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®: CRE Regulatory Action of the Week

EPA and Corps of Engineers Redefine Discharge of Dredged Material
The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency are promulgating a final rule to amend a Clean Water Act section 404 regulation that defines the term “discharge of dredged material.” This action conforms the Corps’ and EPA’s regulations to a court order invalidating the January 17, 2001, amendments to the regulatory definition (referred to as the “Tulloch II” rule). This final rule responds to the court decision by deleting language from the regulation that was invalidated.

EPA is not allowing any public comment on this rule because the rule

"merely conforms the language in our section 404 regulations to the current status of those regulations after the 2007 NAHB order and injunction. The district court judgment invalidated the changes made to the regulatory definition of ‘discharge of dredged material’ promulgated on January 17, 2001. By removing the definition of ‘incidental fallback’ and the language indicating that the agencies ‘regard’ the use of mechanized earth-moving equipment as resulting in a regulable discharge, these revisions conform the regulations to reflect the legal status quo in light of the district court’s January 30, 2007, order in the NAHB case invalidating the Tulloch II rule. Therefore, pursuant to 5 U.S.C. 553(b)(3)(B), we find that solicitation of public comment is unnecessary."
The definition of “discharge of dredged material” has been litigated for over ten years. There may be still more litigation to come.

Until it’s published in the Federal Register, the new rule is available at