Tulloch Rule (Wetlands)

Don Staples dstaples at livingston.net
Fri Jan 15 11:35:32 EST 1999

        Fri, 15 Jan 1999 07:14:54 -0800 (PST)
        Loren Larson <acf at igc.apc.org>
        Conference "saf.news" <saf-news at igc.apc.org>
        Recipients of saf-news <saf-news at igc.apc.org>

Landowners win wetlands case
                     Thursday, January 14, 1999 

The U.S. Army Corps of Engineers will not seek a Supreme Court review of
a lower court decision that
allows landowners to remove soil from wetlands without a permit. 

This decision is being lauded as a hard-fought victory for landowners by
the National Association of Home
Builders. The U.S. Army Corps of Engineers is not commenting on the

The decision not to seek a Supreme Court review comes after  three lower
court decisions had found the Tulloch Rule, which  regulated the removal
of material from wetlands, to  be an illegal expansion of the U.S. Army
Corps of Engineers  regulatory authority under the Clean Water Act. 

"Since 1977, Congress has made it clear that the Corps is to provide an
efficient wetlands regulatory program. In trying to legislate through
regulation, thereby expanding its authority beyond what Congress
the Corps created an illegal, invalid regulation," said Charlie Ruma,
president of the home builders association. 

The U.S. Army Corps of Engineers and the Environmental Protection Agency
had attempted to regulate the destruction of existing wetlands by
regulating removal of soil under Section 404(a) of the Clean Water Act.
However, Section 404(a) only requires permits be obtained "for the
discharge of dredged or fill material" into wetlands. 

Unable to convince Congress to expand their regulatory authority under
the Clean Water Act, in 1993 the EPA and Corps of Engineers took it upon
themselves to expand their jurisdiction to include activities which had
notconventionally been regarded as "discharges," such as land clearing
and excavation. 

The hook the federal agencies used was "incidental fallback" or
"redeposit" of soil resulting from such previously unregulated
activities. The agencies referred to this interpretation of Section 404
as the Tulloch Rule. 

In effect, the Tulloch Rule gave the federal agencies the authority to
regulate land removal activities even if those activities resulted in
small amounts of dirt and materials falling off a shovel or backhoe and
ending up back in the wetland. 

All three lower courts, however, found that the Tulloch Rule was so
inconsistent with Congressional intent that it could not be sustained
and declared the rule invalid. 

Today, a "discharge" under Section 404 of the Clean Water Act is a
defined as a specific activity that involves adding fill into a wetland,
not removing soil. Thus, activities such as land clearing, ditching,
channelization and even creating a pond are not regulated under federal

Copyright 1999, Environmental News Network
Don Staples
UIN 4653335

Web Offerings:  http://www.livingston.net/dstaples/

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