Does this mean that the Corps can no longer regulate dredge only operations in wetlands? I though that the Corps regulated dredging in wetlands under the premises that there is always some fall back off of the shovel or backhoe bucket during dredging. That fall back is considered fill, and therefore that filling in a wetland is regulated. That is how the Corps is able to regulate dredging with a fill discharge permit. Can anyone clarify?

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I thought that the Corps regulated dredging in wetlands under the premises that there is always some fall back off of the shovel or backhoe bucket during dredging. That fall back is considered fill, and therefore that filling in a wetland is regulated. That is how the Corps is able to regulate dredging with a fill discharge permit. Can anyone clarify?

Dear Andrew:

Back in the early 90's we were constructing ditches and had to stop because of the Tulloch rule. The Corps used Tulloch to regulate both land clearing and drainage. After the Tulloch rule came out, land clearing in wetlands required a Corps permit and clearing in uplands usually could not begin until after the wetlands were delineated and the Corps issued a permit.

The Tulloch rule was overturned in the late 90's, so the Corps adopted a new approach to regulate land clearing. The Corps started requiring drawings and documenation on the whole proposed project, not just the wetland impacts that were being permitted. This was done under the so-called "single and complete project" clause of some legal document. Land clearing could not begin until the Corps conducted a full environmental review of the entire project and issued a permit.

When Tulloch II came along a few years ago most developers did not notice because the Corps never really stopped regulating land clearing. Despite Rapanos and the interim guidance, some Corps districts still attempt to regulate both land clearing and drainage under expansive definitions of waters of the United States, tributary system, hydrological connections, significant nexus, storm water run-off, special aquatic sites, sensitive habitat, total maximum daily loads, and other regulatory definitions that have been systematically incorporated into the Corps regulatory process.

When the US Supreme court ruled in Rapanos that "waters of the United States" could no longer be used to regulate land use, it was referring to the Corps practice of regulating land clearing and drainage. Regulation of land clearing is a traditional power that is constitutionally reserved for state and local governments.

This message has been edited. Last edited by: Johnny Stevens,

I wonder if all of this wetland excavation is causing global warming?????? In addition to "Incidental Fallback", we should call it an "Inconvenient Fallback".