U.S. Army Corps Of Engineers Enlists EPA in Decade-long Battle by Lew Sichelman
WASHINGTON -- The U.S. Army Corps of Engineers can't seem to take no for an answer. Three times a federal court has told the Corps that a political compromise crafted between the Corps and environmental groups in the early 1990s to regulate the nation's wetlands under the Clean Water Act is illegal. But that hasn't stopped the agency. Now, in conjunction with the Environmental Protection Agency, the Corps has decided to "clarify" the so-called Tulloch Rule. And the National Association of Home Builders is once again threatening legal action. "In coming up with this clarification,' the Corps is simply putting a new label on an old, illegal regulation," said NAHB President Robert Mitchell. "The agencies must have forgotten that Sec. 404 of the Clean Water Act regulates activities that add material into wetlands, not removal activities such as excavation." Tulloch came about as a result of questions regarding the kinds of activities that can and cannot be regulated under the law, which covers the "discharge" of dredged and fill materials into wetlands. Since it was enacted, the Clean Water Act has not covered removal activities, and for decades the government has followed the letter of the law. But in 1993, the Corps came out with Tulloch under the guise that dirt falling back into a wetland off a shovel or backhoe was an addition to the wetland. Therefore, the agency said, the act of removing dirt could be regulated as if it were a discharge activity. Predictably, the 200,000-member NAHB, along with several other groups, sued, contending the rule violated Congressional intent and unlawfully exceeded the agency's authority. In 1997, a District court held that Congress did not intend for such incidental fallback to be covered under Sec. 404, and that decision was reaffirmed twice, most recently in 1998 in a unanimous U.S. Court of Appeals ruling. The Corps did not take the case to the Supreme Court, leading the NAHB and its fellow litigants to claim victory. But earlier this month, the Corps and the EPA issued a "clarification" of the types of activities that are likely to result in a discharge or addition of dredged materials and would therefore require a Sec. 404 permit. The proposed rule would "establish a rebuttable presumption that mechanized landclearing, ditching, channelization, in-stream mining, and other mechanical excavation activities produce more than incidental fallback and result in a regulable discharge of dredged material subject to environmental review." According to the home builders, the proposal would require more land owners to obtain permits, adding delays and increasing costs. It could also lead to more legal challenges by environmental groups. "Coming up with a new definition for an illegal regulations does not change the illegality of that regulation," said Mitchell, a Washington area builder. "If the Administration wants the law to be changed, it must work with Congress to amend it, not seek mechanisms to subvert it." | 
