PLP Position Paper on Incidental Fallback


Incidental Fallback

“Incidental Fallback” represents a net withdrawal, not an addition of material. Incidental Fallback cannot be a discharge within the meaning of any State or Federal Clean Water Acts (CWA) as the CWA only permits and regulates additions. All gold mining suction dredges are designed to withdraw heavy metal (based on their specific gravity) from gravels and soils, it cannot be said that suction dredges add anything within the meaning of the CWA.  It is simple math, the difference between addition and subtraction. Those activities that add can require a 401, 402, or 404 permit, those that subtract do not require a permit at all. That is the intent of Congress. The EPA and the Army Corp has for the past 30 years tried to redefine “Incidental Fallback” under a regulated and permitted “redeposit” category, but the courts have found this agency practice invalid on numerous occasions and instructed the EPA and Army Corp to remove their offending regulatory expansion.

To illustrate this point originally in Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1404 (D.C.Cir.1998). The court explained that, “[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge” and questioned “how there can be an addition of dredged material when there is no addition of material.” Emphasis added.


This understanding of “discharge” excludes the small-volume incidental discharge that accompanies excavation and landclearing activities.   Senator Muskie explained that “the bill tries to free from the threat of regulation those kinds of manmade activities which are sufficiently de minimis as to merit general attention at the State and local level and little or no attention at the State and local level and little or no attention at the national level.” Senate Report on S. 1952, 95th Cong., reprinted in 1977 Legis.Hist. at 645.  Senator Domenici stated that “we never intended under section 404 that the Corps of Engineers be involved in the daily lives of our farmers, realtors, people involved in forestry, anyone that is moving a little bit of earth anywhere in this country that might have an impact on navigable streams.” Senate Debate, id. at 924.

This holding stands today and is reflected from the National Association of Homebuilders v. Corps decision (D.D.C. 2007) invalidating the January 17, 2001, amendments to the Clean Water Act Section 404 regulatory definition of “discharge of dredged material” (referred to as the “Tulloch II” rule). The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) have promulgated a joint final rule to amend this definition by conforming the Corps’ and EPA’s regulations to the language of the court’s opinion by deleting language from the regulation that was invalidated.

Agencies like to try and say that sediment movement or the turbidity created by suction dredging also creates a discharge, but in Frobel v. Meyer, 13 F. Supp.2d 843 the court ruled: “Redepositing of indigenous sediment caused by state agency’s removal of dam did not result in any “discharge of dredged material” that would require permit from Army Corps of Engineers under Clean Water Act (CWA) and either possible version of implementing regulations, even if manner in which dam was removed created a “scouring action” that disturbed sediment and funneled it downstream. Federal Water Pollution Control Act, § 404(a), as amended, 33 U.S.C.A. § 1344(a); 33 C.F.R. § 323.2(d).”

The State, as mandated by the CWA and funded by federal law, cannot carry out an objective when it conflicts or is inconsistent with express Congressional intent, exemptions, and purpose.  See CA Coastal Commission v. Granite Rock 480 U.S. 572.

2015 PLP/MMAC Oktoberfest Fundraiser


PLP, MMAC (Minerals & Mining Advisory Council), Sleepy Bear Mining and American Prospector Treasure Seeker ask you to save these dates for this event:

Friday, October 9th thru Monday, October 12th
 Sleepy Bear Mine, Randsburg CA

This is a friendly reminder for those who are planning on attending this great event to please RSVP online before Sunday, September 13th. This is in order to properly prepare for the amount of food required for the Saturday night BBQ. If your RSVP event entry donation is paid after September 13th, you are still very welcome to attend the event, although attending the BBQ will require an RSVP by this date.

Please be aware, due to BLM requirements, all signups must be done ONLINE in advance. Detailed information and the link to sign up for this year’s Oktoberfest Outing can be found here.

We are NOT able to take registrations at the gate.  In addition, we need to get our numbers together for planning purposes. The entry donation can either be paid online with any major credit card or PayPal account or in person at the American Prospector Treasure Seeker Store.  If you have ANY problems with signing up online, please contact American Prospector Treasure Seeker at 951-676-2555.

This event will take place in honor of mining rights legend Jerry Hobbs, the founder of Public Lands for the People. Jerry dedicated many years of his life to fighting for our rights to access public lands. The 2015 PLP/MMAC Oktoberfest event marks the 25 year anniversary for PLP.

This event offers gold prospectors a rare opportunity to search for gold on 400 acres of gold-bearing ground that has been off limits to the public. Gold nuggets have been recovered by detectorists at every fund raiser held on this claim, and dry washing is excellent as well. There is ample room on this property for folks to move around and find places that yield good gold. PLP Board Members will be working nonstop at this event to ensure its success, so feel free to stop by their booth and show them how you’ve done in the field.

We have a lot of great things planned for this family friendly event. We’re super excited and can’t wait to see you out there! Please move this up your priority list and RSVP today. If you were at last year’s event, you know it was a great success.  If you weren’t able to make it last year, you surely won’t want to miss it this year!  Please feel free forward this email and information onto your friends, family, club members etc.  Any and all help promoting the event would be greatly appreciated.

 There will be some great prize giveaways as well. Here is the list to date:


  • 151S Dry Washer from Keene Engineering 
  • Whites Sierra SST Super Trac Detector from PLP
  • Gold Cube from Mike Pung & Red Wilcox
  • Dry Concentrator from Mad Mining
  • 4 gram Gold Nugget from Miners Keepers 
  • Pottery Pieces Teri Hudson Pottery
  • Gold detector (model TBD) from Whites Electronics
  • Gold Bug Pro detector from Fisher Electronics
  • Gold’N Sand Hand Dredge from Red Wilcox
  • Crystalline Gold Nugget from Mountain Man Mining
  • Gold and Quartz Specimens from John Howell
  • 122 Gram Campo del Cielo polished slab Meteorite from George Haymans
  • Several fantastic prizes (they won’t tell us!) from Minelab USA

In addition, Fisher, Whites, and Minelab USA are scheduled to attend the Oktoberfest and set up booths to answer any product questions you may have.

We are still in need of volunteers for a variety of functions, including directing participants to camping areas, helping setup food for Saturday night’s BBQ and Sunday morning breakfast, cooking, serving, and other event needs. We know some of you have already stepped up to help; thank you very much. Additionally, if anyone has access to bulk supplies of paper plates, napkins, plastic utensils, paper cups etc. please let American Prospector Treasure Seeker know as soon as possible. This would be a tremendous help to the event.

 We Hope to see you there,

PLP Board of Directors