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.