ARTBA Again Victorious in Tulloch Wetlands Litigation

Mon March 19, 2007 - National Edition
Construction Equipment Guide

The American Road & Transportation Builders Association (ARTBA) on Jan. 30 won another major legal victory when a federal court struck down a U.S. Army Corps of Engineers proposal to expand federal regulation of wetlands.

The U.S. District Court for the District of Columbia rejected the latest version of the Corps’ “Tulloch rule.” The original case dates back to 1993 when the Corps and U.S. Environmental Protection Agency (EPA) proposed extending the legal definition of “discharge of dredged material” in wetlands development decisions to include the re-deposition of material caused by earthmoving equipment incident to land clearing and other excavation activities.

The agencies’ intent was to use “incidental fallback” as a basis for requiring federal permits under the Clean Water Act (CWA). The challenged regulations affected activities including ditch digging, channelization and excavation.

ARTBA, the National Stone, Sand & Gravel Association and several other organizations first challenged the Tulloch rule approximately a decade ago, winning an initial court decision in 1997 that reduced the jurisdiction of the Corps to regulate construction activities in wetland areas. The Clinton Administration unsuccessfully appealed the ruling five separate times. In 2001, the Corps redrafted the rule, but the practical effects were still the same.

ARTBA argued the CWA was never meant to regulate activities, which only result in an “incidental fallback” of materials into the waters of the United States, and highlighted the negative impacts of the Corps proposal on the transportation construction industry. The Jan. 30 ruling from the court agreed, stating that the latest Corps proposal “violates the Clean Water Act” and “is invalid.”

The Corps and the EPA are now prevented from enforcing the Tulloch rule. It is unclear whether the Corps will appeal the ruling or attempt to redraft the rule a third time.

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