May 1999 Volume 6, Number 4
Judge's Ruling Pleases Developers, Threatens Wetlands
Not so long ago, a group of wily developers figured out a way to sidestep the permits
required to dredge and drain wetlands.
They argued that the Army Corps of Engineers had no authority to regulate the
excavation of material from wetlands - only the discharge of materials into wetlands and
waterways. So they used a bucket excavator to scoop up wetland habitat, and instead of
dumping it nearby, they loaded it into trucks and hauled it away.
They carved channels that drained wetlands and turned them into uplands suitable for
development. The Corps backed off, ignoring the ruts left by heavy machinery, displaced
soil and other impacts that legally required a permit.
So in 1993 the National Wildlife Federation sued the Corps for failing to regulate
activities that adversely affected wetlands. The result of that lawsuit was the Tulloch
Rule. The rule directed the Corps to regulate excavation because when material is dredged
out of a wetland, some of that material falls back down into the wetland, technically
creating a discharge - and therefore within the Corps' jurisdiction.
But last June, the U.S. Court of Appeals of the District of Columbia struck down the
Tulloch Rule - a victory not just for the plaintiffs - the National Mining Congress - but
also for special interest groups like the National Association of Homebuilders.
The results? In North Carolina, where the original Tulloch case was filed, an estimated
15,000 to 20,000 acres of wetlands has already been destroyed.
And in Norfolk, Va., the city can move ahead on plans to sell Stumpy Lake and
surrounding parkland - home to a nesting pair of bald eagles - to a local developer who
intends to lower the lake and build on the property.
"We're creating critical mass by forming a coalition of groups to stop the city's
move," said Fred Adams, chair of the Chesapeake Bay Group of the Sierra Club.
(For more on Stumpy Lake, see Club Beat)
Robin Mann, the Club's Wetlands Working Group chair, said the principle underlying our
federal wetlands-protection laws is sound: Avoid destroying wetlands, build in uplands.
"But developers still get around it by draining the wetlands, turning them into
uplands," she said.
Wetland activists are demanding that the Corps and Environmental Protection Agency stop
ignoring these practices and clearly define which activities are still subject to
regulation. The long-term solution, however, rests with Congress.
"What we need is for Congress to reinstate the Tulloch Rule," said Kathryn
Hohmann, Environmental Quality director for the Club. "And we need Congress to do it
before we've lost many more thousands of acres of wetlands - not after."
TO TAKE ACTION: Contact your members of Congress and urge them to support a
Tulloch amendment to the Clean Water Act. Write to Corps and EPA headquarters; urge them
to enforce their regulations and immediately issue a new rule covering excavation and
Send letters to: Michael Davis, Deputy Assistant for Civil Works, 108 Army Pentagon,
Washington, DC 20310; Charles Fox, Assistant Administrator for Water, EPA, 401 M St., SW/
4502F, Washington, DC 20460.
FOR MORE INFORMATION: Contact Robin Mann, (610) 527-4598, firstname.lastname@example.org, or Kathryn Hohmann,
(202) 547-1141, email@example.com.
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