in the Act or regulations to suggest that dredged material in
those circumstances, having once attained pollutant status, somehow loses

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that status upon redeposition into its former location. Redeposition of
dredged material into a body of water constitutes the discharge of dredged
material and, hence, an addition of a pollutant to waters of the United
States for which a permit is required under section 404 of the Act.
Because Slinger did not have a permit at the time of the discharge,30
we sustain the Presiding Officer’s finding of liability. A Hoes Trenching
Machine uses a chainsaw-type arm to remove the soil from the bottom
of the wetland and then redeposits the soil back into the wetland, thus
fulfilling the definitional requirements of the regulations. Accordingly, for
the foregoing reasons, we also reject Slinger’s contention that Wilson
lends support to its position.
We turn now to consideration of the penalty assessed by the
Presiding Officer against Slinger.

IV.
EPA Region V sought a civil penalty of $90,000 in the complaint it
filed against Slinger. As related by the Presiding Officer in the initial decision, Slinger maintained that the penalty proposed in the complaint was
unconscionable and inappropriate based on the facts of the case “but [it]
offer[ed] no argument in support of its contentions.” Initial Decision at 10.
The Presiding Officer nevertheless proceeded to discuss a series of matters—the nature and circumstances of the violation, the extent of the violation, the gravity of the violation, Slinger’s ability to pay the penalty, its
history of prior violations, culpability, economic benefit, and other factors as justice may require—all of which are factors that must be separately considered before assessing a penalty under the CWA and the

Nor has Slinger shown entitlement on this record to an exemption under section
404(f) of the Act.
30

31

As summarized by the Presiding Officer:

Administrative penalties for violations of CWA § 301(a) are determined in accordance with CWA § 309(g). Section 309(g)(2)(B) provides for class II civil penalties of up to $10,000 per day for each day a violation continues and a maximum
penalty of $125,000. Section 309(g)(3) directs that “the nature, circumstances,
extent and gravity of the violation, or violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability,
economic benefit or savings (if any) resulting from the violation, and such other
matters as justice may require” are to be considered in determining the amount
Continued

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applicable regulations.31 Upon consideration, he assessed a $90,000 civil
penalty against Slinger, as requested in the complaint.
We see no obvious errors in the Presiding Officer’s penalty assessment, and, therefore, we see no reason to change his penalty assessment.32 On appeal Slinger has maintained its stolid silence, asserting only
that the penalty is “unconscionable,” Slinger App. Br. at 10, and has elected to ignore the Presiding Officer’s cue to supply further explanation to
support its contention. The penalty is affirmed.

CONCLUSION
For the reasons expressed above, an administrative penalty of
$90,000 is assessed against Slinger. Payment of the penalty shall be made
within sixty (60) days of receipt of this final order, by cashier’s check or
certified check payable to the Treasurer, United States of America, and
forwarded to:
EPA-Region V
Regional Hearing Clerk
Post Office Box 70753
Chicago, IL 60673
So ordered.

of any penalty to be assessed. In addition, Consolidated Rule of Practice 22.27(b)
provides that “if the Presiding Officer decides to assess a penalty different in
amount from the penalty proposed in the complaint, the Presiding Officer shall
set forth in the initial decision the specific reasons for the increase or decrease.”
40 C.F.R. § 22.27(b).
Initial Decision at 10.
32
As we have repeatedly emphasized, in cases where, as here, “the Presiding Officer
assesses a penalty that falls within the range of penalties provided in the penalty guidelines,
the Board generally will not substitute its judgment for that of the Presiding Officer absent a
showing that the Presiding Officer has committed an abuse of discretion or a clear error in
assessing the penalty.” In re SchoolCraft Constr., Inc., 8 E.A.D. 476, 492 (EAB 1999)
(EAB, July 7, 1999), (citing In re Pacific Ref. Co., 5 E.A.D. 607, 612 (EAB 1994); In re Ray
Birnbaum Scrap Yard, 5 E.A.D. 120, 124 (EAB 1994)).

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