Four members of Congress from the Bay watershed are calling on the EPA and the Justice Department to battle a district court judge’s ruling that federal agencies had gone beyond Congress’ intent in regulating wetlands.
U.S. District Court Judge Stanley S. Harris, in late January, threw out the “Tulloch rule” which was adopted in 1993 to close what federal regulators had described as a loophole in the law. Before then, dredging and filling required a permit, but certain activities that drained wetlands were not regulated.
The judge said the Army Corps of Engineers and the EPA went beyond Congress’ intent in the 1972 Clean Water Act by adopting the Tulloch rule which protected wetlands from draining, ditching or land clearing.
“The appropriate remedy for what the agencies now perceive to be an imperfect statute is Congressional action,” the judge wrote.
On Feb. 13, 22 members of Congress wrote to EPA Administrator Carol Browner and Attorney General Janet Reno urging them to appeal the ruling.
“We take issue with the court’s finding that the Corps of Engineers, which is statutorily charged with protecting wetlands, has no authority to prohibit individuals from draining parcels of wetlands,” they wrote to Browner.
“We believe that this ruling will have significant adverse consequences for wetland protection,” they added. “We recognize that most landowners will find the cost of draining wetlands to be greater than the cost of complying with the permit program. However, a corollary to this is the fact that the landowners most likely to resort to draining wetlands are those least likely to be granted a permit — in other words, those with the most far-reaching projects on the most sensitive and valuable wetlands.”
The letters were written by Rep. Wayne Gilchrest, R-Md., and signed by 21 other members of the House, including three from the Bay watershed: Rep. Connie Morella, R-Md., Rep. Michael Castle, R-Del., and Rep. Sherwood Boehlert, R-NY.
Members of Congress expect that the agencies will appeal the decision. In the meantime, they asked Reno to go to court to block implementation of the decision until the appeal takes place.
“An appeal of this decision would likely take months, if not years, to resolve,” they wrote Reno. “In that amount of time, a great many wetlands could be drained and filled, with significant consequences for water quality, flood control and wildlife habitat. Furthermore, implementation of the decision prior to appeal would create regulatory volatility, such that landowners would be unsure as to what regulations were in effect.”
The Tulloch rule was adopted after a North Carolina developer building a golf course and resort dug a network of ditches and canals to drain a 700-acre wetland site so it would no longer be considered “wet.” In response, the Corps and the EPA issued a new rule that, in effect, defined the small amount of material that would fall into a wetland during ditch-digging activity constituted a regulated “discharge” into wetlands.
The suit challenging the rule was brought by the National Association of Home Builders, the National Mining Association and other groups which contended federal agencies only had the authority to regulate “discharge” into wetlands. In their suit, they argued that the small amount of material that would fall into wetlands during ditching or land-clearing activities did not constitute a “discharge of dredged material.”
In his ruling, the judge agreed that the agencies had overstepped the intent of Congress, noting that Congress had several opportunities to expand the scope of wetland regulation in recent years and failed to do so. The judge wrote that “the legislative history suggests that Congress did not intend to leave much discretion to the agencies.”
After the court ruling, the National Association of Home Builders said the Corps has been “served notice” that the organization would “take aggressive action to prevent the Corps from further unlawful expansion of its jurisdiction. NAHB believes that the decision also sends a clear message to all federal agencies that they will not be permitted to expand their authority without specific Congressional direction.”