Siding With Builders, District Court Rejects Wetlands Rule
In a major victory for builders battling against expensive, unnecessary regulation, the U.S. District Court for the District of Columbia has soundly rejected the so-called Tulloch II rule. Now, NAHB wants officials to stop enforcing it.
In National Association of Home Builders v. U.S. Army Corps of Engineers, the court decided on Jan. 30 that home builders and developers do not need a federal Clean Water Act permit to operate construction equipment in wetlands unless they are actually filling them in. Simply moving soil, clearing brush or extra vegetation — or even turning on the backhoe — should not require a permit, builders argued, and the court agreed.
“It’s very gratifying to see that our justice system is bringing to light what we have argued for years: No one is served by this rule, and home buyers end up paying the price in increased construction costs,” said 2006 NAHB President David Pressly.
“Our nation’s wetlands are an essential part of the ecosystem, but these expensive regulations do nothing to preserve their function. They only serve to make housing even less affordable,” he added.
The Corps’ Tulloch II rule was the answer to legal battles that resulted from the rejection of the first Tulloch rule, which was named after a North Carolina developer who was sued in a 1993 case filed by an environmental group. That complaint sought to have the Corps regulate “incidental fallback,” or dirt that falls from the blades or buckets of construction equipment, contending that the dirt represents an addition to the wetlands.
In 1998, NAHB and other trade groups won a case before the D.C. Circuit Court of Appeals, which ruled that the Corps and the Environmental Protection Agency had no authority to require permits for incidental soil fallback. At that time, the D.C. Circuit remanded the matter back to the agencies, directing them to come up with a regulation that would lawfully fit within the bounds of the Clean Water Act. Tulloch II was the agency's attempt — but the court ruled last month that this latest rule is illegal under the act.
The court made two significant points in its recent decision:
- First, a “discharge” of dirt should be regulated not by the quantity that is being disturbed, but by where it is put, and the time for which it is held before it is placed in the new location. Regulators can only step in if the dirt is being moved to another location on the property, which presumably might affect the function of the wetland and trigger Clean Water Act interest.
- Second, the court found the Tulloch II rule defective because it improperly shifted the burden of proof from the agency to the landowner. The text of Tulloch II "regards the use of mechanized earth-moving equipment as resulting in a discharge of dredged materials unless project-specific evidence shows otherwise. That statement, followed by the coy explanation that it 'is not intended to shift any burden,' ... essentially reflects a degree of official recalcitrance that is unworthy of the Corps," said Judge James Robertson in his decision.
“Home builders — in fact, all citizens — should feel vindicated after this 14-year battle,” Pressly said after the decision. “We look forward to working with the Corps and other agencies to craft sensible regulations that allow us to provide needed housing while we continue to protect the environment.”
In the wake of the court decision, the Corps issued interim guidance on the Tulloch decision on Feb. 6 but stopped short of telling regional district offices to stop enforcing it. On Feb. 13, attorneys for NAHB formally requested that the Corps "immediately correct its record to make clear that Tulloch II has been declared illegal and to advise the districts that they may no longer enforce or apply the rule."
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.