Builders to EPA, Corps: 'New' Tulloch Rule will prove just as illegal as old Tulloch Rule

The latest attempt by the EPA and the U.S. Army Corps of Engineers to regulate wetlands removal activities through a new definition of dredged materials under the Tulloch Rule will only result in one more illegal regulation, the National Association of Home Builders said today.

WASHINGTON, Jan. 11 /PRNewswire/ -- The latest attempt by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) to regulate wetlands removal activities through a new definition of dredged materials under the Tulloch Rule will only result in one more illegal regulation, the National Association of Home Builders (NAHB) predicted today.

``We find it ironic that on January 9th, the same day the Supreme Court ruled against the Corps regulation's of isolated wetlands under the Clean Water Act, the EPA and the Corps are ignoring the law once again and are well on there way to creating another illegal regulation with their latest version of the Tulloch Rule,'' NAHB President Robert L. Mitchell, a home builder from Rockville, Md., said. ``The agencies are simply putting a new label on an old, illegal regulation.''

A previous version of the Tulloch Rule wetlands regulation had been struck down in three federal court decisions and NAHB is strongly considering legal action in light the agencies' latest Tulloch reincarnation.

The Tulloch Rule came about as a result of questions regarding the kinds of activities that can and cannot be regulated under the Clean Water Act (CWA). Under the CWA's 404 Program, the Corps, as well as the EPA, regulates the ``discharge'' of dredged and fill material into wetlands. A discharge is a specific activity that involves the addition of material into a wetland. Since its inception, the Clean Water Act has not regulated removal activities and for decades the Corps, EPA and other agencies followed the law.

In 1993, however, the Corps came out with the Tulloch Rule, regulating certain land removal activities in wetlands, even if those activities only resulted in small amounts of dirt and materials falling off a shovel or backhoe and ending up back in the wetland. According to the Corps, the dirt that fell off a shovel and back into a wetland during removal activities was considered ``incidental fallback'' -- an addition to the wetland -- and the removal activity could be regulated as if it were a discharge activity that added materials to a wetland.

As a result of this expansive interpretation of ``discharge,'' more of the activities builders, land developers and other land owners undertake would require a permit under the CWA.

In 1993, NAHB, the National Mining Association, the American Road and Transportation Builders Association, the National Aggregates Association, and the American Forest and Paper Association sued the Corps of Engineers over the rule. The groups contended that the Tulloch rule violated the Congressional intent of the Clean Water Act and unlawfully exceeded the agencies' authority. The chief issue was whether the ``incidental fallback'' that accompanies land clearing and excavation activities was a ``discharge of dredged material.''

In 1997 the District Court of the District of Columbia ruled that Congress did not intend to cover incidental fallback under S404 of the CWA. In its decision, the court noted that the 404 Program refers to discharge activities that add materials to wetlands, not activities that remove soils from wetlands. That decision has been affirmed two additional times, most recently in a 1998 unanimous decision by the U.S. Court of Appeals for the District of Columbia. In late December of 1998, the Corps admitted defeat by not seeking a Supreme Court review of the lower court decisions on the Tulloch Rule.

In August of 2000, through a public comment period, the EPA and the Corps sought ``clarification'' of the types of activities that are likely to result in a discharge or addition of dredged materials and would therefore require a Section 404 permit. Yesterday's announcement amounts to a final rule for the August, 2000 clarification, and brings Tulloch back to life, for now.

The agencies' new Tulloch rule, announced on January 9, 2001, will require more people to get permits, adding delays and project costs to a federal wetlands program that was supposed to provide efficient regulation as originally outlined by Congress.

``The legal lesson the Supreme Court provided on January 9th on isolated wetlands apply to Tulloch as well: agencies that go beyond what Congress intended under the CWA are destined to create illegal, invalid regulations,'' Mitchell said.

About NAHB: The National Association of Home Builders is a Washington- based trade association representing more than 203,000 member firms and professionals involved in home building, remodeling, multifamily construction, property management, subcontracting, design, housing finance, building product manufacturing and other aspects of residential and light commercial construction. Known as the ``voice of the housing industry,'' NAHB is affiliated with more than 800 state and local home builders associations around the country. NAHB's builder members will construct about 80 percent of the more than 1.5 million new housing units projected for 2000. During a typical year, residential construction accounts for about five cents of every dollar spent in the U.S. economy, making home building one of the largest and most influential industries in the country.

SOURCE: National Association of Home Builders

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