[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Rules and Regulations]
[Pages 25120-25123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11680]
[[Page 25119]]
_______________________________________________________________________
Part II
Department of Defense
_______________________________________________________________________
Department of the Army, Corps of Engineers
_______________________________________________________________________
Environmental Protection Agency
_______________________________________________________________________
33 CFR Part 323
40 CFR Part 232
Revisions to the Clean Water Act Regulatory Definition of ``Discharge
of Dredged Material''; Final Rule
Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 / Rules and
Regulations
[[Page 25120]]
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 323
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 232
[FRL-6338-9]
Revisions to the Clean Water Act Regulatory Definition of
``Discharge of Dredged Material''
AGENCIES: U.S. Army Corps of Engineers, Department of the Army, DOD;
and Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental
Protection Agency (EPA) are promulgating a final rule amending a Clean
Water Act (CWA) section 404 regulation that defines the term
``discharge of dredged material.'' This action conforms that definition
to the results of a lawsuit holding that by asserting jurisdiction over
any redeposit of dredged material, including incidental fallback, the
Agencies had exceeded our statutory authority under the CWA. Today's
action is intended to comply with the injunction issued by the district
court in that case. Today's rule responds to the court decision by
deleting language from the regulation that was held to exceed our CWA
statutory authority and by adding clarifying language.
EFFECTIVE DATE: May 10, 1999.
FOR FURTHER INFORMATION CONTACT: For information on the final rule,
contact Mr. John Lishman of EPA at (202) 260-9180 or Mr. Mike Smith or
Mr. Sam Collinson of the Corps at (202) 761-0199. For questions on
project-specific activities, contact your local Corps District office.
Addresses and telephone numbers for Corps District offices can be
obtained from the Corps Regulatory Homepage at http://
www.usace.army.mil/inet/functions/cw/cecwo/reg/district.htm. If you do
not have access to the Internet, telephone numbers for Corps District
offices can be obtained by calling the National Wetlands hotline at
800-832-7828.
SUPPLEMENTARY INFORMATION:
I. Background
A. Potentially Affected Entities
Persons or entities engaged in discharging dredged material to
waters of the US could be affected by today's rule. Today's rule
addresses the regulatory definition of ``discharge of dredged
material,'' a term which is important in determining what types of
activities do or do not require a CWA section 404 permit. As described
further below, today's action does not increase regulatory burdens, but
rather conforms the language in our section 404 regulations to the
outcome of a lawsuit challenging the regulatory definition. Examples of
entities that might potentially be affected include:
------------------------------------------------------------------------
Examples of potentially
Category affected entities
------------------------------------------------------------------------
State/Tribal governments or State/tribal agencies or
instrumentalities. instrumentalities that
discharge dredged material to
waters of the U.S.
Local governments or instrumentalities. Local governments or
instrumentalities that
discharge dredged material to
waters of the U.S.
Industrial, commercial, or agricultural Industrial, commercial, or
entities. agricultural entities that
discharge dredged material to
waters of the U.S.
Land developers and landowners......... Land developers and landowners
that discharge dredged
material to waters of the U.S.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that are likely to carry out
activities affected by this action. This table lists the types of
entities that the Agencies are now aware of that carry out activities
potentially affected by this action. Other types of entities not listed
in the table could also perform activities that are affected. To
determine whether your organization or its activities are affected by
this action, you should carefully examine the preamble discussion in
section II of today's final rule. If you still have questions regarding
the applicability of this action to a particular activity, consult the
Corps District offices as listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. Tulloch Rule and Related Litigation
Section 404 of the Act authorizes the Corps (or a State with an
authorized permitting program) to issue permits for the discharge of
dredged or fill material into waters of the United States. On August
25, 1993 (58 FR 45008), we issued a regulation (the ``Tulloch rule'')
defining the term ``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.
33 CFR 323.2(d)(1); 40 CFR 232.2.
The American Mining Congress and several other trade associations
challenged this regulation. On January 23, 1997, the U.S. District
Court for the District of Columbia ruled that the regulation exceeded
our authority under the CWA because it impermissibly regulated
``incidental fallback'' of dredged material.1 The court
concluded that incidental fallback is not subject to the CWA as an
``addition'' of pollutants, and declared the rule ``invalid and set
aside.'' The Court also enjoined us from applying or enforcing the
regulation. The government appealed the court's ruling and, on June 19,
1998, the U.S. Court of Appeals for the District of Columbia Circuit
affirmed the district court's decision.2 American Mining
Congress v. United States Army Corps of Engineers, 951 F.Supp. 267
(D.D.C. 1997); aff'd sub nom, National Mining Association v. United
States Army Corps of Engineers, 145 F.3d 1339 (D.C. Cir. 1998)
(``NMA'').
---------------------------------------------------------------------------
\1\ Incidental fallback results in the return of dredged
material virtually to the spot from which it came. See, NMA, 145
F.3d at 1403.
\2\ The NMA decision did not address the definition of
``discharge of fill material'' (33 CFR 323.2(f); 40 CFR 232.2), and
thus did not affect the regulation of discharges of fill material,
nor are the Agencies altering that definition in today's rulemaking.
---------------------------------------------------------------------------
II. Today's Rule
Today's rule modifies our definition of ``discharge of dredged
material'' in order to respond to the Court of Appeals' holding in NMA,
and is intended to comply with the district court's injunction. The
D.C. Circuit
[[Page 25121]]
found that the Tulloch rule changed the prior regulatory regime by
regulating incidental fallback for the first time. 145 F.3d at 1402.
The court found that the rule accomplished this result by defining
``discharge'' to include ``any redeposit'' of dredged material. See,
145 F.3d at 1403 (``It is undisputed that by requiring a permit for
`any redeposit' the Tulloch rule covers incidental fallback'')
(emphasis in original) (citation omitted). The court concluded that
incidental fallback is not an ``addition'' of a pollutant, and that,
therefore, our assertion of authority to regulate any redeposit of
dredged material exceeded our statutory authority. 145 F.3d at 1405
(``We hold only that by asserting jurisdiction over `any redeposit,'
including incidental fallback, the Tulloch rule outruns the Corps's
statutory authority'') (emphasis in original). To conform our
regulation to this holding we have made two modifications to the rule.
First, today's rule deletes use of the word ``any'' as a modifier of
the term ``redeposit.'' Second, today's rule expressly excludes
``incidental fallback'' from the definition of ``discharge of dredged
material.''
Today's rule does not alter the well-settled doctrine, recognized
in NMA, that some redeposits of dredged material in waters of the
United States constitute a discharge of dredged material and therefore
require a section 404 permit. See 145 F.3d at 1405 (``But we do not
hold that the Corps may not legally regulate some forms of redeposit
under its section 404 permitting authority.''); 145 F.3d at 1405, n.6
(recognizing that ``a redeposit could be an addition to [a] new
location and thus a discharge'').
Deciding when a particular redeposit is subject to CWA jurisdiction
will require a case-by-case evaluation, based on the particular facts
of each case. Judicial decisions have established, and the D.C. Circuit
recognized in NMA, that redeposits associated with the following are
subject to CWA jurisdiction: mechanized landclearing, redeposits at
various distances from the point of removal (e.g., sidecasting), and
removal of dirt and gravel from a streambed and its subsequent
redeposit in the waterway after segregation of minerals. 145 F.3d at
1407. See also, Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897
(5th Cir. 1983) (mechanized landclearing requires section 404 permit);
United States v. M.C.C. of Florida, 772 F.2d 1501 (11th Cir. 1985),
vacated on other grounds, 481 U.S. 1034 (1987), readopted in relevant
part on remand, 848 F.2d 1133 (11th Cir. 1988) (redeposit of river
bottom sediments on adjacent sea grass beds is an ``addition'');
Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) (resuspension of
materials by placer miners as part of gold extraction operations is an
``addition of a pollutant'' under the CWA subject to EPA's regulatory
authority); NMA, 951 F.Supp. at 270 (``Sidecasting, which involves
placing removed soil alongside a ditch, and sloppy disposal practices
involving significant discharges into waters, have always been subject
to section 404'').
Determining whether a particular redeposit constitutes incidental
fallback and, under the court's decision is not subject to section 404,
will also require evaluation on a case-by-case basis. The NMA decision
indicates incidental fallback ``* * * returns dredged material
virtually to the spot from which it came.'' 145 F.3d at 1403. It also
describes incidental fallback as occurring ``when redeposit takes place
in substantially the same spot as the initial removal.'' 145 F.3d at
1401. Similarly, the district court described incidental fallback as
``the incidental soil movement from excavation, such as the soil that
is disturbed when dirt is shoveled, or the back-spill that comes off a
bucket and falls back into the same place from which it was removed.''
951 F.Supp. at 270.
The court in NMA recognized that the CWA ``sets out no bright line
between incidental fallback on the one hand and regulable redeposits on
the other'' and that ``a reasoned attempt to draw such a line would
merit considerable deference.'' 145 F.3d at 1405. We have not attempted
to draw such a line here. Nor have we evaluated (as we did when
promulgating the Tulloch rule) the complex legal, factual and policy
questions associated with interpreting the reach of the CWA. Rather, we
have promulgated today's rule to comply with the injunction issued in
NMA, and as described below, will expeditiously undertake notice and
comment rulemaking that will make a reasoned attempt to more clearly
delineate the scope of CWA jurisdiction over redeposits of dredged
material in waters of the U.S. In the interim, we will determine on a
case-by-case basis whether a particular redeposit of dredged material
in waters of the United States requires a section 404 permit,
consistent with our CWA authorities and governing case law. Entities
that are engaging, or intend to engage, in activities in waters of the
U.S. that may result in a ``discharge of dredged material'' as that
term is defined in today's final rule are hereby given notice that the
agencies intend to regulate those activities that we find, based on the
particular circumstances, would result in an addition of pollutants to
waters of the U.S.
III. Future Notice and Comment Rulemaking
As explained in the preamble language accompanying the issuance of
theTulloch rule (57 FR 26894 (June 16, 1992); 58 FR 45008 (August 25,
1993)), some small volume discharges associated with mechanized
landclearing, ditching, channelization, or other excavation activities
were not consistently subject to environmental review under the pre-
Tulloch regulations even though waters of the U.S., including wetlands,
were destroyed or degraded. By using specialized dredging and disposal
techniques some developers sought to use a loophole in those
regulations to convert wetlands without the need to obtain a CWA
section 404 permit. The section 404 environmental review process is not
aimed at preventing development, but instead is designed to avoid
unacceptable adverse environmental impacts, and to the extent adverse
impacts cannot be avoided, assure they are appropriately minimized or
mitigated.
The Agencies are particularly concerned that, without further
action to clarify the definition of ``discharge of dredged material,''
large-scale destruction of wetlands could occur, resulting in increased
flooding or runoff and harm to neighboring property, pollution of
streams and rivers, and loss of valuable habitat. Moreover, available
information indicates that such losses are already occurring.
Accordingly, the Agencies will expeditiously undertake additional
notice and comment rulemaking in furtherance of the CWA's objective to
``restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' Additionally, the NMA court recognized that
the CWA ``sets out no bright line between incidental fallback on the
one hand and regulable redeposits on the other'' and that ``a reasoned
attempt to draw such a line would merit considerable deference.'' (145
F.3d at 1405). Further rulemaking thus is appropriate not only to
ensure that the Nation's wetlands and other waters of the U.S. will
continue to receive the protection required by section 404 of the CWA,
but also to enhance clarity, certainty, and consistency in determining
what activities are subject to section 404 in light of the NMA
decision.
[[Page 25122]]
IV. Related Statutes and Executive Orders
A. Findings Under 5 U.S.C. 553
Under the Administrative Procedure Act (APA), 5 U.S.C. 553,
agencies are required to publish a notice of proposed rulemaking and
provide an opportunity for the public to comment on any substantive
rulemaking action. Notice and comment is not required, however,
when the agency for good cause finds (and incorporates the finding
and a brief statement of reasons therefore in the rules issued) that
notice and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest.
5 U.S.C. 553(b)(3)(B).
Today's rule merely conforms the language in our section 404
regulations to the current status of those regulations after the NMA
case. The district court judgment, as affirmed by the D.C. Circuit,
invalidated application of our regulation to incidental fallback and
enjoined us from applying or enforcing the rule. By expressly excluding
incidental fallback from the definition of ``discharge of dredged
material,'' today's revisions conform the regulations to reflect the
legal status quo in light of the NMA decision. Therefore, we find that
solicitation of public comment is unnecessary.
Under 5 U.S.C. 553(d)(1) and (3), rules must be published at least
30 days prior to their effective date, except where the rule ``grants
or recognizes an exemption or relieves a restriction,'' or where
justified by the agency for ``good cause.'' Today's rule, in accordance
with the NMA decision, removes the requirement for a section 404 permit
for incidental fallback in waters of the U.S. Accordingly, today's rule
is effective immediately.
B. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record-keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record-keeping requirements affecting ten or
more non-Federal respondents be approved by the Office of Management
and Budget (OMB). The current OMB approval number for information
requirements related to the CWA section 404 program is 0710-0003
(expires June 30, 2000). Today's rule merely conforms the definition of
``discharge of dredged material'' to reflect the ruling in the NMA
case. It does not establish or modify any information reporting, or
record-keeping requirements, and therefore is not subject to the
requirements of the Paperwork Reduction Act.
C. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
Today's rule does not involve technical standards. Therefore, EPA did
not consider the use of any voluntary consensus standards.
D. Other Statutes and Executive Orders
Today's rule does not establish any new requirements, mandates or
procedures. As explained above, today's rule merely conforms the
regulations' definition of ``discharge of dredged material'' to reflect
the judicial decision in the NMA case. Because today's rule is a
``housekeeping'' measure undertaken to conform the regulatory language
to that judicial determination, it does not result in any additional or
new regulatory requirements. In fact, the judicial determination which
it reflects has the practical effect of removing incidental fallback
from coverage under the regulations. Accordingly, it has been
determined that this rule is not a ``significant regulatory action''
under Executive Order 12866, and is therefore not subject to review by
the Office of Management and Budget. In addition, this action does not
impose any enforceable duty, contain any unfunded mandate, or impose
any significant or unique impact on small governments as described in
the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule
also does not require prior consultation with State, local, and tribal
government officials as specified by Executive Order 12875 (58 FR
58093, October 28, 1993) or Executive Order 13084 (63 FR 27655 (May 10,
1998), or involve special consideration of environmental justice
related issues as required by Executive Order 12898 (59 FR 7629,
February 16, 1994). Because this action is not subject to notice-and-
comment requirements under the APA or any other statute, and because it
does not impose any requirements on small entities, it is not subject
to the regulatory flexibility provisions of the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). This rule is not subject to E.O. 13045 (62
FR 19885, April 23, 1997) because it is not economically significant as
defined under E.O. 12866. Further, EPA interprets E.O. 13045 as
applying only to those regulatory actions that are based on health or
safety risks such that the analysis required under section 5-501 of the
Order has the potential to influence the regulation. This rule is not
subject to E.O. 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 808 allows the issuing agency to make a good
cause finding that notice and public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement. 5 U.S.C. 808(2). As stated
previously, we have made such a good cause finding, including the
reasons therefore, and established an effective date of May 10, 1999.
We will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
List of Subjects
33 CFR Part 323
Navigation, Water Pollution Control, Waterways
40 CFR Part 232
Environmental protection, Wetlands, Water Pollution Control.
[[Page 25123]]
Dated: April 27, 1999.
Carol D. Browner,
Administrator, Environmental Protection Agency.
Dated: April 30, 1999.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.
In consideration of the foregoing, 33 CFR Part 323 and 40 CFR Part
232 are amended as set forth below:
33 CFR CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
PART 323--[AMENDED]
1. The authority citation for Part 323 continues to read as
follows:
Authority: 33 U.S.C. 1344.
2. Amend section 323.2(d) as follows:
a. In the first sentence of paragraph (d)(1), remove the words
``any redeposit of dredged material'' and add, in their place, the
words ``redeposit of dredged material other than incidental fallback''.
b. In paragraph (d)(1)(iii), remove the words ``any redeposit,''
and add, in their place, the words ``redeposit other than incidental
fallback,''.
c. In paragraph (d)(2), add at the end thereof a new paragraph
(d)(2)(iii) to read as follows:
Sec. 232.2 Definitions.
* * * * *
(d) * * *
(2) * * *
(iii) Incidental fallback.
* * * * *
40 CFR CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 232--[AMENDED]
3. The authority citation for Part 232 continues to read as
follows:
Authority: 33 U.S.C. 1344.
4. In Sec. 232.2 the definition of ``discharge of dredged
material'' is amended as follows:
a. In the first sentence of paragraph (1), remove the words ``any
redeposit of dredged material'' and add, in their place, the words
``redeposit of dredged material other than incidental fallback''.
b. In paragraph (1)(iii), remove the words ``any redeposit,'' and
add, in their place, the words ``redeposit other than incidental
fallback,''.
c. In paragraph (2), add at the end thereof a new paragraph
(2)(iii) to read as follows:
Sec. 232.2 Definitions.
* * * * *
Discharge of dredged material * * *
(2) * * *
(iii) Incidental fallback.
* * * * *
[FR Doc. 99-11680 Filed 5-5-99; 3:41 pm]
BILLING CODE 6560-50-P
