I have been going over the decisions of the Supreme Court in regards to the "Tulloch Rule" and also the Corps answer to being overturned. What is the final ruling on whether excavation is allowed in wetlands? Also, I understand incidental fallback, so if a wetland is excavated for a detention pond, and all you have is incidental fallback, do you need a permit from the Corps? Is the "Tulloch Rule II" rule that excavation is on a case-by-case decision of the Corps mean you have to get the Corps involved.

Dear Mr. Rogers,
There is an old saying that goes:"an ounce of prevention is worth a pound of cure". Time is money for most builders and construction projects, particularly after construction loans have been obligated. If the builder were my client who had a genuine project, I would suggest that they get the Corps involved as early as possible (if you know or think this is a potential problem). You need to understand that there is much older policy and litigation that gave the Corps of Engineers regulatory authority over the re-distribution of soil materials in a wetland or waterway (Avoyelles case). The definition of the term "discharge of dredged or fill material" has been debated for almost 30 years. I think the reality is that there are really very few projects where the only regulated activity was the actual "incidental fallback". I am sure many people will be able to offer examples of the "incidental fallback" debacle. However, in my part of the world, a storm water detention basin will probably require some amount of discharge to shape a containment berm, discharge outlet, scour apron, emergency spillway, etc, etc, etc. It is better to spend the time up front to resolve this issue rather than receive a stop work letter after work has started.

However, I think it is worth noting that the Supreme Court did not get involved with the Tulloch Rule. It only went to the Federal Court for the District of Columbia. Prior to the Tulloch Rule, the Corps did not openly regulate excavation as a discharge of dredged or fill material. It was litigation that led to the Tulloch Rule and further litigation that led to the overturning of the Tulloch Rule. That would lead me to think that you can not solve this wetland excavation problem with Section 404 of the Clean Water Act.

You might even have a good discussion topic for the 2005 SWS annual meeting in Charleston. This will give you a good excuse to make the drive up Route 17.

I have encountered a similar situation regarding excavation in central Illinois. The proposed project was to extend a sand and gravel mine operation into a wetland complex along the Illinois River. Upon my inspection the wetland's mean C-value was 3.67, and I had observed a flock of White American Pelican's along the riverbank.

After conversations with the Rock Island district ACOE it was determined that the excavation activity did not require a permit. However, the removal of any shrub or tree stump within the excavated area would be considered incidental fallback, requiring the proposed activity to be permitted. Since this project would require removal of a floodplain forests and a scrub-shrub portion of the wetland complex the project was deemed unfeasible.