Wetlands protection received a boost on April 16, when the Bush administration announced it will stand by the "Tulloch Rule," a last-minute Clinton regulation that had been delayed 60 days for review (HCN, 2/12/01). Now, the use of mechanized earth-moving equipment for excavation in wetlands must receive a permit from the Army Corps of Engineers, unless it causes only "incidental fallback," such as soil that falls out of a backhoe's bucket during digging.

In 1998, federal judges struck down an earlier version of the rule, and since then, according to an EPA estimate, 20,000 acres of wetlands have been destroyed by development that otherwise would have been regulated. "The new rule could probably stop about 80 percent of the abuses that have happened since the '98 court ruling," says Julie Sibbing of the National Wildlife Federation. "What remains to be seen is whether the Bush administration fully defends this against lawsuits."

Already, the National Association of Home Builders and the National Stone, Sand and Gravel Association have each filed a suit against the rule. They claim that Tulloch exceeds the Corps' authority to regulate wetlands under the Clean Water Act, says NAHB staffer Neil Gaffney.

Even if the rule survives the pending legal challenges, its effectiveness "really comes down to what the Corps does on the ground," says Daniel Rosenberg of the Natural Resources Defense Council. He fears that a lack of on-the-ground supervision and varying interpretations of the rule will make it easy for developers to evade the permitting process.