Taming Tulloch

After 14 years of protracted legal battles, the U.S. District Court for the District of Columbia has ruled in favor of NSSGA and its co-plaintiffs in the Tulloch rule litigation. This suit is the most recent manifestation of a longstanding legal dispute about what constitutes the discharge of "dredged" or "fill" material into waters of the United States, including wetlands. NSSGA has long argued that excavation activities that do not create fill from re-deposited material or incidental fallback into wetlands or waters of the U.S. should not be regulated. Aggregate producers still must obtain Section 404 permits for actual filling activities. However, the agencies may be forced to decide on a case-by-case basis whether federal approval is still required for small discharges. Between 1986 and 1993, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency defined the discharge of dredged material as any addition of dredged material into waters of the United States, while expressly excluding de minimis incidental soil movement occurring during normal dredging operations. In 1993, however, the Corps issued a new rule that eliminated the de minimis exemption. This rule became known as the Tulloch Rule. NSSGA and other trade groups challenged the Tulloch Rule, claiming that the Clean Water Act regulates only discharge into waters of the United States, not excavation activities that would include incidental fallback or other means of material redeposit. The court concurred with NSSGA in the opinion and called on the agencies, with the Corps in the lead, to rewrite their definition of incidental fallback. Your comment?