Regulation To Strengthen Wetlands Protection
Adapted from an EPA Press Release
In January, the Environmental Protection Agency (EPA) and the
U.S. Army Corps of Engineers (Corps) signed a final regulation
to strengthen wetlands protection. The new rule (65 Fed. Reg.
4550) clarifies the types of activities that are likely to result
in a discharge of dredged materials regulated under the Clean
Water Act (CWA).
Section 404 of the Clean Water Act requires a permit before
dredged or fill material is discharged into wetlands. Mechanized
land clearing, ditching, draining and stream channelization
has long been problematic under the CWA because of confusion
over whether the excavation and spilling of debris associated
with these activities constitutes discharge of materials. In
1993, the EPA and the Corps finalized regulations, known as
the Tulloch Rule defining the discharge of
dredged material to include the incidental fallback of
any excavated materials that occurs during dredging operations.
In 1998, the U.S. District Court of Appeals for the District
of Columbia held that the Corps exceeded its authority in regulating
incidental fallback and enjoined the Corps from
enforcing the rule. Since this decision it is estimated that
more than 20,000 acres of wetlands have been destroyed and 150
miles of streams drained and channelized because of confusion
over what activities require a permit.
The recent regulation seeks to clear up this confusion, indicating
that the Corps and the EPA will regard land-clearing, ditching,
channelization, in-stream mining and other mechanized earth
moving activities as resulting in a discharge of dredged materials
unless project-specific evidence shows the discharge to be only
The new rule defines incidental fallback in keeping
with the 1998 court decision and specifically outlines activities
the agencies consider likely to result in discharge of dredged
materials, thus requiring a 404 permit.
On April 17, 2001, after reviewing the Clinton-era regulation,
the Bush Administration announced its support of the new rule,
allowing it to take effect immediately.