Implications of the Revocation of the "Tulloch Rule"

The regulation of wetlands by the federal government has evolved in a peculiar manner. Today, the United States Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) regulate wetlands through the 404 permitting process in the Clean Water Act. A section 404 permit is required for those activities resulting in the discharge of dredge and fill material. In 1986, in an effort to determine which activities were regulated under the Clean Water Act the Corps and the EPA changed the regulations excluding activities that only resulted in â de minimus incidental soil movementâ .

In an attempt to settle a dispute over regulated activities, the federal government adopted the â Tulloch Rule,â effective on August 25, 1993. The Tulloch Rule required a section 404 permit for activities resulting in â incidental fallbackâ . The Tulloch rule was invalidated on June 19, 1998 by the United States Court of Appeals for the District of Columbia.

The invalidation of the Tulloch Rule caused different results across the United States. Those states with strong state wetlands regulation felt little or no impact. Those states that relied on federal regulation of wetlands saw rapid destruction of wetlands. The latter states reacted in different ways to the revocation of the Tulloch Rule. Stakeholder reactions to the revocation of the Tulloch Rule have also been varied.

Regulation of wetlands should come at the state level to offset this loophole in the Clean Water Act. The revocation of the Tulloch Rule has shown the impacts a reactive approach can have on wetlands protection. States should learn from this experience and begin to implement proactive planning approaches in order to protect their natural resources in the future.