Circuit Court Returns Wetlands Case to District Court

It’s back to the courthouse for the “Tulloch II” lawsuit.

The D.C. Circuit Court of Appeals has reversed the U.S. District Court’s decision that an important wetland regulation case is not ready to be decided because builders and developers do not yet face a hardship under NAHB v. U.S. Army Corps of Engineers.

The court of appeals agreed with NAHB that its challenge is “ripe for review” because the association based its claims on purely legal principles that do not require a court to wait until the regulation is actually applied to any individual builder or developer.

Why is this important to NAHB members? NAHB can now return to the lower court and convince the court that when its members are not discarding soil or sediment into federally protected waters, they should not be regulated under the Clean Water Act.

NAHB filed the lawsuit in 2001 challenging the Corps’ so-called “Tulloch II” rule that any machine use in a wetland should be regulated because it can be assumed that using a backhoe or similar equipment is going to result in a discharge — even if the equipment is working to remove soil, sediments or other material. The Tulloch II rule placed an onerous burden on developers, NAHB argued.

In 2004, the District Court found that NAHB’s challenge was not “ripe for review” – that NAHB members do not yet face a hardship, even though they need to apply for permits from the Corps regardless of whether their projects will result in discharges into navigable waters of the United States.

NAHB appealed the case to the Circuit Court, which heard oral arguments in 2005. On Feb. 3,  the court handed down its decision: Because the District Court ruled that the Corps must decide on a case-by-case basis whether any discharge should be regulated, “we conclude that the district court’s reasoning does not support postponing review for lack of ripeness.” In other words, NAHB and its members should not have to wait to get their day in court on this regulatory issue.

“This is a very important step in attempting to bring reason to regulation,” said NAHB President David Pressly.  “We understand and support the Corps’ need to oversee discharges to our navigable waters, but that is not a reason to need a permit when builders are actually removing material and creating only incidental fallback from their backhoes and shovels.”

The Corps and EPA lost the first Tulloch case in 1998 when the D.C. Circuit ruled that under the Clean Water Act, agencies only have authority to require permits when material is added to wetlands, not when it is removed. The two agencies issued a 2001 rule to give them authority over any activity that causes soil movement in wetlands, regardless of whether it results in a “discharge” to navigable water. NAHB fought back with the ‘Tulloch II” suit.

The Circuit Court’s ruling sends the case back to the District Court to be decided on its merits.