The Corps of Engineers and Environmental Protection Agency (“EPA”) have issued a joint rule at 73 Federal Register 79641 (December 30, 2008). This rule amends their wetland rules on what constitutes a regulated discharge of dredged or fill material at 33 C.F.R. 323 and 40 C.F.R. 232. The Corps and EPA have joint jurisdiction over most wetland regulation.

Section 404 of the Clean Water Act regulates the discharge of dredged or fill material into waters of the United States. These terms, “fill,” “dredged,” “discharge,” and the nebulous terms “navigable waters” or “waters of the United States,” sound simple but are certainly complex. This rule affects the jurisdictional trigger of work or activity in navigable waters, being in this case the discharge of dredged material.

Historically, since the 1990s, the Corps and EPA took an expansionistic view over what was considered the discharge of dredged material. At face value, it would seem that term only involves the addition of material to a wetland area, but the agencies had interpreted it to include various forms of mechanized land-clearing, which involved the removal of material. The agencies also regulated any incidental spills of material during excavation in waters of the United States, except the somewhat narrow “incidental fallback” which was only material that fell in the same place from where it was taken. By and large, the historic rules allowed the Corps and EPA to regulate most land-clearing activities in wetlands. This was referred to as the Tulloch rule.

The new amendments to the regulations delete the old Tulloch case rule which very narrowly defined “incidental fallback” as excluded from discharge of dredged material. The new rule also eliminates the agencies’ position that they regard the use of mechanized earth-moving equipment as resulting in a regulated discharge. Therefore, they should be less onerous to developers.

The net result of the amendments is not that land-clearing is exempt, but that land-clearing will only be regulated as the discharge of dredged material on a case-by-case basis. No more can the Corps and EPA simply automatically or categorically cover all earth-moving and land-clearing as regulated under 404 or can they regulate any and all incidental spills of material removed from wetlands during said land-clearing.

For instance, excavating ditches in wetlands and side casting the material would still be the discharge of dredged material. However, land-clearing involving minimal movement of earth in a wetlands may no longer be. Developers are cautioned to seek the advice of the Corps of Engineers before they begin land-clearing a wetland area to make sure they obtain a non-jurisdictional determination that the activity is exempt.

It is uncertain how the Obama Administration will react to this new rule, other than that they plan to review all of the Bush Administration’s recent environmental policies and regulations. Regulations are somewhat more difficult to reverse than policies, requiring new reasoning and notice and comment rule-making, but not impossible.