May federal agencies regulate removal of material from wetlands under the Clean Water Act? American Mining Congress v. U.S. Army Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997) In 1993, the Corps of Engineers and the EPA adopted the "Tulloch rule," which resulted in a significant change in the definition of the term "discharge of dredged material" for purposes of the Clean Water Act. Up until this time, the agencies had regulated only the addition of materials to waters under § 404 of the Clean Water Act (CWA). Under the Tulloch rule, the agencies began to regulate the removal of materials from wetlands as well. This allowed the Corps and EPA to extend their regulatory powers to include nearly all excavation, land clearing, ditching, and channelization activities within a wetland. The Tulloch rule expanded the definition of "discharge of dredged material" to include "incidental fallback." Incidental fallback is the minor soil movement associated with excavation, such as the soil that is disturbed when shoveled, or the material which spills back into the place from which it was shoveled. Removal of material from a wetland without such fallback is impossible for all practical purposes. The American Mining Congress (AMC) brought suit to challenge the authority of the agencies to enforce the Tulloch rule. They argued that the Congress never intended for incidental fallback to be regulated under the § 404 permitting program. AMC argued that the concept of incidental fallback was being used by the agencies to create regulatory powers that were outside the scope of the § 404 permitting program. The agencies argued that they are empowered to regulate wetlands generally by the CWA. They further argued that the Tulloch rule simply closed a loophole which had previously existed, and that they were simply applying the regulatory authority vested in the them by the Act. The Federal District Court for the District of Columbia invalidated the Tulloch rule, setting it aside after examining the specific language and the legislative history of the CWA. In so doing, the court prohibited the agencies from regulating removal activities in wetlands through the regulation of incidental fallback. The court observed, "the appropriate remedy for what the agencies now perceive as an imperfect statute is congressional action; defendants' authority is limited to adopting regulations that effect the will of Congress as expressed in the statute." The court's ruling prohibits the agencies from using "incidental fallback" as a means to regulate activities in wetlands that are not otherwise subject to § 404. Exactly what those activities are is not yet entirely clear, but on March 11, 1997 the government released the "Tulloch guidance" to help agency personnel interpret the decision.
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