New "Tulloch Rule"
March 13, 2001
The EPA and Corps announced on January 9 that
they have signed a final rule closing the “loophole” in CWA wetlands
regulation the agencies claim was created by a 1998 D.C. Circuit court
decision invalidating the so-called “Tulloch Rule.” According to the
announcement, the final rule modifies the definition of “discharge of
dredged material” by clarifying the types of activities the Corps and EPA
believe should be regulated as “discharges of dredged material.” The rule
reportedly will regulate the use of mechanized earth-moving equipment to
conduct landclearing; ditching; channelization; in-stream mining; or other
earth-moving activity in waters of the U.S. as a “discharge of dredged
material,” unless project-specific evidence shows that the activity results
in only “incidental fallback.” The rule also provides a definition of what
constitutes non-regulable incidental fallback that the agencies believe is
consistent with the recent D.C. Circuit court decision.
Related Practices