Water Laws

On January 23, 1997, the Federal District Court for the District of Columbia invalidated the Tulloch rule and prohibited the Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) (the agencies) from regulating activities in wetlands through the regulation of "incidental fallback." American Mining Congress v. U.S. Army Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997).

Following the adverse decision in AMC, the Justice Department provided "Tulloch guidance" in a letter mailed to all agency personnel and plaintiff's attorney. While continuing to "respectfully disagree" with the court's decision (and pointing out its intent to appeal), the letter sets out the agencies' policies regarding matters formerly covered under the Tulloch rule. The guidance sets out the agencies' interim policy, to be in effect until such time as the courts issue "any additional ruling on the matters addressed in this guidance."

New or pending permit applications
With regards to new or pending permit applications, the guidance states that the agencies may not require § 404 permits for activities involving incidental fallback only. Corps district offices receiving new § 404 applications for activities involving "incidental fallback only" or which are presently processing such applications, are directed to inform the applicant that, based on the decision in AMC, no permit is presently required. The district offices are directed to inform the applicant, though, that the Corps will process the application as an accommodation to the applicant, if the applicant so requests. Accordingly, district office personnel are directed to offer applicants three choices:

• Withdraw the permit application;
• Ask the Corps to retain the permit pending any further judicial action; or
• Request in writing that the Corps continue processing the application.

In the absence of any express preference, the Corps will retain the permit application throughout the "interim period."

The government's list of activities requiring a case-by-case analysis as a result of AMC

• Mining activities, including sand and gravel mining;
• Aggregate mining;
• Precious metals and gem mining;
• Recreational mining;
• Small in-stream hydraulic dredges;
• Ditching and draining activities, including ditching to lower the water table;
• Ditching to drain wetlands;
• Removal of beaver dams;
• Maintenance dredging activities;
• Excavation for currently used flood control projects or for previously abandoned flood control;
• Irrigation or drainage projects;
• Channelization;
• Reconfiguring or straightening of streams; and
• Other excavation activities.

Enforcement issues regarding permits already issued or denied
According to the guidance, no enforcement activities will be undertaken for violations of § 404 of the CWA where the only grounds for agency jurisdiction is incidental fallback. This includes those applicants previously denied permits for activities involving only incidental fallback who proceed with those activities, as well as those who violate the terms of an existing permit only with respect to incidental fallback. The guidance directs that in all potential enforcement situations where field officers believe that a discharger may argue that its activities only amount to incidental fallback, the respective field office should consult with its respective agency headquarters. Agency field staff are directed to "be available to consult with the public" regarding whether a given activity can be conducted with no discharges other than incidental fallback.

Pending judicial and administrative penalty actions
The decision could have a significant effect on pending administrative and judicial actions. In the case of administrative penalty actions, agencies are directed to notify the administrative law judge (ALJ) or the Presiding Officer of the court of both the AMC opinion and the government's intent to seek a stay pending appeal, providing them with a copy of the "Tulloch guidance" as well. In the case of pending judicial actions, agency staff should consult closely with DOJ and the U.S. Attorneys' offices, as appropriate.

Analysing and understanding the government's interpretation of AMC
The government interprets the AMC decision very narrowly. The guidance letter appears anticipate that only a relatively small number of projects will be impacted because most excavation, land clearing, ditching, and channelization within a wetland involve more soil movement than mere "incidental fallback." For example, the letter appears to assert that mechanized landclearing is per se "different in kind from the 'incidental fallback' defined in the District Court's opinion," and is unaffected by AMC. Guidance at 4.

This appears to be in conflict with the governments' position when arguing the case, which seemed to recognize that such activities were within the purview of the court's decision when they argued that a "total exclusion of land clearing and excavation activities involving incidental discharges would mean that waters of the United States could be destroyed and degraded without . . . any federal environmental review." AMC at 275 (citing Defs.' Motion for Summary Judgment at 24). The guidance seems to recognize the unsure ground on which it stands, though, directing agencies to make decisions regarding such activities only on a case by case basis.

The letter fails to directly discuss violations of § 404 mitigation requirements. Some of these requirements may no longer be unenforceable, but only where such mitigation requirements were based solely on enforcement of the Tulloch Rule. While the list of activities potentially affected by the AMC decision is long (see above), it is really the specifics of an individual project that will determine the whether a permitee's duty to mitigate will be enforceable. Questions of whether a permitee's obligation to mitigate may be partially obviated are even more fact specific. Both require a thorough analysis on the part of the permitee before approaching the agencies in order to effectively argue that AMC changes the permitee's obligations under law.

NOTE: The District Court's ruling striking down the "Tulloch Rule" has been stayed pending appeal, by the U.S. Circuit Court of Appeals for D.C.