Memorandum on Issuance of Final Rule Responding to National Mining Association Decision between EPA Regions and Army Corp Divisions and Districts

May 10, 1999

TO:

U.S. Environmental Protection Agency Regional Offices

U.S. Army Corps of Engineers Divisions and Districts

FROM:

SUBJECT: Issuance of Final Rule Responding to National Mining Association Decision

1. On June 19, 1998, the U.S. Circuit Court of Appeals for the District of Columbia Circuit affirmed the district court's decision regarding the "Tulloch rule" (see, 58 Fed. Reg. 45008) (American Mining Congress v. United States Army Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997), aff'd sub nom., National Mining Association v. United States Army Corps of Engineers, 145 F. 3d 1399 (D.C. Cir., 1998).). In response, EPA and the Corps have recently prepared and published a final rule in order to conform the regulations to the decision and injunction. A copy of that rulemaking is attached. EPA and the Corps will also expeditiously undertake additional notice and comment rulemaking in order to enhance clarity, certainty, and consistency in determining what activities are subject to section 404 in light of the National Mining Association decision.
    
2. A copy of the guidance issued on April 11, 1997, in response to the district court's decision in the subject case is also attached. That guidance should continue to be followed, for an interim period, until such time as the additional rulemaking identified above is completed, with the exception that Corps Districts should no longer provide potential applicants with the options identified in paragraph 5 of that guidance. If a Corps District office receives or is already processing an application for a permit covering activities involving only "incidental fallback" (see the final rule's preamble and the April 1997 guidance), then the Corps office should inform the permit applicant that a section 404 permit is not required for the activity.
    
3. Determining whether a particular redeposit constitutes "incidental fallback" involves the exercise of case-by-case judgment. In the preamble to the attached final rule, EPA and the Corps have put the regulated community on notice that we intend to regulate discharges that we find, based on the particular circumstances, do in fact result in an addition of pollutants to waters of the U.S. When EPA or Corps field staff have questions about a particular activity or project that are unresolved after reviewing the attached final rule and the April 1997 guidance, they should contact their respective headquarters office to discuss the issue and reach an appropriate decision.