Wetlands

Action Alert -- March 17, 2000

ISSUE:

In 1998, the D.C. Circuit Court reversed the Tulloch rule that deals with protecting wetlands under the Clean Water Act. Advocates for protecting the nation's remaining wetlands are working to get the Administration to issue a rule that at least partially closes this large loophole in the law. Action should focus on rulemaking since a legislative remedy will be a time-consuming process and many more acres of wetlands could be destroyed. There is concern that if a rule is not proposed in the Federal Register soon, there will not be enough time to finalize a rule during the waning days of the Clinton Administration.

ACTION:

Send a letter to Charles Fox asking him to immediately propose a rule that goes as far as possible to close the Tulloch loophole and restore more protection for wetlands.

WRITE:

Charles Fox, Assistant Administrator for Water
U.S. Environmental Protection Agency
401 M Street, SW (A-100)
Washington, D.C. 20460

Remind him that when he issued a Federal Register Notice conforming the existing Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) regulations to reflect the D.C. Circuit ruling, he indicated that a further rulemaking was forthcoming to clarify the scope of regulation.

URGE THE ADMINISTRATION TO PUT OUT A RULE FOR NOTICE AND COMMENT THAT HELPS STEM THE LOSSES FROM WETLAND DITCHING AND DRAINING AND FROM STREAM EXCAVATION AND CHANNELIZATION.

BACKGROUND: Section 404 of the Clean Water Act requires developers who destroy wetlands to get a permit to do so from the Army Corps of Engineers. In the 1980s, some developers began to drain and destroy wetlands without undergoing environmental review by using specialized equipment such as welded buckets and sealed containers. This equipment allowed them to limit the amount of dredged materials re-deposited during ditching, mining and channelization projects. In 1993, the EPA and the U.S. Army Corps of Engineers closed the loophole by issuing the "Tulloch Rule" in response to a lawsuit settlement with the

National and North Carolina Wildlife Federations. The Tulloch Rule required environmental review and Clean Water Act Section 404, permitting for projects that involved the redeposit of dredged material, including most wetland drainage, mining and stream channelization.

In June 1998, the D.C. Circuit Court, in National Mining Association v. United States Army Corps of Engineers, affirmed a lower court's ruling striking down the Tulloch Rule. The court ruling re-opened a gaping loophole that lets developers use it to destroy wetlands and streams. This allows some developers to evade the spirit, if not the letter of the law by using equipment to remove material dredged during ditching operations and deposit it off-site.

Since the reversal of the Tulloch Rule, thousands of wetlands have been lost and countless miles of streams destroyed. Wetlands have been ditched and drained without 404 permits and streams have been channelized and excavated throughout the U.S. Unpermitted wetlands losses in Virginia and North Carolina are the most dramatic. Hundreds of acres of forested wetlands in the Chesapeake Bay watershed have been ditched and drained without permits. However, although the Southeast has experienced grave losses, this is a national problem. In Texas, developers are ditching and draining huge tracts of wetlands and converting them into housing developments. Sand and gravel operators are excavating oxbows and adjacent wetlands without permits. In Ohio, upper reaches of streams are being excavated and in some instances channelized without 404 permits. According to the EPA, between June 19, 1998 (the date of the court decision) and March 1999, developers have used the loophole to destroy more than 30,000 acres of wetlands nationwide.

GENERAL ASSEMBLY GUIDANCE:

The 1990 General Assembly on "Restoring Creation for Ecology and Justice" recommends protecting wetlands and, concerning economic development, to prefer the most environmentally sustainable option over development that maximizes short-term profits.