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ARTBA Victorious in Tulloch Wetlands Rule Litigation

Wed February 22, 2006 - National Edition
CEG



The American Road & Transportation Builders Association (ARTBA) Feb. 3 won a major legal victory when a federal court rejected efforts by the U.S. Army Corps of Engineers to keep ARTBA from challenging a proposal to expand federal regulation of wetlands.

The case will now return to federal district court where ARTBA and its allies will challenge the proposal on its merits. ARTBA was joined in the case by the National Stone, Sand & Gravel Association and several other organizations.

The United States Court of Appeals for the District of Columbia Circuit agreed with ARTBA saying “It is obvious that industry will face hardship if review of its challenge is denied.”

The court also said the current rule places developers in the position of applying for a permit which may or may not be legal or facing civil or criminal penalties for failing to do so.

At issue is the so-called “Tulloch rule,” which involves a 1993 decision by the Corps of Engineers and U.S. Environmental Protection Agency to extend 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 affect activities including ditch digging, channelization and excavation.

ARTBA’s brief, filed March 25, 2005, 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.

ARTBA and its litigation partners first challenged the Tulloch rule nearly 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 have still been the same, the association said.