In a recent decision, the D.C. District Court invalidated the Corps and EPA's definition of "discharge" of a pollutant under the Clean Water Act. The court's language is instructive and has implications for the agencies' proposed Nationwide Permits. Here's a sample:
"The Court of Appeals, in striking down Tulloch I, recognized the difficult task of distinguishing incidental fallback, which cannot be regulated under the Clean Water Act, from other redeposits, which can. Because the Act sets out “no bright line” separating one from the other, the court suggested that “a reasoned attempt by the agencies to draw such a line would merit considerable deference. 145 F.3d at 1405. The agencies, however, have made no such attempt. See United States' Cross-Mot. for Summ. J. at 14 (“Although the Rule provides important clarification of the distinction between regulable redeposits and incidental fallback, it does not create a ‘bright-line’ test.”). Although the agencies contend that a bright-line rule would not be “feasible or defensible,” id. at 15, the Court of Appeals has made clear, and the government has acknowledged, that not all uses of mechanized earth-moving equipment may be regulated. The agencies cannot require “project-specific evidence” from projects over which they have no regulatory authority."