A number of changes have been made to the U.S. Army Corps of Engineers (USACE) jurisdiction and wetland regulations in the past two years. There have been recent court interpretations of these regulations that may affect permit timing project planning.

The Tulloch Rule. In 1993, the USACE issued the Tulloch Rule defining "discharge of dredged material" as:

Any addition of dredged material into, including any redeposit within the waters of the United States. The term includes, but is not limited to the following: ...any addition, including any redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation.

The USACE was interpreting this to include "incidental fallback," which is material that could fall into the water during excavation activity. A court decision in 1997, concluded that the USACE exceeded their authority by regulating "incidental fallback," which is not subject to the CWA as an "addition" of pollutants, and declared the rule invalid. This decision was upheld in 1998 by the US Court of Appeals for the District of Columbia.

Subsequently, the USACE reissued the rule excluding the term "any" redeposit and excluding "incidental fallback" from the definition of "discharge of dredged material." Redeposits are still subject to Section 404 permitting, unless the deposit results from incidental fallback. Deciding whether a redeposit is jurisdictional will require a case-by-case evaluation. In January 2001, the Clinton Administration finalized a rule requiring that prior to conducting a construction project in wetlands or streams, one must either obtain

a permit from the USACE, or show that the project will not result in a fill or discharge of dredged material, as regulated by the Clean Water Act. In April 2001, President Bush upheld the rule. For more information go to www.epa.gov/owow/wetlands/tulloch.html

• SWANCC Rule. In January 2001, the Supreme Court ruled that the USACE does not have jurisdiction over isolated non-navigable, intrastate waters if they are defined as a jurisdictional solely on the basis of habitat for migratory birds. In the past, an isolated, non-adjacent wetland was jurisdictional if it fell under the authority of the Commerce Clause through the Migratory Bird Rule. The ruling resulted from a recent 4^th District Court decision involving CWA jurisdiction over an abandoned sand and gravel pit in northern Illinois which provided habitat for migratory birds (Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers). For more information go to:

www.epa.gov/owow/wetlands/wilson.html

• In-Lieu-Fee Mitigation Guidance: Mitigation banks are a form of compensatory mitigation under which applicants can purchase credits in other wetland areas to offset loss of wetland or waters acreage for their project. Mitigation banking can be used if on-site wetland replacement or creation is prohibited, and no suitable adjacent off-site mitigation site is available. An alternatives analysis of options must be considered. "In-lieu-fee" mitigation is a form of compensatory mitigation in which the permittee provides funds to a in-lieu-fee sponsor (such as a natural resource management entity) instead of completing project-specific mitigation or purchasing credit from a wetland mitigation bank. Under certain circumstances, this mitigation option can be used. At this time, Colorado mitigation banking credits cost approximately $85,000 per acre. For more information, go to:

www.epa.gov/owow/wwetlands/guidance/

index.html