The 2001 Tulloch Rule: New and Revised?

By Stephen A. Studer and Amy E. Romig

January 9, 2001, was a significant date for property containing wetlands. On the same day the U.S. Supreme Court issued its ruling in SWANCC, (see PSRB Newsletter, February 2001), the U.S. Environmental Protection Agency ("EPA") promulgated a final rule which revised the regulatory definition of "discharge of dredged fill material." The new rule, which refines a prior rule originally issued in 1993 and is commonly referred to as the "Tulloch Rule," is intended to close a "loophole" in the Clean Water Act ("CWA") created in part by earlier court decisions interpreting the rule. The new rule was originally scheduled to take effect February 16, 2001; however, on the day President George W. Bush was sworn into office, his Chief of Staff issued a Memorandum regarding new and pending regulations. The "Memorandum for the Heads and Acting Heads of Executive Departments and Agencies" required regulations that had been published in the Federal Register, but which had not yet taken effect, to be temporarily postponed for 60 days until the new department or agency head appointed by the President reviewed and approved the regulatory action. Consequently, implementation of the new Tulloch Rule was put on hold. On April 16, 2001, EPA Administrator Christie Whitman announced that the administration was endorsing the rule and making it effective April 17, 2001.

In 1993, the EPA and the U.S. Army Corps of Engineers (Corps) defined "discharge of dredged material" to include "any addition, including any redeposit, of dredged material, including excavated material, into waters of the U.S. which is…