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Wetlands

The government filed an appeal and was granted a stay against the enforcement ban while the appeal was heard. On June 19, 1998, the Federal Appeals Court for the District of Columbia Circuit unanimously upheld the lower court's decision invalidating the Tulloch rule and eventually lifted the stay on the enforcement ban. On September 28, 1998, the full panel of judges of the Federal Appeals Court denied a government request for a rehearing and left an appeal to the U.S. Supreme Court as the last option for reversal. In declining to make that appeal, all legal opportunities for reinstating the Tulloch rule have expired.

On January 17, 2001, the Corps and EPA published final revisions in the Federal Register (Vol. 66, p. 4550-4575) to the definition of “discharge of dredged material” (Tulloch Rule) in response to the remand from the United States Court of Appeals in National Mining Association v. Corps, 145 F3 § 1399 (D.C. Cir. 1998). This final rule amended the agencies’ regulations defining the term “discharge of dredged or fill material”. The new rule states that the agencies “regard the use of mechanized earth-moving equipment” to conduct activities such as landclearing, ditching channelization, and in-stream mining as resulting in the regulable discharge or dredged or fill material, “unless project-specific evidence” shows that the activity results in only “incidental fallback.” The rule became effective April 17, 2001.

NSSGA believes the final Tulloch rule, relating to discharged, dredged or fill material, improperly shifts the burden to the aggregate producer to prove that the activity undertaken was designed and conducted so as to result only in “incidental fallback”. The Tulloch rule creates a presumption that, from a technical standpoint, is virtually impossible to overcome. This situation also creates the potential for criminal liability for aggregate producers.

  • The courts have consistently said that in passing Section 404 of the Clean Water Act Congress intended to regulate the addition of dredged or fill materials, not their removal.
  • By asserting jurisdiction over 'any redeposit,' including incidental fallback, the Tulloch rule outruns the Corps' statutory authority.
  • Without clear agency guidance, NSSGA members are required to prove on a case-by-case basis that their activities do not result in more than incidental fallback and therefore do not require a permit.

  • This situation improperly shifts the burden of proof to the aggregate producer and creates the potential for criminal liability for aggregate producers.
  • NSSGA believes remedies for imperfect laws appropriately reside with Congress, not arbitrary agency regulation.
  • As part of our Environmental Guiding Principles, NSSGA encourages its members to meet all established environmental regulatory requirements, and where possible, to do better than the law and regulations require.
  • The aggregates industry is uniquely able to, and routinely does, contribute to environmental enhancement by implementing programs such as landscaping, innovative reclamation, flood control, erosion control, and wildlife habitat development.

EPA’s Wetland Home Page
USDA’s Wetland Reserve Program
National Marine Fisheries Service Restoration Center
National Wetlands Inventory Center

Publications

Wetlands Protection and Aggregates
Isolated Wetlands – Elements of State Legislation and Supporting Materials

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