In a Feb. 3 court decision, a national road builders’ group won the right to challenge the U.S. Army Corps of Engineers’ attempt to regulate “incidental fallback” into waterways during construction operations.
At issue is the Tulloch rule, the name given to the 1993 decision by the Corps of Engineers and the U.S. EPA to extend the legal definition of “discharge of dredged material” to include the redeposit of material caused by excavation activities. According to ARTBA, the challenged regulations affect activities including ditch digging and channelization in addition to excavation.
The ruling by the U.S. Court of Appeals for the District of Columbia Circuit said the current rule places developers in the position of applying for a permit which may or may not be legal or facing civil or criminal penalties for failing to do so.
On March 25, 2005, ARTBA filed a brief with the appeals court arguing the Clean Water Act was never meant to regulate activities that only result in an “incidental fallback” of materials into U.S. waterways and highlighting negative impacts the group says the Corps proposal has on the transportation construction industry.
ARTBA and its litigation partners first challenged the Tulloch rule in 1997, winning an initial court decision that reduced the jurisdiction of the Corps to regulate construction activities in wetlands. The Clinton administration unsuccessfully appealed the ruling five times. In 2001, the Corps redrafted the rule, but the practical effect remained the same, according to ARTBA.
Oral arguments in the current case have not been scheduled.