After two years of wetland losses totaling 20,000 acres nationwide, the Clinton administration has proposed new regulations it says will close a loophole created by a 1998 court decision.
The regulations seek to control so-called “Tulloch ditching” in which developers are exempted from regulation if they use certain techniques to ditch and drain wetlands.
The court ruling led to more than 2,000 acres of wetland draining in Virginia over the past two years before the state’s General Assembly this year passed a law creating a regulatory program to protect wetlands. Although the full program does not take effect for more than a year, the prohibition on Tulloch ditching went into effect this summer.
The proposed federal regulations, announced Aug. 10 by the U.S. Army Corps of Engineers and the EPA, does not totally close the loophole, but would force developers to offer more proof that their actions will not harm wetlands, and will require permits in instances where they are not now required.
“Today’s proposal will allow us to go as far as we can through administrative reforms to close this loophole and protect wetlands,” said EPA Administrator Carol Browner. “We also call on Congress to strengthen the Clean Water Act to fully protect and restore America’s wetlands.”
The act regulates the discharge of fill material into wetlands, but not necessarily draining. In 1993, the Corps created what was called the “Tulloch rule” which sought to prevent ditching and draining by saying it couldn’t be done without inadvertently causing some material falling into the wetland, which it defined as a “fill.” The rule was thrown out by a federal appeals court in 1998. 4he decision didn’t affect Maryland and Pennsylvania and states that had their own programs to protect wetlands, but it led to a rash of wetland draining in Virginia and states relying on federal wetland programs.
The new rules are an attempt to craft regulations that would not be contradictory to the 1998 court decision. Still, Robert Mitchell, president of the National Association of Home Builders, one of the groups that had challenged the Tulloch rule, criticized the new rules. “If the agencies believe that the Clean Water Act inadequately protects wetlands, they should turn to Congress, not illegally tinker with the law,” he said.
But environmental groups praised the action. “While ultimately Congress needs to plug this loophole for good in an amendment to the Clean Water Act, the new rule will help provide better protection in the short term,” said Julie Sibbing of the National Wildlife Federation.
The proposed new rules will be open for public comment through mid-October.