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
