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National Ass'n of Home Builders v. Corps of Eng'rs

ELR Citation: 37 ELR 20028
Nos. No. 01-0274, (D.D.C., 01/30/2007) summary judgment

The court invalidated the "Tulloch II" rule, which governs when the use of mechanized earth-moving equipment that results in the discharge of dredged or fill material requires a Clean Water Act §404 permit. The original Tulloch rule defined the discharge of dredged material as "any addition of dredged material into, including redeposit of dredged material within, the waters of the United States." The court remanded it to the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) because it set no bright line separating incidental fallback from regulable redeposits. EPA and the Corps then issued a new rule, the Tulloch II rule, which defined incidental fallback and exempted it from the permitting requirements. The new definition, however, contemplates only "small" volumes of fallback. Although prior decisions in this litigation have described incidental fallback in terms of volume, none have gone so far as to require that the volume of fallback be small. Rather, the difference between incidental fallback and redeposit is better understood in terms of: (1) the time the material is held before being dropped to earth; and (2) the distance between the place where the material is collected and the place where it is dropped. For that reason, the rule must be rewritten. In addition, the court noted that the agencies should reconsider their statement that they regard the use of mechanized earth-moving equipment as resulting in a discharge of dredged material unless project-specific evidence shows otherwise. The agencies cannot require "project-specific evidence" from projects over which they have no regulatory authority.

[A prior decision in this litigation can be found at 36 ELR 20032.]