Final “Tulloch” 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 “incidental fallback.”

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.