The American Road & Transportation Builders Association (ARTBA) joined the National Stone, Sand & Gravel Association and several other organizations in challenging the U.S. Army Corps of Engineers’ latest attempt to regulate “incidental fallback” during construction operations that take place in, or near the “navigable waters of the United States.” The challenged regulations affect activities including ditch digging, channelization and excavation.
ARTBA filed a Mar. 25 brief with the United States Court of Appeals for the District of Columbia Circuit arguing the Clean Water Act (CWA) was never meant to regulate activities which only result in an “incidental fallback” of materials into the waters of the U.S. ARTBA also highlighted the negative impacts of the Corps proposal on the transportation construction industry.
The so-called “Tulloch rule” involves a 1993 decision by the Corps of Engineers and U.S. Environmental Protection Agency (EPA) to extend the legal definition of “discharge of dredged material” in wetlands development decisions to include the re-deposition of material caused by earthmoving equipment incident to land clearing and other excavation activities. The agencies’ intent was to use “incidental fallback” as a basis for requiring federal permits under the CWA.
ARTBA and its litigation partners first challenged the Tulloch rule nearly a decade ago, winning an initial court decision in 1997 that reduced the jurisdiction of the Corps to regulate construction activities in wetland areas. The Clinton Administration unsuccessfully appealed the ruling five separate times.
In 2001, the Corps redrafted the rule, but the practical effects have still been the same, the association says. ARTBA has taken legal action once again to stop the Corps from attempting the same type of regulation the courts previously struck down.
Oral arguments in the case have not yet been scheduled.
