[Federal Register Volume 66, Number 11 (Wednesday, January 17, 2001)]
[Rules and Regulations]
[Pages 4550-4575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1179]
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Part X
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Part 323
Environmental Protection Agency
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40 CFR Part 232
Further Revisions to the Clean Water Act Regulatory Definition of
Discharge of Dredged Material; Final Rule
Federal Register / Vol. 66 , No. 11 / Wednesday, January 17, 2001 /
Rules and Regulations
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 323
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 232
[FRL-6933-2]
Further Revisions to the Clean Water Act Regulatory Definition of
``Discharge of Dredged Material''
AGENCIES: Army Corps of Engineers, Department of the Army, DOD; and
Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental
Protection Agency (EPA) are promulgating a final rule to amend our
Clean Water Act (CWA) section 404 regulations defining the term
``discharge of dredged material.'' Today's final action is being taken
to follow-up on our earlier proposed rulemaking of August 16, 2000, in
which we proposed to amend the regulations to establish a rebuttable
presumption that mechanized landclearing, ditching, channelization, in-
stream mining, or other mechanized excavation activity in waters of the
U.S. result in more than incidental fallback, and thus involve a
regulable discharge of dredged material.
As a result of the comments we received, today's final rule
reflects several modifications from the proposal. In response to
concerns raised by some commenters that the proposal would have shifted
the burden of proof to the regulated community as to what constitutes a
regulable discharge, we have revised the language to make clear that
this is not the case. Additionally, we received numerous comments
requesting that we provide a definition of ``incidental fallback'' in
the regulatory language. In response, today's final rule does contain
such a definition, which is consistent with past preamble discussions
of that issue and is drawn from language contained in the relevant
court decisions describing that term. Today's final rule will both
enhance protection of the Nation's aquatic resources, including
wetlands, and provide increased certainty and predictability for the
regulated community. At the same time, it continues to allow for case-
by-case evaluations as to whether a regulable discharge of dredged
material results from a particular activity, thus retaining necessary
program flexibility to address the various fact-specific situations
that are presented.
EFFECTIVE DATE: February 16, 2001.
FOR FURTHER INFORMATION CONTACT: For information on today's rule,
contact either Mr. Mike Smith, U.S. Army Corps of Engineers, ATTN CECW-
OR, 441 ``G'' Street, NW, Washington, DC 20314-1000, phone: (202) 761-
4598, or Mr. John Lishman, U.S. Environmental Protection Agency, Office
of Wetlands, Oceans and Watersheds (4502F), 1200 Pennsylvania Avenue
N.W., Washington, DC 20460, phone: (202) 260-9180.
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
Persons or entities that discharge material dredged or excavated
from waters of the U.S. could be regulated by today's rule. The CWA
generally prohibits the discharge of pollutants into waters of the U.S.
without a permit issued by EPA or a State approved by EPA under section
402 of the Act, or, in the case of dredged or fill material, by the
Corps or an approved State under section 404 of the Act. Today's rule
addresses the CWA section 404 program's definition of ``discharge of
dredged material,'' which is important for determining whether a
particular discharge is subject to regulation under CWA section 404.
Today's rule sets forth the agencies' expectations as to the types of
activities that are likely to result in a discharge of dredged material
subject to CWA section 404. Examples of entities potentially regulated
include:
------------------------------------------------------------------------
Examples of potentially
Category regulated entities
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State/Tribal governments or State/Tribal agencies or
instrumentalities. instrumentalities that
discharge dredged material
into waters of the U.S.
Local governments or instrumentalities. Local governments or
instrumentalities that
discharge dredged material
into waters of the U.S.
Federal government agencies or Federal government agencies or
instrumentalities. instrumentalities that
discharge dredged material
into waters of the U.S.
Industrial, commercial, or agricultural Industrial, commercial, or
entities. agricultural entities that
discharge dredged material
into waters of the U.S.
Land developers and landowners......... Land developers and landowners
that discharge dredged
material into waters of the
U.S.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that are likely to be regulated by
this action. This table lists the types of entities that we are now
aware of that could potentially be regulated by this action. Other
types of entities not listed in the table could also be regulated. To
determine whether your organization or its activities are regulated by
this action, you should carefully examine EPA's applicability criteria
in section 230.2 of Title 40 of the Code of Federal Regulations, the
Corps regulations at part 323 of Title 33 of the Code of Federal
Regulations, and the discussion in section II of today's preamble. If
you have questions regarding the applicability of this action to a
particular entity, consult one of the persons listed in the preceding
FOR FURTHER INFORMATION CONTACT section.
II. Background
A. Plain Language
In compliance with President Clinton's June 1, 1998, Executive
Memorandum on Plain Language in government writing, this preamble is
written using plain language. Thus, the use of ``we'' in this action
refers to EPA and the U.S. Army Corps of Engineers (Corps), and the use
of ``you'' refers to the reader.
B. Overview of Previous Rulemaking Activities and Related Litigation
Section 404 of the CWA authorizes the Corps (or a State with an
approved section 404 permitting program) to issue permits for the
discharge of dredged or fill material into waters of the U.S. Two
States (New Jersey and Michigan) have assumed the CWA section 404
permitting program. On August 25, 1993 (58 FR 45008), we issued a
regulation (the ``Tulloch Rule'') that defined the
[[Page 4551]]
term ``discharge of dredged material'' as including ``any addition,
including any redeposit, of dredged material, including excavated
material, into waters of the U.S. which is incidental to any activity,
including mechanized landclearing, ditching, channelization, or other
excavation that destroys or degrades waters of the U.S.'' The American
Mining Congress and several other trade associations challenged the
revised definition of the term ``discharge of dredged material,'' and
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, and enjoined us from applying or enforcing the regulation.
That ruling was affirmed on June 19, 1998, by the U.S. Court of Appeals
for the District of Columbia Circuit. Americian Mining Congress v.
United States Army Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997)
(``AMC''); aff'd sub nom, National Mining Association v. United States
Army Corps of Engineers, 145 F.3d 1339 (D.C.Cir. 1998) (``NMA'').
On May 10, 1999, we issued a final rule modifying our definition of
``discharge of dredged material'' in order to respond to the Court of
Appeals' holding in NMA, and to ensure compliance with the District
Court's injunction (64 FR 25120). That rule made those changes
necessary to conform the regulations to the courts' decisions,
primarily by modifying the definition of ``discharge of dredged
material'' to expressly exclude regulation of ``incidental fallback.''
The NMA court did not find that all redeposits are unregulable, and
recognized that redeposits at various distances from the point of
removal are properly the subject of regulation under the CWA. As
explained in the preamble to the May 10, 1999, rulemaking, our
determination of whether a particular redeposit of dredged material in
waters of the U.S. requires a section 404 permit would be done on a
case-by-case basis, consistent with our CWA authorities and governing
case law. The preamble to that rulemaking also described and summarized
relevant case law (see 64 FR 25121), for example, noting that the NMA
decision indicates incidental fallback ``. . . returns dredged material
virtually to the spot from which it came'' (145 F.3d at 1403) and also
describes incidental fallback as occurring ``when redeposit takes place
in substantially the same spot as the initial removal.'' 145 F.3d at
1401. The NMA court also noted that ``incidental fallback'' occurs when
a bucket used to excavate material from the bottom of a river, stream,
or wetland is raised and soils or sediments fall from the bucket back
into the water; the court further noted that ``fallback and other
redeposits'' occur during mechanized landclearing, when bulldozers and
loaders scrape or displace wetland soil as well as during ditching and
channelization when draglines or backhoes are dragged through soils and
sediments. 145 F.3d at 1403. The preamble also noted that the district
court in AMC 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 NMA Court noted 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). The preamble to our May
10, 1999, rulemaking stated that we would be undertaking 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.''
Subsequent to our May 10, 1999, rulemaking the National Association
of Homebuilders (NAHB) and others filed a motion with the district
court that issued the AMC injunction to compel compliance with that
injunction. The NAHB motion, among other things, asserted that the May
10, 1999, rule violated the court's injunction by asserting unqualified
authority to regulate mechanized landclearing. A decision on that
motion was still pending at the time we issued our August 16, 2000
proposal (65 FR 50108) to establish a rebuttable presumption that
mechanized landclearing, ditching, channelization, in-stream mining, or
other mechanized excavation activity in waters of the U.S. will result
in regulable discharges of dredged material.
As explained in the preamble, the proposed rule set forth:
* * * our expectation that, absent a demonstration to the
contrary, the activities addressed in the proposed rule typically
will result in more than incidental fallback and thus result in
regulable redeposits of dredged material. It would not, however,
establish a new formal process or new record keeping requirements,
and Section 404 permitting and application requirements would
continue to apply only to regulable discharges and not to incidental
fallback.
65 FR 50113.
As with today's final rule, the proposal addressed only matters
related to the ``discharge of dredged material'' under section 404 of
the CWA. We note that other regulatory authorities may be applicable to
activities in waters of the U.S., including stormwater permitting
requirements under CWA section 402, and, in the case of ``navigable
waters of the U.S.'' (so-called navigable in fact waters), section 10
of the Rivers and Harbors Act of 1899. Readers should refer to the
preamble of the proposal for further information on those authorities
(65 FR 50114).
The proposed rule had a 60 day comment period, which ended on
October 16, 2000. While that public comment period was still open, on
September 13, 2000, the district court denied NAHB's motion to compel
compliance with the AMC injunction, finding that our earlier May 10,
1999, rule was consistent with its decision and injunction, and the
decision of the D.C. Circuit in NMA. American Mining Congress v. U.S.
Army Corps of Engineers, Civil Action No. 93-1754 SSH (D.D.C. September
13, 2000) (hereafter referred to as ``NAHB Motion Decision'').
In that decision the court found that, ``Inasmuch as this Court in
AMC, and the Court of Appeals in NMA, invalidated the Tulloch Rule
because it regulated incidental fallback, the Court's order enjoining
the agencies from applying or enforcing the Tulloch Rule must be
understood to bar the agencies from regulating incidental fallback.''
NAHB Motion Decision, slip op. at 8-9. The court then went on to
determine that by making clear that the agencies may not exercise
section 404 jurisdiction over redeposits of dredged material to the
extent that the redeposits involve only incidental fallback, the May
10, 1999, rulemaking did not violate the court's injunction and is
consistent with the decisions in AMC and NMA. Id. at 10-11.
C. Discussion of Final Rule
We received approximately 9,650 comments on the August 16, 2000,
proposal (because the numbers given are rounded off, we refer to them
as ``approximate.'') Approximately 9,500 were various types of
individual or form letters from the general public expressing overall
support for the rule or requesting it be strengthened. We received
approximately 150 comments from various types of organizations, state
or local agencies, or commercial entities, 75 of which provided
detailed
[[Page 4552]]
comments, with approximately 50 of these expressing opposition to the
rule. Organizations opposing the rule were primarily construction and
development interests, mining and commerce interests, as well as local
agencies or water districts with agricultural, flood control, or
utility interests. These commenters often expressed the view that the
proposal was inconsistent with the AMC and NMA opinions and the CWA.
These comments also often expressed concern that the rebuttable
presumption would be difficult or impossible to rebut and should be
removed from the rule, and also frequently stated that a definition of
incidental fallback was necessary, with many expressing preference for
a ``brightline'' definition.
Organizations supporting the proposal or its strengthening included
state and local natural resource and environmental protection agencies
and environmental organizations. In addition, one detailed letter from
a group of wetland scientists associated with a variety of institutions
was received, and expressed support for the proposed rule and its
strengthening. Commenters favoring the rule or its strengthening
generally believed that the proposed rule's presumption that mechanized
landclearing, ditching, channelization, in-stream mining, or other
mechanized excavation activity in waters of the U.S. result in more
than incidental fallback, and thus involve a regulable discharge of
dredged material, was appropriate. Many of these commenters, especially
environmental organizations, requested that the rule be strengthened in
a number of ways, particularly by identifying certain activities as
always requiring a permit, and making clear that if chemical
constituents are released into the water column or if material is moved
in a way that permits its more ready erosion and movement downstream, a
regulable discharge occurs. In addition, many of the commenters
favoring the proposed rule or requesting that it be strengthened also
expressed the view that it should define incidental fallback.
We have carefully considered all the comments received on the
proposal in developing today's final rule. A detailed discussion of
those comments and our responses is set out in section III of today's
preamble.
Like the proposal, today's rule modifies our definition of
``discharge of dredged material'' in order to clarify what types of
activities we believe are likely to result in regulable discharges. As
described in the preamble to the proposed rule (65 FR 50111-50113),
based on the nature of the equipment, we believe that the use of
mechanized earth moving equipment to conduct landclearing, ditching,
channelization, in-stream mining, or other mechanized excavation
activity in waters of the U.S. is likely to result in regulable
discharges of dredged material.
However, in response to comments we received expressing concern
that the proposal would result in a shift in the burden of proof and
impose undue burdens on project proponents to ``prove a negative,'' we
have made a number of changes to clarify that this is not our intent
and will not be a result of this rule. Because these concerns primarily
appeared to arise out of the proposed rule's use of a rebuttable
presumption formulation, we have redrafted the rule language to
eliminate use of a rebuttable presumption.
As we had explained in the proposed rule preamble, the proposal was
intended to express our expectation that the activities in question
typically result in regulable discharges, not to create a formal new
process or record keeping requirements (65 FR 50113). The rule now
provides that the agencies regard the use of mechanized earth-moving
equipment to conduct landclearing, ditching, channelization, in-stream
mining or other earth-moving activity in waters of the U.S. as
resulting in a discharge of dredged material unless project-specific
evidence shows that the activity results in only incidental fallback
By no longer employing a rebuttable presumption, we believe it is
more evident that we are not creating a new process or altering
existing burdens under the CWA to show a regulable discharge of dredged
material has occurred. To make this point unmistakably clear, we also
have added a new sentence to the rule language that expressly provides
the rule does not and is not intended to shift any burden in any
administrative or judicial proceeding under the CWA. In addition, the
rule language has been clarified to make it more evident that we will
not look to project proponents alone to provide information that only
incidental fallback results. Thus, the rule language now refers to
``project-specific evidence show[ing] that the activity results in only
incidental fallback.'' While this might consist in large part of
information from project proponents, we also will look to all available
information, such as that in agency project files or information gained
from site visits, when determining if a discharge of dredged material
results.
We also received a number of comments questioning how the
presumption contained in the proposed rule might apply to particular
equipment, or asserting that the presumption in the proposal was too
broad. We thus are clarifying in the final rule language itself that we
are addressing mechanized ``earth-moving'' equipment (e.g., bulldozers,
graders, backhoes, bucket dredges, and the like). Earth-moving
equipment is designed to excavate or move about large volumes of earth,
and we believe it is reasonable and appropriate for the agencies to
view the use of such equipment in waters of the U.S. as resulting in a
discharge of dredged material unless there is case specific information
to the contrary. The administrative record of today's rule contains
additional information on the nature of this equipment and its
operation.
We received a large number of comments, both from those opposed to
the proposed rule, as well as those supporting the proposal (or its
strengthening), requesting us to provide a definition of ``incidental
fallback.'' The proposed rule had not done so, instead providing
preamble discussion of the relevant case law addressing that term, as
well as referring readers to the preamble to our earlier May 10, 1999,
rule (65 FR 50109-50110; 64 FR 25121). Subsequent to the proposal, as
many of the commenters opposed to the proposal noted, the court, in its
decision on the NAHB motion to compel compliance with the AMC court's
injunction, cautioned against parsing the AMC and NMA language to
render an overly narrow definition of incidental fallback. NAHB Motion
Decision, slip opinion 12-14.
In light of numerous comments requesting that a definition of
incidental fallback be included in the regulations, and consistent with
our preamble discussions of relevant case law and the more recent
discussion in the court's NAHB Motion Decision, we have provided a
descriptive definition in the final rule. That language, which is based
on the AMC and NMA, cases and the NAHB Motion Decision, provides that:
Incidental fallback is the redeposit of small volumes of dredged
material that is incidental to excavation activity in waters of the
United States when such material falls back to substantially the
same place as the initial removal. Examples of incidental fallback
include soil that is disturbed when dirt is shoveled and the back-
spill that comes off a bucket when such small volume of soil or dirt
falls into substantially the same place from which it was initially
removed.
This language is fully consistent with the spirit and intent of
those decisions. As noted in the AMC decision, incidental fallback
involves ``incidental soil movement from excavation'' (951
[[Page 4553]]
F.Supp. 270); thus the definition in today's rule refers to the
redeposit of small volumes of dredged material incidental to excavation
activities. (See also NMA, 145 F.3d at 1404 (the statutory term
``addition'' does not cover the situation where material is removed
``and a small portion of it happens to fall back'')). The rule language
refers to ``incidental fallback'' as returning dredged material to
``substantially the same place'' from which it came, a formulation
consistent with the AMC and NMA decisions. AMC, 951 F.Supp. at 270;
NMA, 145 F.3d. at 1403; see also, NAHB Motion Decision at 13. The
examples of incidental fallback given in the rule's definition are
drawn from the AMC decision. See, AMC, 951 F.Supp. at 270. We,
therefore, believe the definition reflects an objective and good faith
reading of the AMC and NMA decisions. See, NAHB Motion Decision, slip
op. at 14.
We believe today's rule both ensures environmental protection
consistent with CWA authorities and increases regulatory certainty in a
manner fully consistent with the AMC and NMA decisions and the district
court injunction. This has been accomplished through regulatory
language that serves to put agency staff and the regulated community on
notice that absent information to the contrary, it is our expectation
that the use of mechanized earth moving equipment to conduct
landclearing, ditching, channelization, in-stream mining, or other
mechanized excavation activity in waters of the U.S. is likely to
result in discharges of dredged material. In addition, in response to
comments, and in order to provide a descriptive standard of what
constitutes non-regulable incidental fallback, we have provided in the
rule a descriptive definition of that term which we believe to be fully
consistent with an objective and good faith reading of the AMC, NMA,
and NAHB Motion decisions.
At the same time, today's rule is not unnecessarily prescriptive
and still allows for the case-by-case consideration of whether a
discharge results. In making that determination, the agencies will
consider any available information on project plan or design, as well
as other information, such as site visits or field observations, during
and after project execution. Information which we will consider
includes that from project proponents, as well as other available
information.
In determining if a regulable discharge of dredged material occurs,
we will carefully evaluate whether there has been movement of dredged
material away from the place of initial removal. In doing so, we will
look to see if earth-moving equipment pushes or relocates dredged
material beyond the place of excavation, as well as whether material is
suspended or disturbed such that it is moved by currents and resettles
beyond the place of initial removal in such volume as to constitute
other than incidental fallback, and thus be a regulable discharge. See
e.g., United States v. M.C.C. of Florida, 722 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) (resettling of
material resulting from propeller rotation onto adjacent seagrass beds
is jurisdictional). In appropriate situations, we also will include
consideration of whether the operation results in the release of
pollutants to the environment that were formerly physically or
chemically bound up and sequestered from the environment prior to the
dredging or excavation of the sediments. See e.g., United States v.
Deaton, 209 F. 3d 331 (4th Cir. 2000) at 335-336 (discussing release of
pollutants in determining sidecasting to be jurisdictional). In
considering whether material is relocated, we will look at both
horizontal and vertical relocation. For example, sidecasting, which
involves horizontal relocation to the side of the ditch, is a regulable
discharge. See e.g., Deaton, supra; NAHB Motion Decision at n. 3.
Similarly, where activities involve the vertical relocation of the
material, such as occurs in backfilling of trenches, a regulable
discharge results. See e.g., (United States v. Mango, 997 F. Supp. 264,
285 (N.D.N.Y. 1998), affirmed in part, reversed in part on other
grounds, 199 F.3d 85 (2d Cir. 1999); see, Iroquois Gas Transmission
System v. FERC, 145 F.3d 398 at 402 (2nd Cir. 1998) (backfilling of
trenches is jurisdictional).
We also will take into account the amount or volume of material
that is redeposited. Incidental fallback at issue in AMC and NMA was
the small-volume fallback from excavation. Similarly, today's rule
defines incidental fallback as the ``small volumes of dredged
material'' falling back to substantially the same place as the initial
removal. Therefore, we will consider the volume redeposited in deciding
whether the activity results in only incidental fallback.
Thus, the determination of whether an activity results in a
regulable discharge of dredged material or produces only incidental
fallback involves consideration of the location and the amount of the
redeposit. Because of the fact-specific nature of the assessment of
these factors, and their interrelated nature, we do not believe it to
be feasible or appropriate to establish hard and fast cut-off points
for each of these factors. Rather, the totality of the factors will be
considered in each case.
Finally, we note that the proposed rule would have removed existing
paragraph 3(iii) from the Corps' regulations at 33 CFR 323.2(d) and the
counterpart EPA regulation at 40 CFR 232.2. Those paragraphs contained
identical ``grandfather'' provisions for certain activities to be
completed by August 24, 1995, and were proposed for deletion as being
outdated. 65 FR 501211. Today's final rule, consistent with the
original proposal, removes those paragraphs from the regulations.
III. Discussion of Comments
A. Legality of Proposal
1. Proposal as Inconsistent With NMA and Ruling on NAHB Motion to
Compel
A number of commenters contended that the proposed rule conflicts
with the rulings of the courts in AMC, NMA, and the NAHB Motion
Decision. Among other things, they characterized the rule as an ``end-
run'' around the nationwide injunction affirmed in NMA; ``an attempt to
re-promulgate [the 1993 Tulloch Rule];'' and an effort to regulate the
activities that the NMA court said were not regulable. In particular,
these commenters characterized the NMA decision as holding that
regulating any redeposit of dredged material during removal activities
outruns the section 404 provisions of the CWA and that the agencies may
only regulate activities that cause a net addition to waters of the
U.S. They then argued that the rule is at odds with that holding. In
addition, they asserted that the presumption would result in regulating
effects as opposed to discharges and would make all excavation and
landclearing activities regulated. Several commenters also noted that
using a presumption does not address the NMA court's instruction that
the agencies attempt to draw a bright line between what is a regulable
redeposit versus non regulated incidental fallback.
As discussed in more detail in the sections below, we believe that
the changes that we have made in today's rule address such concerns.
Moreover, we do not agree with the legal analysis in many of the
comments. In a number of respects, we believe the commenters have
simply read the NMA decision too broadly. The court in NMA stated:
``[W]e do not hold that the Corps may not legally regulate some forms
of redeposit under its section 404 permitting authority. We hold only
that by asserting jurisdiction over `any
[[Page 4554]]
redeposit,' including incidental fallback, the Tulloch Rule outruns the
Corps' statutory authority.'' 145 F. 3d at 1405. Thus, the court
explicitly recognized that some redeposits are regulable and indicated
that the agencies' attempt to draw a line between incidental fallback
and regulable redeposits would be entitled to deference. The court also
acknowledged that sidecasting, the placement of removed soil in a
wetland some distance from the point of removal, has always been
regulated by the agencies; and finally, it recognized that removal of
dirt and gravel from a streambed and its subsequent redeposit in the
waterway after segregation of minerals constitutes an addition.
The court's acceptance of these principles undercuts the conclusion
suggested by some that its statement that ``incidental fallback
represents a net withdrawal, not an addition'' must be read to mean
that activities that involve removal of material can never constitute a
discharge. Similarly, the court's statement that ``Congress could not
have contemplated that the attempted removal of 100 tons [of dredged
spoil] could constitute an addition simply because only 99 tons were
actually taken away'' must also be reconciled with the court's clear
recognition that some redeposits constitute an addition.
In addition, the Court's NAHB Motion Decision supports the
agencies' view that a more narrow reading of the NMA decision than some
commenters are advocating is correct. The court stated:
Inasmuch as this Court in AMC, and the Court of Appeals in NMA,
invalidated the Tulloch Rule because it regulated incidental
fallback, the Court's order enjoining the agencies from applying or
enforcing the Tulloch Rule must be understood to bar the agencies
from regulating incidental fallback [footnote omitted] * * * The May
10th Rule is facially consistent with the Court's injunction because
it eliminates Sec. 404 jurisdiction over incidental fallback, and
removes the language asserting jurisdiction over ``any'' redeposit
of dredged material. The rule makes clear that the agencies may not
exercise Sec. 404 jurisdiction over redeposits of dredged material
to the extent that the redeposits involve only incidental fallback
[citation omitted] (emphasis added).
Court's Denial of Motion to Compel, at 9-10.
Thus, the sweeping claims that ``any redeposit'' and all removal
activities are beyond the scope of the CWA can not be substantiated
based on NMA or other existing law. Today's rule provides a definition
of ``incidental fallback'' that adheres to the judicial guidance
provided in the AMC and NMA cases and the NAHB Motion Decision, while
making clear to the public the types of activities that we believe are
properly regulated.
a. Excavation not covered. The contention that excavation and other
removal activities can never be regulated fails to recognize that
``discharges of pollutants'' can occur during removal activities even
where the ultimate goal is withdrawal of material. That the CWA
definition of ``pollutants'' does not include ``incidental fallback
from dredging operations'' is of no significance, contrary to the
suggestion of one commenter, because it does include ``dredged spoil.''
Several commenters referenced dictionary definitions of ``excavate''
and ``discharge'' to buttress their view that a removal activity can
not involve a discharge. One commenter, in particular, argued that
``discharge'' denotes an intentional act, and that redeposits from
excavation activity may not be regulated because they do not involve an
intentional act. These definitions, however, do not indicate whether,
in a given situation, pollutants were added to waters of the U.S.
within the meaning of the CWA, the only issue we are concerned with
here. First, as indicated in section III. A. 4 of this preamble, there
is no support under the CWA for the position that a discharge must be
an intentional act. In addition, as indicated in the preamble to the
proposed rule, as a general matter, excavation and other earth-moving
activities that are undertaken using mechanized earth-moving equipment
typically result in the addition of a pollutant to navigable waters
because the nature of such equipment is to move large volumes of
material within and around the excavation site.
The court in NMA also recognized that redeposits associated with
earth-moving activities could be regulated. (``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.). As described
in the preamble to the proposed rule, the machinery used for
excavation, mechanized landclearing, and other removal activities
generally results in substantial soil movement beyond the area from
which the material is being removed (See also section III D of today's
preamble). This substantial soil movement and distribution of material
makes the situations involving mechanized earth-moving equipment akin
to the numerous cases in which the courts have found that the redeposit
of material constituted the discharge of a pollutant. See e.g.,
Avoyelles Sportsmen's League v. Marsh, 715 F. 2d 897, 923 (5th Cir.
1983)(recognized that the term ``discharge'' covers the redepositing of
materials taken from wetlands); United States v. Mango, 997 F. Supp.
264, 285 (N.D.N.Y. 1998), affirmed in part, reversed in part on other
grounds, 199 F. 3d 85 (2d Cir. 1999)(found that backfilling of trenches
with excavated material was a discharge); United States v. M.C.C. of
Florida, Inc., 772 F. 2d 1501 (11th Cir. 1985)(holding that
redeposition of seabed materials resulting from propeller rotation onto
adjacent sea grass beds was an ``addition'' of dredged spoil); Slinger
Drainage Inc., CWA Appeal No. 98-10 (EPA Environmental Appeals Board
Decision (EAB)(holding that backfilling by a Hoes trenching machine is
a regulable discharge of dredged material, not incidental
fallback)(appeal pending); United States v. Deaton, 209 F. 3d 331 (4th
Cir. 2000)(holding that sidecasting is a regulated discharge); see also
United States v. Huebner, 752 F. 2d 1235 (7th Cir.), cert denied, 474
U.S. 817 (1985) (sidecasting materials along a ditch and then using a
bulldozer to spread material over several acres constituted a discharge
of dredged material).
We do recognize, however, that some excavation activities by using
specialized techniques or precautions may be conducted in such a manner
that no discharge of dredged material in fact occurs. Today's rule
specifically provides for consideration of project-specific information
as to whether only incidental fallback results in determining
jurisdiction under section 404. For example, we acknowledge that some
suction dredging operations can be conducted in such a manner that if
the excavated material is pumped to an upland location or other
container outside waters of the U.S. and the mechanized removal
activity takes place without re-suspending and relocating sediment
downstream, then such operations generally would not be regulated.
Other examples of activities that would generally not be regulated
include discing, harrowing, and harvesting where soil is stirred, cut,
or turned over to prepare for planting of crops. These practices
involve only minor redistribution of soil, rock, sand, or other surface
materials. The use of K-G blades and other forms of vegetation cutting
such as bush hogging or mowing that cut vegetation above the soil line
do not involve a discharge of dredged material.
b. Too narrow reading of ``incidental fallback''. Several
commenters incorrectly equate ``incidental fallback'' with all dredged
spoil that is redeposited in regulated waters as a result of activities
using mechanized
[[Page 4555]]
equipment. As indicated, the NMA court made it clear that regulable
redeposits could be associated with such activities and, to the extent
that they were, the NMA decision did not preclude regulation. Today's
rule explicitly excludes incidental fallback from the definition of
discharge of dredged material. First, it does not alter the May 10,
1999, amendment to the definition of ``discharge of dredged material,''
which explicitly excluded incidental fallback from the definition. In
addition, today's rule provides for the consideration of project-
specific evidence which shows that only incidental fallback results
from the activity. Thus, we have taken the necessary steps to ensure
that we do not regulate ``incidental fallback'' when it is the only
material redeposited during certain removal activities. The Court's
NAHB Motion Decision found our May 10, 1999, amendment consistent with
the injunction in the NMA case, and today's rule does not change or
alter the underlying provisions of that rule.
Nevertheless, several commenters have argued that the agencies are
interpreting ``incidental fallback'' too narrowly and have not heeded
language in the Court's NAHB Motion Decision that cautioned against
applying a too narrow definition of incidental fallback that would be
inconsistent with an objective and good faith reading of the AMC and
NMA decisions. Today's rule, however, is entirely consistent with that
order and the decisions in AMC and NMA. First, commenters are incorrect
that we have construed the meaning of ``incidental fallback'' too
narrowly because, in formulating the definition in today's regulation,
we were guided by the descriptions of incidental fallback in the
judicial opinions. The NMA decision indicates that 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. We
believe that adopting a definition that relies heavily on the judicial
formulations of ``incidental fallback'' will ensure consistency with
those opinions as well as help project proponents understand the
agencies' view of ``incidental fallback.'' We disagree strongly with
commenters who suggested that we are trying to inappropriately parse
the language of the AMC and NMA decisions, and believe that our
definition of ``incidental fallback'' is based upon a good faith
interpretation of those rulings. See section II C of today's preamble
for additional discussion of this issue.
Nevertheless, as discussed in section III E of today's preamble, we
did not adopt a definition of incidental fallback that would turn on
whether the material was redeposited to ``the same general area'' from
which it was removed. We believe this formulation could potentially be
read to mean that incidental fallback would include any dredged
material redeposited in the same overall site where excavation
occurred, as opposed to the place of initial removal. We believe such a
broad formulation would not adequately recognize court decisions that
have found a regulable discharge where redeposits have occurred even
though only a short distance from the removal point. See, e.g., Deaton,
Mango, etc.
Moreover, contrary to one commenter's contentions, today's rule is
not inconsistent with the approach taken by the agencies in the 1997
Tulloch Guidance (``Corps of Engineers/Environmental Protection Agency
Guidance Regarding Regulation of Certain Activities in Light of
American Mining Congress v. Corps of Engineers,'' April 11, 1997)
(``1997 Guidance''). The commenter pointed to language in the 1997
Guidance stating that if there is ``movement of substantial amounts of
dredged material from one location to another in waters of the United
States (i.e., the material does not merely fall back at the point of
excavation), then the regulation of that activity is not affected by
the Court's decision.'' Pointing to that language, the commenter went
on to assert the 1997 Guidance meant that unless ``substantial
amounts'' of dredged material were moved, then no discharge occurs, and
concluded from this that the proposed rule was inconsistent with the
1997 Guidance. In response, we do not believe the 1997 Guidance can be
properly read to support the commenter's conclusions. The language
quoted by the commenter comes from a portion of the guidance under the
section header ``Types of Discharge Not Addressed by Court Decision.''
In addition, it simply provides guidance to field personnel that where
an activity results in movement of substantial volumes of dredged
material, regulation of the activity is unaffected by the court's
decision. The 1997 Guidance thus does not mean we interpreted the AMC
or NMA decisions to allow regulation only if relocation of substantial
amounts of dredged material takes place. In fact, the 1997 Guidance
provides at page 3 that: ``The Court's decision only has implications
for a particular subset of discharges of dredged material, i.e., those
activities where the only discharges to waters of the U.S. are the
relatively small volume discharges described by the Court as
``incidental fallback * * *'' (emphasis added). Nothing in today's rule
is inconsistent with the 1997 Guidance.
The preamble to the proposed rule clearly recognized that there can
be situations where due to the nature of the equipment used and its
method of operation, a redeposit may consist of material limited to
``incidental fallback.'' In addition, that preamble recognized (as do
the regulations at 33 CFR 323.2(d)(2)(ii) and 40 CFR 232.2), for
example, that the use of equipment to cut trees above the roots that
does not disturb the root system would not involve a discharge.
Moreover, as discussed in section II C of today's preamble, we have
modified today's final rule to make it even more clear that project-
specific information may be used to demonstrate that only ``incidental
fallback'' will result. Despite the discussion in the proposed rule's
preamble, some commenters contended that we were overreaching. We
believe that the language changes reflected in today's rule as well as
the discussion in today's preamble clarify that redeposits associated
with the use of mechanized earth-moving equipment will only be
regulated if more than incidental fallback is involved, while making
clear our view that activities involving mechanized earth-moving
equipment typically result in more than incidental fallback. Where the
redeposits are limited to incidental fallback, they would not be
regulated.
c. Covers same activities as 1993 Tulloch Rule. A number of
commenters argued that the proposed rule was an improper attempt to
circumvent the NMA decisions and reinstate the invalidated 1993 Tulloch
Rule. They contended that the agencies relied on no new information in
developing this rule and that large segments of the proposed rule
appeared in, and were used to justify, the 1993 Rule. Moreover, as
opposed to narrowing the definition of ``discharge of dredged
material'' as instructed by the courts, several argued that the
proposed rule simply swept in the same activities and created a vague
and impossible standard for rebutting the presumption. Several asserted
that the agencies made no attempt to create
[[Page 4556]]
a ``brightline'' distinction between incidental fallback and regulable
redeposits as encouraged by the courts and instead, simply shifted the
burden to the regulated community. The end result, they argued, would
be that the agencies would regulate activities that are not
appropriately within the scope of the CWA, because, among other
reasons, people lack the resources, wherewithal, or information to
rebut the presumption.
The changes that we have made in the rule language further clarify
the distinctions between our approach today and the 1993 Tulloch Rule.
We believe that today's rule reflects important differences with the
1993 Tulloch Rule that make our action consistent with the NMA rulings.
First, as discussed previously in this preamble, today's amendments
along with those made on May 10, 1999, explicitly and repeatedly
exclude incidental fallback from the definition of ``discharge of
dredged material.'' Today's rule also provides a descriptive definition
of incidental fallback and explicitly indicates that project-specific
evidence may be used to show that only incidental fallback will result
from the activity. These provisions are a direct response to the NMA
rulings and to the comments that we received. In contrast, the relevant
sections of the 1993 Tulloch Rule included any redeposit, including
redeposits consisting of only incidental fallback.
Similarly, contrary to the suggestion of one commenter, the
rebuttable presumption would not have recast in different legal
language the central hypothesis of the Tulloch Rule that every
redeposit of dredged material was a discharge subject to regulation
under section 404. The commenter referenced language from the 1993
Preamble stating that it is ``virtually impossible to conduct
mechanized landclearing, ditching, channelization or excavation in
waters of the United States without causing incidental redeposition of
dredged material (however small or temporary) in the process.'' 58 FR
at 45017. In contrast, the position that we are taking today does not
cast the jurisdictional net so broadly. Both the rebuttable presumption
in the proposal and today's rule are more narrow in scope because we
are not regulating incidental fallback. As discussed in the previous
paragraph, the regulations defining the discharge of dredged material
were amended on May 10, 1999, to make clear that incidental fallback is
not encompassed within that definition and today's rule does not alter
that exclusion.
Second, some commenters claimed that the rebuttable presumption
that was in the proposed rule is the same as the de minimis exception
that was added to the regulations as part of the 1993 Tulloch Rule and
continues to be a part of the definition of discharge of dredged
material today. 33 CFR 323.2(d)(3); 40 CFR 232.2. We believe that this
comment misunderstands the relationship between today's rule and the de
minimis exception contained in the 1993 Tulloch Rule. We have not
reopened in this rulemaking the de minimis exception from the 1993
rule, since that provision is irrelevant to determining whether an
activity results in a discharge of dredged material. As promulgated in
the 1993 rule, the de minimis exception provides that section 404
authorization is not required for the incidental addition of dredged
material associated with an activity that would not destroy or degrade
a water of the U.S. Under the 1993 rule, mechanized landclearing,
ditching, channelization, or other excavation activity that results in
a redeposit into waters of the U.S. were presumed to destroy or degrade
waters of the U.S., unless the project proponent demonstrated prior to
proceeding with the activity that it would not cause such effects. 33
CFR 323.2(d)(3); 40 CFR 232.2. Thus, the de minimis exception in the
existing regulations and its associated presumption address the issue
of whether otherwise regulable discharges are excluded from section 404
authorization because of minimal effects on the environment, and does
not, as some commenters suggested, serve as a means of asserting
authority over activities outside our jurisdiction based on the effects
of activities.
By contrast, today's rule addresses the issue of whether a
regulable discharge of dredged material is even involved. Today's rule
does not eliminate the requirement for a ``discharge.'' Instead it
reflects the agencies' view that regulable discharges generally are
expected to occur when certain activities using mechanized earth-moving
equipment are undertaken. The proposed rule described this view in
terms of a presumption but allowed project proponents to demonstrate
that their activities caused only incidental fallback, which is beyond
section 404 jurisdiction. Today's rule does not use the words
``presumption'' or ``presume'' to avoid any misunderstanding that we
are attempting to shift CWA burdens to the project proponent. If the
activity involves only incidental fallback, it would not be regulated
regardless of the level of associated environmental impact because the
statutory prerequisite of a discharge has not occurred. Moreover,
unlike the treatment of mechanized activities when attempting to
qualify for the de minimis exception, neither the proposed nor final
rules require that the project proponent affirmatively demonstrate to
the agencies that no discharge will occur prior to proceeding with his
activities. Thus, the de minimis exception and today's rule serve
different purposes and operate differently within the context of the
regulation and for that reason the de minimis exception was not
reopened as part of this rulemaking.
In addition, one commenter charged that by adopting a rebuttable
presumption similar to the one proposed in the 1992 proposal but that
was dropped prior to final promulgation in 1993, the agencies make
clear their intent to sweep into regulation specific activities rather
than determine actual discharges. In response, we note that the 1992
proposal actually contained an irrebutable presumption that was more
inclusive than what we promulgated in the 1993 Tulloch Rule and than
either the proposed or final rules we are addressing today. In fact,
contrary to the sentiment expressed in the comment, the allowance for
project-specific evidence that the activity results in only incidental
fallback reflects our effort to restrict regulation to only regulable
discharges.
We do not believe that it is of any significance that there is
overlap between the activities addressed by today's rule and the 1993
Tulloch Rule. The NMA court did not find that all activities
potentially encompassed by that rule were beyond the scope of the CWA,
but rather that incidental fallback was excluded. NAHB Motion Decision.
Thus, it is no surprise that the two rules address some of the same
activities.
d. Improperly relies on an ``effects'' test. Several commenters
argued that the proposed rule improperly relies on the broad goals of
the CWA and an ``effects test'' as the basis for establishing
jurisdiction. They contended that this approach is inconsistent with
the NMA-related decisions and with other cases addressing the basis for
jurisdiction under the CWA. They stated further that the CWA was not
intended to provide comprehensive protection for wetlands. We believe
that the commenters misunderstood the purpose and effect of the
proposal, as well as have misread the conclusions in the NAHB Motion
Decision about an effects based test of jurisdiction.
First, the agencies agree that the CWA regulates ``discharges'' and
today's rule
[[Page 4557]]
in no way establishes an effects-based test for asserting CWA
jurisdiction. As was indicated in the proposal, the presence of a
``discharge'' of dredged or fill material into waters of the U.S. is a
prerequisite to jurisdiction under section 404. The purpose of this
rule is to provide further clarification of what constitutes a
``discharge of dredged material.'' As indicated, we regard the use of
mechanized earth-moving equipment to conduct landclearing, ditching,
channelization, in-stream mining or other earth-moving activity in
waters of the U.S. as resulting in a discharge of dredged material
unless there is project-specific information to the contrary. Thus,
although significant adverse environmental effects can result from
activities undertaken using mechanized earth-moving equipment, the
jurisdictional basis is the presence of regulable discharges.
To the extent these comments are addressing the de minimis
exception contained in the 1993 rule, the comments are outside the
scope of this rulemaking because we have not reconsidered that
provision here. We note that the continued operation of this existing
regulatory provision is consistent with AMC and NMA. The NAHB Motion
Decision affirmatively rejected the position that ``the Court's
injunction must be understood to bar application and enforcement of the
effects-based test of jurisdiction * * * because the Court also
rejected this component of the Tulloch Rule * * * [citation omitted.]''
The Court stated :
The Court rejected this test because the agencies were using it
to assert jurisdiction over otherwise non-regulable activities; the
Court expressly did not determine whether the effects-based test of
jurisdiction would be valid if applied to activities that otherwise
come within the scope of the Act. [citation omitted] Thus, where the
effects-based test is not applied to otherwise non-regulable
activities under the Act (such as incidental fallback), the Court's
injunction does not bar its application.
NAHB Motion Decision, n. 8.
Likewise today's rule is not in conflict with the Slinger decision as
asserted by one of the commenters. In Slinger Drainage, Inc., EPA's
Environmental Appeals Board affirmed EPA's general view that `` the
pivotal consideration for purposes of deciding whether an individual
activity is or is not subject to the section 404 permitting requirement
is whether a discharge of dredged material takes place.'' In re:
Slinger Drainage, Inc., CWA Appeal No. 98-10 (September 29, 1999)(slip
opinion), at 19. Notably, the EPA Environmental Appeals Board also
stated in that opinion that the requirement for a discharge ``is not to
say that the `effects' of a particular activity are of no concern. In a
broad sense effects are the driving force behind the entire regulatory
scheme to protect wetlands.'' Id.
Finally, one commenter suggested that discussions in the proposed
rule's preamble concerning the release of contaminants in the water
column indicate that the agencies ``base their finding of jurisdiction
on analysis of the effects of the mechanized landclearing, ditching, or
other activity.'' This is incorrect. Rather than being regulated based
on the effect on water quality, as discussed in section III D of
today's preamble, the transport of dredged material downstream or the
release of previously bound-up or sequestered pollutants (which are in
and part of the dredged material) may constitute a discharge, not by
virtue of associated environmental impacts, but by virtue of being
added to a new location in waters of the U.S. In evaluating whether
suspension or downstream transport results in a regulable discharge or
only incidental fallback, we would consider the nature and amount of
such suspension and transport.
e. Inconsistency with District Court ``specified disposal site''
rationale. Several commenters contended that today's rule ignores the
AMC court's analysis of ``specified disposal sites.'' We do not see
today's rule as inconsistent with this aspect of the court's decision.
The court in AMC held that, even if the term ``addition of a
pollutant'' were broad enough to cover incidental fallback, the
language ``specified disposal sites'' in section 404(a) would have led
the court to the same holding. Because today's rule does not regulate
incidental fallback, it is entirely consistent with this aspect of the
court's opinion. Moreover, the court's reasoning in AMC was that the
1993 rule effectively made all excavation sites into disposal sites,
rendering the statutory language ``at specified disposal sites''
superfluous. Today's rule does not render the statutory language
superfluous because we are only asserting jurisdiction over redeposits
that occur outside the place of initial removal.
2. Proposal as Inconsistent With the CWA
Several other claims were made that today's rule is not consistent
with the CWA. Those claims included several pronouncements that the CWA
only regulates discharges and that the legislative history demonstrates
that Congress did not intend the CWA to regulate minor discharges
associated with dredging, mechanized landclearing, excavation,
ditching, channelization, and other de minimis discharges. One
commenter disagreed with the proposition that section 404(f)(2)
supports the proposed rule because it reflects Congressional
recognition that these activities result in discharges. This commenter
cited an excerpt from the NMA court decision--that the court was
``reluctant to draw any inference [from section 404(f)] other than that
Congress emphatically did not want the law to impede these bucolic
pursuits''--to support his assertion. Moreover, one commenter argued
that the lack of a specific reference to excavation activities in the
CWA is further evidence that small-volume, incidental deposits
accompanying landclearing and excavation activities were not intended
to be covered under section 404. Several commenters also contended that
the CWA does not require a person to make a prima facie showing that
activities are exempt from regulation under the Act and the agencies
can not administratively impose this requirement.
As discussed in section III A d, we recognize that the statute and
legislative history require a discharge for the requirements of the CWA
to apply. The definition of discharge of dredged material contained in
today's rule is, therefore, grounded on the statutory term ``discharge
of a pollutant'' contained in section 502(12) of the Act and relevant
court decisions that have construed the discharge requirement. We
think, however, that some commenters' assertion that legislative intent
mandates a broad construction of the term ``incidental fallback'' finds
no support either in section 502(12) (defining ``discharge of a
pollutant'' to include ``any addition of any pollutant'' (emphasis
added)) or section 404(f). We do not agree that the 1972 and 1977
legislative histories generally indicate that Congress did not intend
to regulate minor discharges resulting from certain activities,
including excavation. To the contrary, while Congress was focused on
preserving the Corps' autonomy with respect to navigational dredging,
it is clearly over-reading the history to suggest that other types of
removal activities implicitly were contemplated and rejected by the
choice of words such as ``discharge,'' ``pollutant,'' ``dredge spoil,''
or ``disposal sites,'' as one commenter suggested.
Moreover, the treatment of incidental discharges in the 1977 Act
helps illustrate Congress' view of these types of discharges. The
404(f) exemption was necessary because Congress recognized that, absent
an exemption, regulation of discharges ``incidental to'' certain
[[Page 4558]]
activities was encompassed within section 404 under certain
circumstances. There is no support in the Act or legislative history
for concluding that so-called ``minor'' discharges associated with
excavation were intended by Congress to be categorically excluded from
the Act. In fact, the very use of the word ``incidental'' in section
404(f)(2) suggests just the opposite. Incidental is defined as: ``1.
being likely to ensue as a chance or minor consequence; 2. occurring
merely by chance or without intention or calculation'' (Miriam-
Webster's Collegiate Dictionary (10th Ed., 1998)); ``1. occurring or
likely to occur as an unpredictable or minor accompaniment; 2. of a
minor, casual, or subordinate nature'' (American Heritage Dictionary of
the English Language; 4th Ed.); ``happening or likely to happen in an
unplanned or subordinate conjunction with something else'' (Random
House Dictionary of the English Language (2d Ed. 1987)). Thus, the use
of the word ``incidental'' in section 404(f)(2) belies the notion that
the Act mandates a broad interpretation of incidental fallback.
Senator Muskie, the sponsor of the 1977 CWA amendment, addressed
the section 404(f) exemptions as follows:
404(f) provides that Federal permits will not be required for
those narrowly defined activities that cause little or no adverse
effects either individually or cumulatively. While it is understood
that some of these activities may result in incidental filling and
minor harm to aquatic resources, the exemptions do not apply to
discharges that convert extensive areas of water into dry land or
impede circulation or reduce the reach or size of the water body. 3
A Legislative History of the Clean Water Act of 1977, 95th Cong., 2d
Sess., Ser. No. 95-14 (1978), at 474.
Thus, the Legislative History does not support the commenters' point.
In addition, we have clarified the rule in response to commenters
who argued that the proposal was at odds with the CWA because the Act
does not specifically require a discharger to make a prima facie case
that its activities are exempt from the permit requirements. The
revised language in today's rule clarifies that we are not requiring
that a project proponent make a prima facie case as to the absence of
jurisdiction. Today's rule sets forth the agencies' view that the use
of mechanized earth-moving equipment in waters of the U.S. results in a
discharge of dredged material unless there is evidence that only
incidental fallback results, but expressly provides that the rule does
not shift any burdens in administrative or judicial proceedings. This
is fully consistent with the Act. See section III B of today's preamble
for further discussion.
Some commenters have argued that because the regulatory definition
of discharge of dredged material is broad, the presumption is
unreasonable and cannot be refuted. As indicated in section II C of
today's preamble, we have removed the presumption language and added a
descriptive definition of incidental fallback, and also have clarified
that the regulation does not shift any burden in any administrative or
judicial proceeding under the CWA. We believe the definition mirrors
the reach of the statute as interpreted by the courts and, therefore,
is not unreasonable. As discussed in section III 1 b, we recognize that
there will be situations when the project-specific information
indicates that only incidental fallback results from the activity and
thus it would not be regulated.
3. Proposal as Misreading Applicable Case Law
A number of commenters claimed that we have misread and are
misapplying many of the cases we cited in support of today's action.
Most of these comments addressed our analysis of the cases relating to
what is a regulable discharge. We do not believe that we are unfairly
reading the major cases in this area.
From these cases, we know that the following factors are relevant
to determining regulable redeposits: quantity of material redeposited
(Avoyelles and Slinger involved substantial quantities of
redeposition); nature and type of relocation (redeposits adjacent to
the removal area or backfilling are generally regulated, see Deaton,
Mango, M.C.C. of Florida and Slinger); redeposit after some processing
of material (Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990)). As
discussed in section II C of today's preamble, an assessment of such
factors from the relevant cases will assist in determining whether a
regulable redeposit takes place. We believe that in most situations,
when applying the factors reflected in the cases, earth-moving
activities undertaken using mechanized earth-moving equipment result in
a discharge. Today's rule reflects that view while allowing evidence
that only incidental fallback will result from the activity to preclude
regulation.
Several commenters noted distinguishing facts that they believe
undermine our reliance on some of the cases we cited. For example,
several commenters noted that Avoyelles addresses the ``discharge of
fill material'' not the ``discharge of dredged material'' and stated
that our reliance on that case is misplaced. However, Avoyelles
addresses the issue of what is an ``addition,'' an analysis relevant
for both the discharge of fill and the discharge of dredged material.
Its conclusion that the redeposit of material constitutes a
``discharge'' thus is relevant to today's rule. Moreover, the court in
Deaton, citing Avoyelles among other cases, noted that its
understanding of the word ``addition'' as including redeposits was the
same as nearly every other Circuit Court to consider the addition
question. Deaton involved the ``discharge of dredged material;'' thus,
we do not believe it is appropriate to reject Avoyelles because the
court only expressly addressed how that activity involved a discharge
of ``fill.''
Similar distinguishing facts or other purported problems were
asserted with respect to other cases. For example, one commenter argued
that we cited Bay-Houston Towing Company as if the court had ruled that
``temporary stockpiling of peat in a wetland is a regulable
discharge.'' In fact, the parenthetical in the preamble for Bay-Houston
accurately reflects the court's determination that the activities at
issue were subject to regulation (``Spreading the sidecasted bog
material from the side of the ditch into the bog for future harvest * *
* involves relocating the bog materials * * * for a period of time
varying from `a few hours' to `a few days' '' or more. * * * Thus,
while there may be something a step further than `incidental fallback'
which would fall outside of the government's jurisdiction, Bay-
Houston's harvesting activities are not it.'') Bay-Houston Towing
Company, No. 98-73252 (E.D. Mich. 2000)(slip opinion) at 8--9. We
believe that the cases that we referenced in the proposed and final
rule preambles support our action.
Finally, one commenter argued that our discussion of the effects of
toxic releases from redeposited material does not justify our attempt
to regulate activities that are beyond the scope of the CWA. As we
noted in our discussion of the comments concerning the use of an
effects based test to establish jurisdiction (see section III A 1 d of
today's preamble), today's rule does not attempt to regulate activities
beyond the scope of the CWA or base our jurisdiction on effects. We are
only asserting jurisdiction over redeposits of dredged material that
meet the statutory requirement of a ``discharge.''
4. Proposal as Complying With Applicable Law
Several other commenters asserted their view that the proposal was
[[Page 4559]]
consistent with the court's decision in NMA. They noted that the
proposal reflected the concept expressed in AMC and NMA of ``incidental
fallback.'' They also noted that the proposal does not regulate
incidental fallback, but rather other types of redeposits that exceed
incidental fallback. These commenters pointed out that the NMA court
explicitly declined to hold that the Corps may not legally regulate
some forms of redeposit under section 404. For these reasons, the
commenters stressed that the proposal fully complied with the NMA
decision and nationwide injunction. As discussed in section II C of
today's preamble, we agree that today's rule is consistent with AMC and
NMA because, among other things, it retains the exclusion of incidental
fallback from the definition of discharge of dredged material.
One commenter described the proposal as consistent with NMA, even
though the proposal may regulate small or unintentional redeposits of
dredged material. The commenter argued that NMA is misinterpreted when
described as standing for the proposition that the word ``incidental''
in incidental fallback means that no regulable discharge results if
only small amounts of material are moved, or material is moved simply
as an unintentional consequence of other activity. The commenter
stressed that the CWA prohibits the discharge of ``any pollutant'' not
in accordance with a permit, not merely a specific quantity of
pollutants. A focus on some concept of ``significant'' quantity of
pollutants by weight, the commenter emphasized, makes no statutory or
ecological sense because dredged spoil contains not only inert sediment
but also small chemical constituents with potentially large
environmental impacts. The commenter also noted that the CWA at no
point suggests an added requirement that discharges be intentional.
We agree that neither NMA nor the CWA establishes a quantity
threshold triggering the permit requirement, but instead regulate any
addition of any pollutant which, in the case of dredged material,
consists of the dirt, soil or rock that is dredged, including any
biological or chemical constituents contained in the dirt, soil or
rock. However, the amount of redeposit is a factor that we believe
should be considered in determining if a redeposit constitutes more
than incidental fallback. We note that under AMC and NMA incidental
fallback involves small volume discharges returned to substantially the
same place as the initial removal. We also agree that, under these
decisions, incidental fallback does not extend to covering all material
that may be incidentally redeposited in the course of excavation
activities. Simply because a redeposit of dredged material may be
unintended does not mean it is not a discharge, since the CWA requires
a permit for any addition of a pollutant into waters of the U.S.,
regardless of the intent of discharger. The broad interpretation of NMA
urged by other commenters would elevate intent to overarching status in
discerning whether an addition has occurred, a result we do not believe
appropriate or justified under the CWA scheme. This suggested
interpretation would also blur any meaningful distinction between
incidental fallback and regulable discharges because it would
effectively remove the term ``fallback'' from EPA's regulation. In our
view, to constitute ``incidental fallback,'' a redeposit logically must
be both ``incidental'' (i.e., a minor, subordinate consequence of an
activity) and ``fallback'' (i.e., in substantially the same place as
the initial removal). Neither AMC nor NMA compels us to expand the
concept of ``incidental fallback'' to include all ``incidental
redeposits'' without regard to the volume or location of the redeposit,
and we decline to do so for the reasons stated above.
A number of commenters suggested that the agencies should find
guidance not only from the AMC and NMA decisions, but also from other
court decisions discussing the discharge of dredged material. In
particular, the commenters argued that the ``net addition'' approach in
NMA has been explicitly rejected in Deaton and implicitly rejected by
many others. Two commenters quoted Deaton to stress that: ``* * *[t]he
idea that there could be an addition of a pollutant without an addition
of material seems to us entirely unremarkable, at least when an
activity transforms some material from a nonpollutant into a pollutant
* * *'' and that ``[i]t is of no consequence that what is now dredged
spoil was previously present on the same property in the less
threatening form of dirt and vegetation in an undisturbed state.'' 209
F.3d at 335-36. Based on Deaton, several commenters believed there is
ample support for a rule considering the redeposit of dredged material
outside the place of initial removal as constituting an addition of
dredged material. The commenters also noted that such an approach is
consistent with the numerous other courts that have concluded that
moving around dredged material within the same water body requires a
permit. See, e.g., U.S. v. Brace, 41 F. 3d 117, 122 (3d Cir.), cert.
denied, 515 U.S. 1158 (1994) (Clearing, churning, mulching, leveling,
grading, and landclearing of the formerly wooded and vegetated site was
a discharge of a dredged spoil that under the specific facts did not
qualify for the 404(f)(1) farming exemption); United States v. Huebner,
752 F. 2d 1235 (7th Cir.), cert. denied, 474 U.S. 817 (1985)
(Sidecasting and use of a bulldozer to spread the material over several
acres constituted the discharge of dredged material that was not exempt
under 404(f)); Weiszmann v. U.S. Army Corps of Engineers, 526 F. 2d
1302, 1306 (5th Cir. 1976)( ``Spill'' of sediment during dredging of
canal was a discharge of a pollutant; court rejected the argument that
a spill is not a ``discharge.'').
We agree that Deaton and the other cases cited offer additional
support. Deaton provides helpful post-NMA insights into what is an
``addition'' of a pollutant, and we note that the NAHB Motion Decision
rejected the idea that there is a conflict between Deaton and NMA. NAHB
Motion Decision at 16. We believe today's rule is consistent with
Deaton, AMC, and NMA, and complies fully with the injunction affecting
the 1993 Tulloch Rule.
Numerous commenters looked to the CWA as a basis for concluding the
proposal was consistent with Congressional intent and NMA. One
commenter observed that numerous courts, including the U.S. Supreme
Court, have looked to the underlying policies of the CWA when
interpreting authority to protect wetlands. The commenter noted that
the goal of the CWA is to maintain the ``chemical, physical, and
biological integrity of the Nation's waters,'' and discussed the
pollution and adverse effects to aquatic ecosystems caused by wetlands
dredging and stream channelization. The commenter emphasized that it
would frustrate the goal of the CWA to not regulate the incidental soil
movements that occur during excavation. While we agree that regulation
of discharges of dredged material into waters of the U.S. is a critical
component of achieving CWA goals, consistent with AMC and NMA, CWA
section 404 does not extend to incidental fallback, and today's rule
has been drafted to ensure that we regulate only on the basis of the
discharge of dredged material.
Some commenters suggested that today's rule also be guided by CWA
section 404(f)(2) and its legislative history, which explicitly require
the regulation of ``incidental'' discharges under certain circumstances
even if they might otherwise be a result of a specially exempt category
of activities. Most of these commenters concluded
[[Page 4560]]
that section 404(f)(2) reflects an explicit Congressional intent to
regulate minor and unintentional soil movements that occur during the
process of constructing a drainage ditch in wetlands or otherwise are
incidental to an activity that ``impairs circulation and flow or
reduces the reach'' of waters of the U.S. One commenter concluded that
this section of CWA does not provide support for today's rule.
One commenter asserted that section 404(f)(2) conveys important
Congressional intent regarding how the term ``discharge'' should be
interpreted, despite the fact that the section does not define the term
``discharge.'' While agreeing with the District Court in AMC that the
section does not use effects ``to regulate activities that do not
themselves constitute discharges'' (951 F.Supp. 267, 275 n. 18), the
commenter argued that section 404(f)(2) makes clear the proposition
that: (1) At a minimum some category of ``incidental'' discharges are
regulated by the CWA; (2) regulation under section 404(f)(2) does not
depend on whether the ``incidental'' discharge itself has significant
environmental effects but only on whether the activity, to which the
discharge may be only ``incidental,'' has certain environmental
effects; and (3) regulated ``incidental'' discharges can occur during
the excavation or dredging process, because the language of the section
about ``reducing the reach'' and ``impairing the flow'' commonly occur
through excavation of drainage ditches.
One commenter suggested that language of section 404(f)(1)
similarly supported the idea that a permit should generally be required
for activities that drained wetlands. For example, the commenter noted
section 404(f)(1)(a) provides an exemption for ``minor drainage''
associated with farming and silvicultural activity. If discharges from
such activities trigger the provisions of section 404(f)(2), the
commenter asserted, Congress intended ``minor drainage'' to be
regulated. The commenter argued that the plain language in section
404(f)(1) provides guidance for interpreting the term ``discharge.''
Section 404(f)(1) states that ``the discharge of dredged or fill
material'' resulting from these activities ``is not prohibited by or
otherwise subject to regulation.'' In other words, the commenter
emphasized, the identified activities that may result in a discharge of
dredged or fill material ``are exempt from section 404 permit
requirements'' (quoting Corps and EPA implementing regulations, 33 CFR
323.2; 40 CFR 232.3(c)); otherwise, there would be no need for the
404(f)(1) exemptions.
As discussed in section III A 2 above, today's rule is based on the
definition of ``discharge of a pollutant'' contained in section 502 of
the Act, as construed by the caselaw, including the AMC and NMA
opinions finding that incidental fallback is not a regulable discharge
under the Act. We agree that section 404(f), and in particular the use
of the term ``incidental'' in section 404(f)(2) provides evidence
supporting our rejection of some commenters' assertions that the Act
restricts us to only regulating substantial or significant redeposits
of dredged material.
B. Overall Reasonableness of Presumption
Many commenters expressed views on the overall reasonableness of
the presumption contained in the proposed rule. Commenters maintaining
that the presumption is reasonable stated that it would not expand the
regulatory authority of the agencies or be contrary to relevant court
decisions, but instead would clarify how that existing authority would
apply. Others noted that the presumption is reasonable because it is
consistent with their experience or Corps experience in evaluating
discharges of dredged material. Numerous commenters affirmed the
validity of the examples of activities in the preamble of the proposed
rule that are presumed to result in a discharge of dredged material,
including those who asserted that the presumption would decrease
regulatory uncertainty as a consequence. These commenters also stated
their view that other specific activities (e.g., grading, leveling,
bulldozing) and redeposits of sediment away from the point of
excavation during ditching and channelization were regulable
discharges.
One commenter indicated that the very nature of how some equipment
operates means that it will always result in a discharge with more than
incidental fallback. Another asserted that dredging or excavation
activities conducted in a wetland or stream will always result in a
regulable discharge. A number of commenters provided citations from the
scientific literature in support of the presumption for these
activities. Several commenters maintained that the presumption is
reasonable because in any instance a person conducting such activities
would be given the opportunity to demonstrate that only incidental
fallback would result.
Today's rule reflects a reasonable belief that mechanized earth-
moving equipment when used in waters of the U.S. typically will cause
regulated discharges because they are made to move large amounts of
earth and will typically relocate the dredged material beyond the place
of initial removal. We also recognize, however, that the activities
addressed in today's rule will not always result in a discharge, and
therefore, the final rule allows the necessary flexibility for
considering project-specific information that only incidental fallback
results.
Other commenters maintained that the presumption was not
reasonable, arguing that it was at odds with controlling legal
precedent. These commenters argued that to establish a rebuttable
presumption, case law requires us to have a record demonstrating that
it is more likely than not that the presumed fact exists. See e.g.,
National Mining Association v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999).
Some commenters asserted that the presumption was unreasonable because
it did not clearly articulate the scope of what is not regulated (i.e.,
what is incidental fallback). Some commenters also maintained that the
presumption was not reasonable because it would require a permit for
all of the types of activities addressed in the rule, and would thus
regulate dredging itself rather than the discharges that result. Some
asserted that because the presumption is not always true, it is not
reasonable. Other commenters asserted that the recognition in the
proposed rule's preamble that specialized and sophisticated techniques
and machinery may limit redeposits to incidental fallback undercuts the
proposed rule's presumption. One commenter likened the presumption in
the proposed rule to the agencies presuming that all land was
jurisdictional under section 404 of the CWA and then taking enforcement
action based on that presumption without establishing that the agencies
had jurisdiction. Another comment asserted that no technical analysis
was offered to support the proposed rule's presumption.
As previously discussed in section II C of today's preamble, the
final rule does not establish a rebuttable presumption. Therefore,
commenters' arguments about not meeting the legal prerequisites for
establishing a rebuttable presumption in the legal sense are not
relevant to the final rule. Instead of a rebuttable presumption, the
rule states our view that we will regard the use of mechanized earth-
moving equipment to conduct landclearing, ditching, channelization, in-
stream mining or other earth-moving activity in waters of the U.S. as
resulting in a discharge of dredged material unless project-specific
evidence shows that the activity results in only incidental
[[Page 4561]]
fallback. In addition, in response to comments that we received, we
have included in the final rule a descriptive definition of
``incidental fallback.''
As today's rule expressly provides that it does not shift any
burden in CWA judicial or administrative proceedings, we do not agree
that the rule has the effect of simply presuming jurisdiction, as the
burden to show that a regulable discharge occurs has not been altered.
Further, because we do not use a rebuttable presumption in today's
final rule, the legal standards under the caselaw for judging the
adequacy of an agency's record to justify a rebuttable presumption are
not relevant to this rule. We also do not agree that today's rule
results in a permit being required in every circumstance in which the
activities listed occur. Today's rule continues to expressly provide
that incidental fallback is not a regulable discharge, and also
provides for project-specific consideration of whether only incidental
fallback results from the activities addressed by the rule. We believe
that the modified regulatory language provides a measure of regulatory
certainty as to the types of activities that are likely to result in a
regulable discharge, while preserving necessary flexibility to address
the specific circumstances of a given project.
We also believe that allowing for project-specific information that
the activity is conducted in a manner that results in only incidental
fallback is indicative of that flexibility, rather than undercutting
the validity of our general view. With respect to consistency with
legal precedent and the CWA, we have addressed such issues elsewhere in
the preamble, primarily in sections II C and III A.
Today's regulation is based on the nature of earth-moving equipment
(i.e., machines that move the earth). Contrary to the assertion that no
technical analysis was provided, the preamble to the proposed rule, as
well as materials in the rule's record, do provide technical
information supporting the reasonableness of the final rule. We also
believe the rule is reasonable in that it helps ensure that activities
resulting in discharges meant to be addressed by the CWA are in fact
regulated. Moreover, the rule's explicit opportunity to consider
project-specific evidence to the contrary, and express recognition that
it does not shift any burden in any administrative or judicial
proceeding under the CWA, ensures that activities outside our
jurisdiction are not regulated.
One commenter contended that excavation activities result in
environmental benefits, providing an example that the size of certain
unnamed drainages underwent a net expansion as the result of excavation
at mine sites. Another comment asserted that the presumption was not
reasonable because during the interval between the court decision and
the publication of the proposed rule, the Corps, according to the
commenter, had implicitly or explicitly acknowledged circumstances
where excavation activities could be undertaken without a discharge
requiring a section 404 permit.
Whether or not one agrees that certain excavation activities result
in a net expansion of waters or net benefit to the aquatic environment
does not bear upon the issue of whether such activities produce
regulable discharges. Many restoration activities and other
environmentally beneficial efforts necessitate discharges into waters
of the U.S., a number of which are provided authorization under
Nationwide General Permits.
A number of commenters requested clarification of, or objected to,
the rebuttal process due to vagueness. These commenters sought further
specifics as to the type of information that could be used to rebut the
presumption and the standard of proof. In addition, they expressed
concern that it would be difficult or impractical to rebut the
presumption contained in the proposed rule. These commenters were
concerned that the proposal placed an unfair burden on the landowner by
requiring the applicant to prove a standardless proposition or not
rebut the presumption and risk enforcement. These commenters believed
it would be difficult to present a valid case because the proposal did
not establish a set of clearly defined criteria for rebutting the
presumption of discharge; some said that the rule seemed to require
that a party undertake the activity with its inherent enforcement risks
in order to provide evidence to rebut the presumption; others argued
that the description of a regulable discharge is so broad that the
presumption can not be rebutted. Others expressed concern that any
effort to rebut the presumption would be extremely time-consuming,
confusing, technically challenging and cost prohibitive. Other
commenters expressed the view that the rule unfairly placed the burden
of determining jurisdiction on the regulated community, a burden that
should be borne by the government instead.
As noted in the proposed rule preamble, the proposal expressed:
* * * our expectation that, absent a demonstration to the
contrary, the activities addressed in the proposed rule typically
will result in more than incidental fallback and thus result in
regulable redeposits of dredged material. It would not, however,
establish a new formal process or new record keeping requirements,
and Section 404 permitting and application requirements would
continue to apply only to regulable discharges and not to incidental
fallback.
65 FR 50113.
The proposal would not have required project proponents or
landowners to ``prove a negative'' or shift the burden of proof as to
CWA jurisdiction from the government to the regulated community and the
final rule clarifies our intent in this regard. As we have discussed in
section II C of today's preamble, in light of comments received, we
have revised the rule to make clear that it does not shift the burden
of showing that a regulable discharge has occurred under the CWA, and
also have included a descriptive definition of non-regulable incidental
fallback in order to help provide a standard against which to judge
regulable versus non-regulable redeposits. As a result, we do not
believe the final rule somehow establishes or requires a time-consuming
or expensive rebuttal process. Instead, it provides clarification to
those who have unwittingly misread the NMA case to preclude regulation
of all removal activities in waters of the United States. Issues
related to the types of relevant information we will consider in
determining if a regulable discharge has occurred are addressed in
section II C of today's preamble.
Other commenters felt the proposed rule's presumption was
unreasonable in light of the exclusion provided for ``normal dredging
operations.'' As in the original August 25, 1993, Tulloch Rule, several
commenters suggested that all discharges of dredged material should be
regulated, stating that it does not seem reasonable or consistent to
exclude discharges incidental to ``normal dredging operations'' for
navigation, while regulating excavation for non-navigation purposes.
In response we note that today's rule does not modify in any
respect the provisions of the 1993 rule related to normal dredging
operations, and we have not reopened any of these provisions in this
rulemaking. The rationale for the normal dredging operation provisions
was explained in the August 25, 1993 rulemaking (58 FR 45025-45026),
and interested readers are referred to that discussion for further
details.
[[Page 4562]]
C. Reasonableness of rule as to specific activities
Commenters cited a number of circumstances or scenarios that may or
may not result in a regulable discharge. As a general matter, there was
not sufficient information provided in the comments to provide a case-
specific response. The discussion below is not intended to be
definitive, as an actual decision about whether a particular activity
results in a discharge needs to be made on a case-by-case basis
considering actual evidence of the particular activity in question.
Literature citations and other information that such commenters
provided have been added to the record for the rule.
We received several comments regarding mining practices. One stated
that for mining-related activities, they were unable to name examples
of any equipment used that was not included on the proposed rule's
referenced list as falling within the rebuttable presumption.
Therefore, according to the commenter, the presumption had the effect
of precluding ``per se'' all mining related activities performed with
mechanized equipment in jurisdictional areas in contravention of the
AMC and NMA decisions. Another asserted that under the proposed
definition, most placer mines, suction dredges, and exploration
trenches would be required to obtain an individual section 404 permit.
As discussed in section II C of today's preamble, the final rule does
not establish a rebuttable presumption, and provides for consideration
of project-specific information to determine if a discharge results. We
thus do not believe that today's rule has the effect of ``per se''
precluding or regulating all activities conducted with mining equipment
in waters of the U.S. For example, as noted in section III A 1 a of
today's preamble, some suction dredging can be conducted in such a way
as not to produce a regulable discharge.
Several commenters raised scenarios involving in-stream mining or
other mechanized activities in dry, intermittent streambeds,
particularly of the kind that may occur in arid regions of the country.
One stated that excavation activities in arid regions would not result
in the ``parade of horribles'' that the agencies presume result from
excavation. One commenter put forward two specific scenarios of in-
stream mining activities that he believed were not covered as regulated
discharges. They were the use of a front-end loader to scoop out
material from a dry, intermittent stream up against the stream bank or
other face, and the use of a scraper to move material out of the dry
stream. Some commenters contended that such activities are conducted
with little or no sediment redeposition, stating they do not involve
the uprooting of vegetation and are undertaken when the stream bed is
completely dry after winter flow ends and before the threat of the
first flow in the next winter. Other comments stated that it was
necessary to recognize that the southwest is different from the east
where ``real wetlands'' exist, contending that, in the west, wetlands
for the most part are only wetlands because the government says they
are. The commenters believed that one rule should not apply to all, and
that the vast majority of the drainages located in the southwest are in
arid climates, which in many instances involve nothing more than
isolated ephemeral streams, or dry washes with very little if any
aquatic resources and with flows that occur only in response to
infrequent rains and effluent from stormwater discharge. Still other
comments focused on flood control maintenance activities where they
asserted the disturbances are minimal and include only minor water
quality impacts such as deposit and removal of sediments to maintain
flow conveyance. They stated their activities are typically performed
in a dry riverbed or channel, where there are no aquatic resources, the
material in the channel is primarily sand and gravel, and the potential
for downstream impacts are minimal.
We acknowledge that the presence or absence of water in a
jurisdictional stream or other jurisdictional area is a project-
specific fact that would need to be considered in deciding whether an
activity results in only incidental fallback or a regulable discharge.
While we agree that the presence or absence of water is relevant to
determining whether a discharge has occurred due to suspension and
transport of material to a new location, regulable discharges can still
occur in a dry streambed when mechanized equipment is used to push
materials from one area of jurisdictional water to another. Discharges
can also occur when material is deposited in such a way as to cause
materials to slide back into the jurisdictional area.
Several commenters contended that by establishing a rebuttable
presumption that mechanized landclearing produces more than incidental
fallback, the proposed rule would have resulted in undue hardship by
subjecting them to environmental review. They believe that the stated
rationale for the agencies' proposed presumption with respect to
mechanized landclearing fails to consider the clearly ``incidental''
nature of any soil movement associated with such activity. Another
commenter maintained that landclearing activities, such as grubbing and
raking with a small D-7 Caterpillar bulldozer, along with a K-G blade
and a root rake, can be conducted so that the only soil displaced
during a landclearing would be that which would ``stick to and
sometimes fall off the tracks of the bulldozer,'' or would be ``scraped
off the blade,'' or would be ``pushed up by [a] stump or stuck to [a]
stump or its root mass as it was knocked over and pulled from the
ground.'' This commenter also maintained that the agencies were well
aware of such landclearing techniques and should acknowledge that they
do not produce regulable discharges.
In response, we first note that the final rule has eliminated the
use of a rebuttable presumption. As stated elsewhere in today's
preamble, the use of mechanized earth-moving equipment to conduct
landclearing, because it typically involves movement of soils around a
site, would typically involve more than incidental fallback. It is
difficult to give generalized conclusions regarding specific
subcategories of activities or practices, particularly where the
description of the activities lacks detail. Whether a particular
activity results in a discharge, or only incidental fallback,
necessarily depends upon the particular circumstances of how that
activity is conducted, and as a result, today's final rule allows for
project-specific considerations. We also note that in the NAHB Motion
Decision, the Court declined to decide, on a general level, that the
displacing of soils, sediments, debris, or vegetation incidental to the
use of root rakes and excavating root systems or knocking down or
uplifting trees and stumps to be non-regulable under section 404. NAHB
Motion Decision at 15. Whether or not these types of activities are
conducted so as to avoid a regulable discharge depends upon project-
specific considerations, which today's final rule provides for. See
also section III A 1 of today's preamble for further discussion of
certain activities, such as use of K-G blades.
Numerous commenters suggested that a backhoe was the classic
example of how digging could be done with no more than incidental
fallback. They believed that one-motion excavation, such as excavation
with a conventional hydraulic-armed bucket (e.g., trackhoe or backhoe),
can be easily accomplished with only incidental fallback resulting.
They contended that the small amount of material that falls from the
bucket is,
[[Page 4563]]
by definition, incidental to the operation of the bucket and the
excavation and that no dredged material is introduced into the
jurisdictional area, meaning a regulable discharge has not occurred. In
summary, they believed that the proposed rule was too inclusive and
should explicitly exclude certain types of excavation from the
presumption of discharge.
The preamble to today's rule clearly recognizes that there are
situations where, due to the nature of the equipment used and its
method of operation, a redeposit may be limited to ``incidental
fallback.'' As emphasized repeatedly, today's rule would continue to
exclude incidental fallback from regulation under section 404. We note,
however, that backhoes by their nature (i.e., the size of the
excavation machinery) are typically used to move more than small
volumes of material in the course of excavation, and are thus likely to
result in redeposits that exceed the definition of incidental fallback
(i.e., ``small volumes of dredged material * * * [that] * * * falls
back to substantially the same place as the initial removal.'')
However, the rule allows for project-specific evaluation of whether
only incidental fallback occurs, and the definition of incidental
fallback includes as an example ``the back-spill that comes off a
bucket when such small volume of soil or dirt falls into substantially
the same place from which it was initially removed.''
One commenter suggested that discing is not excavation, since there
is no removal, but merely minor displacement. They believed that the
proposed rulemaking suggests that disking results in more than
incidental fallback, and they question how there can be any fallback of
any nature where there is no excavation. Another commenter challenged
the reasonableness of the presumption, because not all mechanized
activities first ``remove'' material from waters of the U.S. and
therefore such activities could not result in material being
redeposited.
We acknowledge that there are mechanized activities that do not
first excavate or remove material and therefore redepositional
discharges do not occur (e.g., the driving of piles in many
circumstances). However, we also note that by pushing or redistributing
soil, activities other than excavation can result in the addition of
dredged material to a new location, and hence produce a regulable
discharge.
Several commenters discussed the routine operation and maintenance
of numerous existing flood control channels, levees and detention
basins. They stated that existing facilities are vital to tax-paying
citizens since they are critically needed to protect their health and
safety. They also stated the intent of a flood control excavation
project is to maintain hydraulic capacity and entirely remove
accumulated sediment and debris from the facility, restoring it to its
original lines and grades. They contended that the implementation of
existing maintenance-related Best Management Practices addresses
negative impacts of this work. Additionally they asserted that, under
current regulation, no permit is required for excavation, the work can
proceed in a timely manner, and costly submittals are not needed. They
also contended that their ``finished products'' enhance, protect and
maintain water quality. The commenters were concerned that all of their
excavation projects under the proposed rule would be presumed to
include an ``addition'' of pollutants.
One commenter, on behalf of a water authority, stated that they
frequently engage in a number of activities subject to section 404 of
the CWA, and which typically fall under the Nationwide permit program.
Such activities include the construction of erosion control structures,
channelization for temporary water diversions during construction of
facilities, and building pipelines that infrequently occur in waters of
the U.S. They stated that their efforts to enhance and restore wetlands
often require mechanized landclearing to remove non-native, invasive
vegetation. They asserted that, if implemented, the proposed revision
would inappropriately deem these activities regulable discharges, when
in fact they do not involve discharges beyond incidental fallback.
Another commenter stated that they have restored several lakes, ponds,
and sediment in streams with the one-step removal process under the
Tulloch Rule. They utilize specialized low ground pressure equipment,
to provide one step removal of accumulated sediments in a low impact
manner to restore lakes, ponds, and streams. They also assert that they
are very conscientious to prevent any fall back or otherwise discharges
of materials into any waters of the U.S. and that they have very
successfully restored many acres of U.S. waters, restoring aquatic
habitat and navigability, and property values throughout their
particular region of the U.S. They believed a distinction needs to be
made between restoration activities to remove sediment from smothered
aquatic habitats and draining jurisdictional areas to convert waters of
the U.S. to upland uses.
In response, we note that some of the routine discharges from
operation and maintenance of existing flood control channels, levees
and detention basins are exempt from regulation under CWA section
404(f), and the exemption is not affected by this rule. Also, Corps
Nationwide and Regional General Permits authorize some of the routine
operation and maintenance work. We also note today's rule does not
establish new requirements or procedures, and thus does not necessitate
costly new submittals. Additionally, today's rule no longer establishes
a rebuttable presumption, and project-specific information will be
considered in determining whether an activity results in more than
incidental fallback. If, as some of these commenters assert, their
activities do not result in more than incidental fallback, then they
would not be regulated under the CWA, nor are they currently regulated.
We also note that because the determination of jurisdiction rests on
the presence of a discharge of dredged material, which is not dependent
upon either the effects of the activity or the intent of the person,
the fact that an activity may or may not be beneficial, or is
undertaken with the intent to remove material, does not form the basis
for determining jurisdiction.
One commenter was concerned that the proposed rule's presumption
would seriously impede the ability of water users to maintain their
diversion structures, irrigation ditches, retaining ponds and
reservoirs. In light of the fact that the term ``waters of the U.S.''
determines the extent of the Corps jurisdiction under the CWA, they
believed that the proposed rule would subject even the most routine
maintenance of ditches, headgates and off-channel storage facilities to
the permitting process and that resulting delays would hamper the
efficient operation of water delivery systems, and jeopardize safety as
well.
Today's final rule does not establish a rebuttable presumption, and
as discussed in section II C and III A of today's preamble, would not
result in the regulation of incidental fallback. We also note that
because the determination of jurisdiction rests on the presence of a
discharge of dredged material, which is not dependent upon the effects
of the activity, the fact that an activity may or may not be beneficial
does not form the basis for determining jurisdiction.
D. Regulation on Basis of Toxics/Pollutant Releases
A number of commenters from the science profession provided
extensive
[[Page 4564]]
discussion regarding the discharge of pollutants. These scientists
contended that mechanized excavation and drainage activities in
wetlands, rivers and streams almost always cause the discharge of
pollutants into waters of the U.S., and frequently result in severely
harmful environmental effects. They noted that it is well-established
in the peer-reviewed scientific literature that wetlands and many parts
of river and stream beds act as natural sinks, collecting sediment,
nutrients, heavy metals (e.g. lead, mercury, cadmium, zinc) toxic
organic compounds (e.g., polycyclic aromatic hydrocarbons-PAHs,
polychlorinated biphenyls-PCBs) and other pollutants which enter
wetlands through polluted runoff, direct discharges, and atmospheric
deposition. Moreover, they provided citations which describe other
characteristics of wetlands and water bottoms that also play an
important role in storing precipitated metals and other pollutants. For
instance, over time, fresh layers of sediment added to wetland and
river and stream beds can gradually bury and sequester trace metals and
toxics. Vegetation also helps soils immobilize toxins and heavy metals
by attenuating flow of surface waters and stabilizing the substrate,
allowing metal-contaminated suspended particles to settle into
sediment.
Furthermore, these commenters cited scientific literature which
illustrates that wetland soils and river and stream beds immobilize
toxins and heavy metals and other pollutants. Briefly summarized, these
indicate that anaerobic conditions occur when wetland, river, and
stream soils are saturated by water for a sufficient length of time;
microbial decomposition of organic matter in the sediment produces
anaerobic conditions. The anaerobic soil environment, with the
accompanying neutral pH levels and presence of organic matter in the
sediment, triggers different chemical and microbial processes in the
soils. These characteristic conditions of wetland, river, and stream
soils result in the precipitation of trace and toxic metals as
inorganic compounds, or complexed with large molecular-weight organic
material--effectively immobilizing these compounds.
These commenters maintained, and provided citations illustrating,
that when a wetland is ditched or drained, or a riverbed excavated,
channelized or dredged, mechanized activities dislodge some of the
sediments and resuspend them in the water column from both the bottom
and the sides of the ditch or other waterbody. Water draining from
ditched or excavated wetlands carries suspended sediments down ditches
to receiving waters; similar resuspension and downstream movement occur
when river and stream bottoms are channelized. They furthermore
provided supporting literature from scientific journals documenting
that when wetlands are ditched or drained or rivers and streams
excavated, some pollutants move into the water column. As described,
when wetlands soils are exposed to air, the anaerobic, neutral pH
conditions that promoted toxins and heavy metals to precipitate-out can
shift to aerobic conditions, and the soil chemistry is transformed by
the oxidizing environment and possible shift in pH. The mobility of
metals bound in sediment is generally determined by pH, oxidation-
reduction conditions, and organic complexation--thus, precipitates may
begin to dissolve and become available for transport when soils are
exposed to air. Contaminated sediment resuspension does not usually
result in a pH change in rivers; but there, as in wetlands, microbial
action can release such pollutants as trace elements during the
reoxidation of anoxic sediments that subsequently flow into drainage
ditches and into receiving waters.
Finally, commenters from the science community pointed out that
turbulence prolongs the suspension of sediment and contaminants in the
water column, so moving water (e.g., drainage ditches) retains
suspended materials longer than standing water. In general, organic
chemicals and toxic metals are more likely to be attached to smaller,
lighter particles, which also are more likely to remain suspended in
the water column. The commenters noted that smaller particles may also
give up organic chemicals more efficiently than larger particles. Thus,
they assert, exposing contaminated sediment to the water column causes
some dissolution of pollutants, while the direct discharge of sediment
into the water during dredging accelerates the release of contaminants.
The agencies thank these commenters for their detailed discussion
of current scientific literature, which we have included in the
administrative record. We agree that the evidence presented points to
the harmful environmental effects that can be associated with
redeposits of dredged material incidental to excavation activity within
a particular water of the United States, even those redposits occurring
in close proximity the point of initial removal. To the extent
commenters believe that we should determine the scope of our
jurisdiction based on such environmental effects, however, we decline
to do so. As stated previously, today's rule does not adopt an effect-
based test to determining whether a redeposit is regulated, but instead
defines jurisdiction based on the definition of ``discharge of a
pollutant'' in the Act and relevant caselaw. We have chosen to define
our jurisdiction based not on the effects of the discharge, but on its
physical characteristics--i.e., whether the amount and location of the
redeposit renders it incidental fallback or a regulated discharge.
Nonetheless, the evidence reviewed in these comments points to serious
environmental concerns that can be associated with redeposits other
than incidental fallback (which are regulated under today's rule), and
support the agencies' view that it would not be appropriate, as
suggested by some commenters, to establish quantitative volume or other
``significance'' thresholds before asserting jurisdiction over such
redeposits.
One technical commenter contended that the likelihood of toxicant
release and mobility is many times greater for navigational dredging
than it is for most other excavation activities, especially in
wetlands. This commenter asserted that the primary reason for this is
that the vast majority of excavation projects that would be subject to
the proposed rule do not have toxic substances in toxic amounts present
in the natural soils, but many navigational dredging projects in
commercial ports do. The commenter stated that while it is true that
some contaminants may be more mobile in an oxidized than reduced state,
the conclusion that contaminants will be released from normal
excavation project activities is without technical merit. The commenter
further recommended that since the effects of navigational dredging
were determined to be acceptable, the results of those same studies
should be used to establish what is more than incidental fallback. As
noted in today's preamble, the potential for release and distribution
of pollutants contained in dredged material is a factor that would be
considered in determining if a regulable discharge of dredged material
beyond the place of initial removal results. We do not agree with the
apparent suggestion that wetlands soils are necessarily in a pristine
or natural state. As discussed in the proposed rule's preamble,
wetlands can act as sinks for pollutants, and sequester contaminants.
In addition, we note that the 404 program applies to waters of the
U.S., which include not just wetlands, but rivers, lakes, harbors and
the like as well. Finally, we do not agree that the environmental
effects of harbor dredging should somehow be
[[Page 4565]]
used to establish what is more than incidental fallback. As previously
noted in section III A 1 d of today's preamble and also discussed
below, we do not believe that use of an effects-based test for
jurisdiction is appropriate in light of the AMC and NMA decisions.
Other commenters strongly opposed the idea that the transport of
dredged material downstream or the release of pollutants as a result of
excavation activities should be treated as a discharge. Some of these
commenters asserted that consideration of impacts on water quality
resulted in the use of an ``effects-based test'' to establish
jurisdiction, which they indicated was not allowable under the NMA
decision. Others expressed the view that such an interpretation would
result in regulation of incidental fallback and thus not be allowable.
These comments refer to the discussion in the proposed rule's
preamble regarding the information that we would use to evaluate
whether a regulable discharge has occurred. Among other things, that
preamble stated:
In evaluating [whether regulable discharges have occurred], the
permitting authority will consider the nature of the equipment and
its method of operation and whether redeposited material is
suspended in the water column so as to release contaminants or
increase turbidity, as well as whether downstream transportation and
relocation of redeposited dredged material results.
65 Fed. Reg. at 50113.
The agencies continue to believe that when determining whether a
discharge has occurred, it is relevant and appropriate to consider
whether an activity results in the release and distribution of
sequestered pollutants into the water column or in suspended material
being carried away from the place of removal before settling out. In
such cases, a pollutant is being added to a new location. This is not
the use of an ``effects-based test'' to establish the existence of a
discharge, but rather recognizes that when pollutants are released or
relocated as a result of the use of earth-moving equipment, this can
result in the ``addition'' of a ``pollutant'' from a ``point source''
to ``waters of the U.S.,'' and thus constitute a regulable discharge.
In Deaton, the Fourth Circuit recognized that one of the reasons
sidecasting should be treated as a regulable discharge is that: ``When
a wetland is dredged, however, and the dredged spoil is redeposited in
the water or wetland, pollutants that had been trapped may be suddenly
released.'' Deaton, 209 F.3d at 336. The NMA court indicated that
resuspension should not be used to regulate excavation and dredging
activities that result only in incidental fallback. 145 F.3d at 1407.
We would consider the nature and amount of any resuspension and
transport in determining whether a regulable discharge occurred.
We also do not agree that allowing for consideration of the release
of pollutants contained in the dredged material into the water column
and the transport of suspended material downstream would necessarily
result in the regulation of incidental fallback. These are relevant
factors in determining if material has been moved to a new location,
and consequently resulted in the addition of a pollutant to a new area.
However, in evaluating these considerations, we would take into account
the volume and location of redeposited material so as not to regulate
incidental fallback.
A number of other commenters requested that the proposed rule be
strengthened so as to require a permit for excavation and
channelization activities which release even small amounts of
pollutants (such as heavy metals or PCBs) into the water column or
which would result in their transport down stream. Under today's rule,
such pollutants (which constitute dredged material by virtue of having
been dredged or excavated from waters of the U.S.) (see e.g., 40 CFR
232.2 (defining dredged material as ``material that is dredged or
excavated from waters of the U.S.)) would be regulated if resuspended
and transported to a location beyond the place of initial removal in
such volume so as to constitute other than incidental fallback. We
believe that is the appropriate test for evaluating any redeposit of
dredged material, for reasons stated previously. As explained elsewhere
in today's preamble, we expect that the use of mechanized earth-moving
equipment in waters of the U.S. will generally result in a regulable
discharge. However, we do not believe that it is appropriate to per se
treat the redeposits described by these comments as a discharge of
dredged material, as consideration needs to be given to the factors of
each particular case in making a regulatory decision.
E. Need for Brightline Test
Many commenters expressed concern that the proposal did not provide
a clear definition of what constitutes a regulable discharge or
incidental fallback. Many of these commenters were concerned that
without clear standards that the regulated community or the regulators
can use in order to determine when an activity is subject to federal
jurisdiction, the proposal would have resulted in a system that was
arbitrary and uncertain and was too vague in light of the CWA's civil
and criminal penalty scheme. Some of these commenters expressed the
view that without clear standards the rule would be void for vagueness,
not meet the due process standard of providing fair warning of what
activities are regulated, or violate the Constitution's non-delegation
doctrine as construed in American Trucking Association v. Browner, 175
F.3d 1027 (D.C. Cir. 1999). Commenters also expressed concern that this
would result in uncertainty and the need for subjective case-by-case
determinations. Many of those concerned with the lack of a definition
requested the proposal be withdrawn and re-proposed to include such a
provision; some of these also indicated that guidance on what
constitutes a regulable discharge versus incidental fallback needs to
take the form of a rule, and should not be attempted through informal
guidance.
Our May 10, 1999, rulemaking amended the substantive aspects of the
definition of ``discharge of dredged material'' to provide that we no
longer would regulate ``any'' redeposit, and that ``incidental
fallback'' was not subject to regulation. That continues to be the case
under today's final rule. As noted in section II B of today's preamble,
the May 10 rulemaking was considered by the NMA court in its September
13, 2000, opinion and found to be in compliance with the AMC and NMA
opinions and associated injunction. NAHB Motion Decision at 10. Today's
rule does not alter the substantive regulatory definition of what
constitutes a discharge. Rather than create arbitrary or unclear
standards as some commenters have claimed, today's rule provides
additional clarification for both industry and the regulatory agencies
as to what types of activities are likely to result in regulable
discharges.
In addition, the preamble to the proposed rule did provide guidance
as to the agencies' views on what constitutes a regulable redeposit
versus incidental fallback. For example, that preamble explained that
as the NMA court and other judicial decisions recognize, the redeposit
of dredged material ``some distance'' from the point of removal (see
NMA, 145 F.3d at 1407) can be a regulable discharge. Similarly, the
preamble noted the language from the NMA opinion describing what
constitutes incidental fallback: involving the return of ``. . .
dredged material virtually to the spot from which it came'' (145 F.3d
at 1403), as well as occurring ``when redeposit takes
[[Page 4566]]
place in substantially the same spot as the initial removal.'' 145 F.3d
at 1401). Moreover, as explained in section II C of today's preamble,
in response to comments on the need for a definition of incidental
fallback, we have modified the final rule to include a descriptive
definition consistent with relevant case law. Since the definition of
incidental fallback reflects discussion in the AMC and NMA opinions of
incidental fallback, and those cases were discussed in the preamble to
the proposed rule, we do not believe that this revision to our proposal
necessitates reproposal.
A number of commenters requested that the agencies adopt a
``brightline test'' to distinguish between incidental fallback on the
one hand and regulable discharges on the other. Some of the commenters
opposed to the proposed rule expressed the view that the proposal was
contrary to the NMA decision and the preamble to the agencies' earlier
May 10, 1999, rulemaking, in that it did not provide a sufficiently
reasoned or clear attempt to draw a line between incidental fallback
and regulable redeposits. We believe that the descriptive definition of
incidental fallback in today's rule will provide greater certainty, but
do not agree that the court in NMA mandated that we take any particular
approach to defining our regulatory jurisdiction. NMA only stated that
``a reasoned attempt by the agencies to draw such a line would merit
considerable deference.'' 145 F.2d at 1405 (footnote omitted). As
discussed previously, a descriptive definition of incidental fallback
has been added to today's final rule. We do not believe that a more
detailed definition is appropriate at this time.
Some comments suggested drawing a bright line on the basis of
measurable criteria such as cubic yards of dredged material, total
acres of land disturbed, gallons of water removed, tons of sediment
disposed, or similar measures. Although consideration of factors such
as the volume and amount of the material and nature and distance of
relocation are relevant in determining whether incidental fallback or a
regulable discharge occurs, these factors are inter-twined with one
another, and do not lend themselves to a segregable hard and fast
quantification of each specific factor (or combination of factors) so
as to give rise to a hard and fast test. Moreover, we are not aware of,
nor have commenters suggested, a sound technical or legal basis on
which to establish brightline quantifiable limits on such factors. For
example, we do not believe it is technically sound or feasible to
simply establish universally applicable cut-off points for amount or
distance.
Another commenter requested a brightline test be established by
having the rule state a presumption against discharge for incidental
soil movement associated with mechanized landclearing and excavation
activities. More specifically, this commenter recommended that the rule
provide that no discharge results from incidental soil movement
associated with mechanized landclearing, ditching, channelization,
draining, in-stream mining, or other mechanized excavation activity
such as when (1) excavated soils and sediments fall from a bucket,
blade or other implement back to the same general area from which it
was removed; (2) surface soils, sediments, debris or vegetation are
scraped, displaced or penetrated incidental to the use of machinery;
(3) excavation machinery is dragged through soils or sediments; or (4)
vegetative root systems are exposed, or trees and stumps are knocked
down or uplifted, incidental to the use of machinery. The commenter's
recommendation went on to provide that otherwise the Agency may
demonstrate on a case by case basis that mechanized excavation activity
in waters of the U.S. results in the discharge of dredged material.
We do not agree with this suggestion for a number of reasons.
First, we believe a test of the ``same general area from which it was
removed'' for determining whether incidental fallback has occurred
could create the impression that material redeposited in virtually any
part of the work area would not be a discharge, which we believe would
be too broad of a test. As both NMA and Deaton recognize, for example,
placement of dredged material in as close a proximity to the excavation
point as the side of a ditch can result in a regulable redeposit. We
thus believe a formulation based upon use of a ``same general area
test'' to be too expansive to properly convey that short-distance
relocations can result in regulable discharges. As discussed in section
II C of today's preamble, we do believe a fair and objective reading of
the AMC and NMA cases and the NAHB Motion Decision, as well as other
relevant redeposit cases discussed in that section of the preamble, is
that incidental fallback occurs when redeposit takes place in
``substantially'' the same place as the initial removal, and have so
provided in today's final rule.
Moreover, the examples provided by the commenter (e.g., dragging of
equipment, scraping or displacement of soil or vegetation, uplifting of
tree roots) often can result in the relocation and redeposit in waters
of the U.S. of substantial volumes of material over considerable
distances so as to constitute more than incidental fallback under the
AMC and NMA opinions. The approach suggested by this commenter reflects
perhaps a different conception of what constitutes incidental fallback
than is contained in today's rule. If incidental fallback were to
include any material incidentally redeposited in the course of
mechanized activity, the establishment of a presumption of exclusion of
the activities listed by the commenter might follow as reasonable. As
discussed immediately above in this section, however, we believe that
this formulation is not warranted and would be too broad. We believe
that we have properly described incidental fallback in today's rule,
and that it would not be reasonable to assume the activities listed by
the commenter only cause incidental fallback. In fact, as today's rule
clarifies, we regard such activities as typically resulting in more
than incidental fallback, absent project-specific information to the
contrary. However, there is substantial flexibility under today's rule
to consider the types of activities listed by the commenter and
determine on a case-by-case basis whether a specific project is subject
to regulation.
Other commenters recommended that while the term ``discharge''
should not encompass the fallback of material precisely to the same
spot during excavation activities, when the movement of the dredged
material raises new environmental concerns (such as release of
pollutants into the water column or more ready erosion of the material
and movement downstream), this relocation should be treated as a
discharge. These and other commenters also requested that the rule make
clear that a permit is required for excavation and channelization
activities which release even small amounts of pollutants (such as
heavy metals or PCBs) into the water column or which would result in
their transport downstream. For reasons stated previously, we do not
agree that whether an activity results in new environmental concerns
should be used as the basis for establishing jurisdiction. As discussed
in both the proposed rule's and today's preamble, the nature and amount
of transport and resettling of excavated material downstream from the
area of removal, or release of pollutants previously bound up in
sediment beyond the place of initial removal, are relevant factors to
consider in determining if movement and relocation other than
incidental fallback
[[Page 4567]]
has occurred. Thus, these factors are relevant to determining whether a
redeposit other than incidental fallback occurs, and are not used to
assert jurisdiction on the basis of environmental effects.
Other comments urged that the rule identify certain activities as
always requiring a permit or consisting of a regulable discharge.
Examples mentioned in such comments included sidecasting, backfilling,
and stockpiling; those supporting strengthening of the proposal also
included bulldozing, grading, and leveling as always requiring a
section 404 permit. As previously discussed in section II C of today's
preamble and the preamble to the proposed rule, case law has found a
number of activities (e.g., sidecasting, backfilling of trenches) to be
regulable discharges under section 404. We believe the preamble
discussion on these points to be sufficiently clear and that inclusion
of such specific examples in the regulation itself is unnecessary. To
the extent grading and leveling involve redistribution of soils in
waters of the U.S. around a site to create a level area, such
activities would appear to typically involve not only a discharge of
dredged material (through the pushing of dredged material from one
location to another) but also possibly fill material (by filling low
areas). See Avoyelles (movement of soils to depressed areas as
discharge of fill material). In any event, case law on redeposit issues
continues to evolve over time. Accordingly, we do not believe the
listing of specific examples of discharges in the regulation itself to
be appropriate.
F. Clarity of Proposal and Implementation Issues
1. Clarity
A number of commenters sought clarification with regard to section
404(f), as they were concerned or confused by the references to section
404(f) in the preamble to the proposed rule. Most of these commenters
interpreted the preamble language to indicate that the rule would
establish that certain silviculture or farming activities described in
section 404(f) as being exempt from permit requirements would now be
subject to regulation, particularly because these activities may
involve the types of machinery and actions referenced in the proposal.
We regret that the references to section 404(f) in the preamble may
have caused confusion regarding the relationship of section 404(f) to
the rulemaking and emphasize that today's rule does not change the
interpretation or use of the exemptions in any manner. Today's rule
concerns the fundamental issue of what activities result in a discharge
that is regulated under section 404. The section 404(f) exemptions
describe those activities that, although resulting in a discharge, do
not require a permit if they are conducted consistent with that
provision. Activities covered by section 404(f), including
silviculture, ranching, and agriculture, involving the use of equipment
and methods such as those described in the rulemaking remain exempt,
subject to the provisions of section 404(f), and are not altered by
today's rule.
2. Comment Period
Two commenters requested an extension of the public comment period
in order to better gauge the effects of the rule on their membership.
One of these requested additional time to assess the potential impacts
of the proposal on their industry and also requested a public hearing
on the proposal. The other commenter expressed the view that the
proposal was fundamentally different from previous iterations of the
Tulloch Rule, and sought additional time in order to obtain more
information on the physical settings and the use of many types of
equipment by its membership. We believe that a 60-day comment period
was adequate time to obtain widespread and effective public comment and
that extending the public comment period or holding a public hearing is
unnecessary. In general, it appears the public understood the proposal
and was able to provide comments in a timely fashion. Of the
approximately 9,650 comments that were received, only two sought an
extension of the comment period, and only one of those requested a
hearing. In addition, those two commenters did file specific and
substantive comments within the 60-day comment period.
3. Implementation
A number of commenters raised issues associated with the
implementation of the rule, including the ability of the agencies to
effectively enforce, monitor, and budget for it, as well as the
appropriate exercise of discretion on behalf of the agencies. Several
commenters indicated that the agencies need to dedicate enough staff
and other resources necessary to effectively enforce the rule. One
commenter specifically recommended that the agencies request the
necessary funding from Congress to allow effective implementation.
Another commenter specifically mentioned the need for the agencies (or
States or local governments) to monitor activities not requiring a
permit, to determine if they were in fact not resulting in a discharge.
One of these commenters supported review and documentation of completed
projects determined a priori to not result in a discharge, to ensure
that in fact no discharge resulted. One commenter who supported the
objective of the proposed rule nonetheless recommended that we
streamline the permitting process associated with activities that may
involve incidental fallback. Another commenter specifically cited
concern that the Corps would not be able to efficiently process permits
and asserted that the processing of Nationwide General Permits is not
as efficient as the agencies contend.
We concur with the commenters who stated that it was important for
us to have adequate resources to effectively enforce, monitor, and
otherwise implement the proposed rule. Consistent with agency
priorities for aquatic resource protection and our overall missions, we
do propose budgets to adequately accomplish our CWA statutory
objectives. Effective enforcement and monitoring is an important part
of the section 404 regulatory program. We will coordinate with State
and local partners to ensure that today's rule, as well as wetlands
regulations, in general, have effective compliance. Over the last two
years, unreported Tulloch activities presented a challenge to us in
obtaining information on the extent and nature of wetlands destruction
that has occurred following the NMA decision. While many of these
challenges remain, we believe that satisfactory monitoring, in
cooperation with others, can be accomplished to adequately track the
results of today's rule. We agree that pre-project information alone
should not necessarily be the basis for concluding that an activity
results only in incidental fallback and that other measures, such as
field investigation or site visits, may be needed to assess whether an
activity has actually resulted in any regulable discharges.
The agencies' goal is to work cooperatively with the public to
ensure that their activities in the Nation's waters are fully
consistent with the requirements of the Act and its implementing
regulations, including today's rule. The Corps of Engineers is the
principal contact for the public both in the context of responding to
questions that arise prior to conducting any proposed activity in
waters of the U.S., as well as monitoring permitted and unpermitted
activities as they proceed in waters to verify compliance with permit
conditions or, in the case of unpermitted activities, to ensure that no
[[Page 4568]]
regulable discharge takes place. Consistent with its statutory
responsibilities and relevant Memoranda of Agreement between EPA and
the Corps, EPA also may serve as the lead agency in determining whether
a regulable discharge has occurred.
It is a more effective use of agency resources and more efficient
for project proponents to coordinate with the Corps before an activity
in waters of the U.S. occurs to determine whether or not the project
triggers the need for a CWA permit. We strongly recommend that anyone
proposing projects which, for example, involve earth-moving activities
using mechanized equipment such as bulldozers or backhoes contact the
Corps well in advance of the project to determine whether or not a
regulable discharge will occur. As appropriate, the Corps will also be
involved in working with the public on a project-specific basis to
monitor ongoing or completed projects which proceed without a section
404 permit through site visits, remote sensing, field investigations
and so forth to verify that no regulable discharges have occurred.
With respect to streamlining the permit process for discharges that
may involve incidental fallback, we note that neither the proposal nor
today's rule establishes new procedural or informational requirements.
In addition, we have provided additional discussion in today's preamble
(see section II C) as well as a descriptive definition of incidental
fallback in order to clarify the factors and information relevant to
making the determination of incidental fallback versus regulable
discharge. Given that case-specific evidence regarding whether an
activity results only in incidental fallback will be considered,
general authorizations based on a common set of circumstances would be
inappropriate.
We have undertaken a number of successful efforts to ensure that
activities regulated under the section 404 program are evaluated in an
efficient manner, while ensuring environmental protection. In
particular, with regard to the comment on the development and use of
Nationwide General permits, such permits have provided an efficient
process for allowing discharges with truly minimal impacts to move
forward with little regulatory review, consistent with conditions that
provide for aquatic resource protection. Despite successive annual
increases in the use of general permits over the last ten years,
processing times have remained low. Some 63,780 general permits
required a priori action on the part of the Corps in Fiscal Year 2000
(as compared with approximately 4,313 individual permits), and these
were evaluated in an average time of only 19 days.
A number of commenters addressed the issue of discretion by the
agencies in implementing today's rule. The majority of these commenters
advocated that discretion on the part of Corps Districts should be
minimized. Several commenters stressed the need for consistent
interpretation and application of the rule, citing the fact that
several State and local jurisdictions have multiple Corps Districts.
Other commenters noted that national guidance or consultation with the
Headquarters offices of the agencies should be required, particularly
if any local operating procedures for the rule are developed. One
commenter recommended that Corps field staff document all
communications with potential dischargers and submit such information
to Corps and EPA Headquarters for periodic review. One commenter
indicated that if any determination is a ``close call'' with regard to
whether or not a discharge constitutes incidental fallback, it should
be considered regulated in order to err on the side of protecting
wetlands. One commenter asked for clarification that previous
understandings with Corps Districts regarding certain ``Tulloch''
activities would remain in effect, specifically mentioning the preamble
text in the proposed rule regarding the cutting of vegetation, as well
as the use of vehicles and other ``landclearing and excavation
practices that have been deemed to fall within the exclusions . . .
under the Tulloch Rule.'' Another commenter provided a specific example
of guidance provided by a District that the commenter asserted ran
counter to the agencies interpretation of the NMA decision: that
entities ``may engage in instream mining and dredging if the intent of
the work is to create a discharge of dredged material that results only
in incidental fallback.''
We concur with those commenters that advocate consistent
implementation of today's rule across Corps Districts, but also
recognize that the case-specific nature of incidental fallback
determinations necessitates some element of discretion. We have
developed guidance on program implementation in light of the AMC and
NMA decisions (issued on April 11, 1997, and updated on July 10, 1998),
as well as provided further guidance in the May 10, 1999, rulemaking
and today's rulemaking action. As additional issues are raised in the
application of today's rule that lend themselves to additional
guidance, we will provide such guidance. Moreover, to the extent that
regional circumstances allow regional guidance to be provided on
circumstances common to a particular part of the country, we will
provide that as well. In the preparation of any regional guidance and
in the consideration of ``close calls,'' our headquarters will provide
oversight and review to assist our field staff in reaching
determinations that are consistent with governing law.
With respect to previous understandings with Corps Districts
regarding the regulation of certain ``Tulloch'' activities, today's
rule describes how potential discharges will be addressed. While the
lack of specific details in many of the specific comments prevents us
from making a determination here, we can clarify that the cutting of
vegetation above the roots is not regulated as a discharge of dredged
material under section 404. 33 CFR 323.2(d)(2)(ii) and 40 CFR 232.2.
Likewise, driving vehicles such as cars, off-road vehicles, or farm
tractors through a wetland in a manner in which such vehicle is
designed to be used generally is not subject to regulation under CWA
section 404. See our August 4, 1995, guidance entitled ``Applicability
of Clean Water Act Section 404 to Vehicle Use in Waters of the U.S.''
Landclearing and excavation practices are discussed above in section
III C of today's preamble. With respect to the comment on guidance said
to have been provided by a District that entities ``may engage in
instream mining and dredging if the intent of the work is to create a
discharge of dredged material that results only in incidental
fallback,'' the proper consideration is not the intent of the
discharger, but whether, in fact, the activity results in only
incidental fallback.
G. Need to Amend CWA
One commenter, while disagreeing with the NMA decision and its
reasoning, indicated that besides rulemaking, the agencies also should
seek action by Congress to amend the CWA so as to clarify agency
authority to fulfill their duty under the CWA to protect the Nation's
waters. Other commenters who were opposed to the proposed rulemaking
expressed the view that it was necessary to obtain an amendment to the
CWA before, or instead of, proceeding with rulemaking. Many of these
commenters believed that the proposed rule exceeded the agencies'
authority under the CWA (see discussion in section III A of today's
preamble) and thus could not be undertaken without an amendment to the
Act. In fact, one such commenter suggested that language in EPA
[[Page 4569]]
Administrator Carol Browner's Press Release announcing the August 16,
2000, proposal reflected a recognition that the agencies do not have
the authority to undertake the action reflected in this rule because it
called on ``Congress to strengthen the Clean Water Act to fully protect
and restore America's wetlands.'' Others felt that in light of the
uncertainties and importance of the issue it was appropriate or even
necessary to wait for Congressional action before proceeding. We do not
agree. We believe today's rule is entirely consistent with the current
CWA and relevant case law, and helps to clarify for the regulated
community and the agencies what activities are likely to result in
regulable discharges. In keeping with the AMC and NMA cases and the
NAHB Motion Decision, today's rule does not provide for regulation of
``incidental fallback,'' and a descriptive definition of that term has
been provided in today's rule language. The language in the press
release calling on Congress to strengthen the Act was a recognition
that the statute, as interpreted in AMC and NMA, does not extend to
regulating incidental fallback. Since today's rule does not regulate
incidental fallback, but rather articulates an approach to determining
whether redeposits of dredged material come within our existing
statutory authority, today's rule is consistent with both the press
release and the CWA as interpreted by the courts.
H. Other Issues
1. Loss Data
As noted in the proposed rule, available information indicated that
more than 20,000 acres of wetlands were subject to ditching and more
than 150 miles of stream channelized since the NMA decision. The
activities causing such ``Tulloch'' losses typically take place without
a CWA section 404 permit, and therefore are not systematically reported
to either EPA or the Corps of Engineers. As a result, the numbers are
believed to likely underestimate actual Tulloch losses. The proposed
rule invited the public to submit further relevant information on
Tulloch losses.
One commenter suggested that this invitation to submit data on
Tulloch losses was an attempt to establish a post hoc rationalization
for today's rule. We disagree. The CWA section 404 establishes a
regulatory program for discharges of dredged material into waters of
the U.S. The Act does not establish a threshold of impacts after which
an activity will be regulated, nor as explained in sections III A 4 and
III D of today's preamble, does today's rule use an effects-based test
to establish jurisdiction. As a result, we do not need aggregate data
showing extensive Tulloch losses or impacts to justify today's
rulemaking. Such information is nonetheless helpful in answering
inquiries from the public about the impacts of Tulloch activities, as
well as in helping focus our limited resources on important
environmental problems.
Many commenters emphasized that the uncertainty created by the NMA
decision has led to a surge in wetlands drainage, resulting in deposits
into wetlands of both unregulated ``incidental fallback'' and regulable
redeposit of dredged material. Commenters expressed concern that
project proponents may decide that a section 404 permit is not
necessary and not contact the Corps for verification. One commenter
described a philosophy of ``if you don't ask, you don't have to worry
about being told no.'' Several commenters suggested that Tulloch losses
will continue to increase until the regulatory definition of
``discharge of dredged material'' is clarified and legislation closes
the Tulloch ``loophole.'' We appreciate these concerns and believe that
by setting forth our expectation as to activities that are likely to
result in regulable discharges, today's rule will help enhance
protection of the Nation's aquatic resources.
Several commenters asserted that the proposal's estimates of
Tulloch losses were conservative, and do not include impacts from
numerous activities occurring throughout the U.S. For example, one
commenter noted that its State data underestimated total wetland acres
drained because estimates were based on less than 80% of identified
sites on which unauthorized drainage had occurred. Other commenters
emphasized that comprehensive data on Tulloch losses is difficult
because developers are not contacting the Corps of Engineers or EPA
about many of their projects. We agree that because Tulloch losses are
not systematically reported, we have likely underestimated the
magnitude of these losses.
Numerous commenters submitted information about wetlands and stream
losses since the decision in NMA, and emphasized that impacts are
national in scope. One commenter noted that Tulloch losses have been
reported in some of the six ecoregions in the U.S. that have been
targeted for special investment due to their biological diversity, and
expressed concern that future losses in these key regions could have
serious impacts on tourism, fishing, and other industries reliant on
ecological resources. Many commenters highlighted Tulloch losses in
their areas, or described aquatic resources that could be destroyed by
future projects unregulated due to the ``Tulloch loophole.'' These
examples illustrate the nationwide implications of the NMA decision.
Descriptions were received of losses in Arkansas, California,
Connecticut, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri,
Nebraska, New York, North Carolina, Ohio, Oregon, Tennessee, Wisconsin,
and Virginia, among others. Public comments providing these examples
are included in the record for today's rule.
Many commenters discussed the environmental effects of Tulloch
losses. Some commenters noted that extensive ditching and drainage of
wetlands had resulted in siltation, sedimentation, and turbidity
violations in designated shellfish waters, primary and secondary
fishery nursery areas, and other sensitive coastal and estuarine
waters. Commenters described potential adverse effects of instream
mining on anadromous fish habitat in the Pacific Northwest and other
regions. Several commenters expressed concern about the potential
impacts on prairie potholes and other wetlands that provide important
habitat for migratory waterfowl. Several commenters expressed concern
about impacts on neighbors of unregulated wetlands drainage. Other
adverse environmental effects from Tulloch losses described by
commenters included: flooding of neighboring businesses, homes and
farms; degradation of receiving waters; shellfish bed closures;
degradation of drinking water supplies; loss of critical habitat; loss
of aesthetics; loss of recreational activities such as bird watching;
and increased toxics loadings from disturbed sediments.
Several commenters discussed the environmental impacts of the
discharge of dredged material. One commenter quoted the court decision
in Deaton, noting that the environmental impacts from the discharge of
dredged material ``[a]re no less harmful when the dredged spoil is
redeposited in the same wetland from which it was excavated. The
effects of hydrology and the environment are the same.'' The adverse
environmental impacts of discharge described by commenters included
such effects as: increased turbidity; reduced light penetration;
mortality of aquatic plants and animals; depletion of dissolved oxygen;
resuspension of contaminants; release of pollutants (heavy metals,
nutrients, and other chemicals) from suspended material;
[[Page 4570]]
biological uptake of pollutants; sedimentation and smothering of
benthic organisms; algal population explosions; fish kills; nuisance
odors; and a decline in biodiversity. As we noted in our discussion of
the comments concerning the use of an effects based test to establish
jurisdiction (see section III A 1 d of today's preamble), today's rule
does not attempt to regulate activities beyond the scope of the CWA or
base our jurisdiction on effects.
Some commenters characterized as unsubstantiated the preamble's
estimates of wetland acres lost and stream miles channelized after the
Tulloch Rule's invalidation. One commenter also suggested that data on
Tulloch losses should be grouped by industry category. We agree that
precise comprehensive data on Tulloch impacts is difficult to collect.
The estimates discussed in the proposal reflect projects that have come
to the attention of agencies' field offices, through field
observations, individual reports, and/or newspapers and other
information sources. We believe that the preamble estimates of Tulloch
losses are conservative, because persons undertaking such activities
often proceed under the assumption that no authorization from the Corps
is required. The proposal's request for information on Tulloch losses
is intended to help ensure available data is as complete as possible.
We do not agree, however, that the collection and categorization of
data by industry is necessary, because today's rule does not regulate
by industry category but on the basis of discharges to waters of the
U.S.
One commenter asserted that Tulloch losses have been more than
offset by mitigation required for permitted losses, because the
preamble to the proposal cites estimates of over 20,000 acres of
unregulated wetlands loss after invalidation of the Tulloch Rule, plus
an estimated 21,500 acres of wetlands lost through authorized
activities in 1999, with 46,000 acres of compensatory mitigation
obtained in 1999. However, only permitted losses resulted in obtaining
compensatory mitigation. Compensatory mitigation ratios for permitted
losses are typically higher than 1:1 to address a variety of factors
considered during permit evaluation, such as the expected likelihood of
success; the percentage of restoration, enhancement, and/or
preservation intended; the temporal loss of functions and values before
the mitigation is fully functioning; and other relevant considerations.
Tulloch losses, on the other hand, involve activities which are not
subject to environmental review or compensatory mitigation. Thus, the
compensatory mitigation figures reported in the proposed rule's
preamble were designed to offset permitted losses only, not Tulloch
losses.
One commenter disagreed about implications of wetlands losses,
expressing doubt about whether wetlands losses might result in a
potential for increased flooding, and characterizing the link between
the two as an unsupported assumption. We note, however, that an
extensive body of scientific literature indicates that wetlands
typically store water at least temporarily, keeping it from flowing
further downhill and downstream, thereby helping reduce the frequency
and severity of flooding. For example, the U.S. Geological Survey's
National Water Summary on Wetlands Resources (1996) notes that ``[i]n
drainage basins with flat terrain that contains many depressions (for
example, the prairie potholes and playa lake regions), lakes and
wetlands store large volumes of snowmelt and (or) runoff. These
wetlands have no natural outlets, and therefore this water is retained
and does not contribute to local or regional flooding.'' Other studies,
such as the 1994 report by the Interagency Floodplain Management Review
Committee, similarly have found links between wetlands losses and
flooding. Sharing the Challenge: Floodplain Management Into the 21st
Century, at Vol. 1, pg. ix; Vol. V at pp 79-88.
2. Miscellaneous Issues
One commenter raised an issue with respect to whether or not snow
plowed into headwater creeks would be regulated by today's rule.
Although we recognize that other Federal or State requirements may
govern such an activity, we do not regulate snow plowing into waters of
the U.S. under section 404. Today's rule addresses discharges of
dredged material, which snow is not. However, if during a snow removal
operation, snowplows, front loaders, bulldozers, or similar equipment
discharge gravel, sand, or other material into waters of the U.S. or
move sediment or soil to new locations within a water of the U.S., then
such activities would be regulated under section 404.
Some commenters raised concerns about the definition of ``waters of
the U.S.,'' expressing the view that the term is very broad and may be
overly inclusive. Today's rule clarifies the definition of the term
``discharge of dredged material'' regulated under CWA section 404. It
does not address the definition or scope of ``waters of the U.S.'' We
are contemplating initiating rulemaking to clarify the definition of
``waters of the U.S.'' (see the Unified Regulatory Agenda, 65 FR 23574
(April 24, 2000)), and would encourage public comments on a proposed
definition at that time. We also note issues related to the scope of
``waters of the U.S.'' are currently pending before the Supreme Court
in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers (No. 99-1178) (SWANCC).
One commenter indicated support for the deletion of the
``grandfather'' provision that was a part of the previous definition of
dredged material. We agree, and today's final rule deletes that
provision as being out of date and no longer necessary.
A number of commenters raised issues that, while related to
wetlands regulation, were not germane to the proposed rule. Examples
include comments regarding delineation methodology or geographic
jurisdiction of the section 404 program, fill material regulation or
the agencies proposed rulemaking regarding the definition of fill
material, and general statements about section 404 regulation. These
comments have been made available to other relevant dockets or
addressed, as appropriate, in the record for today's rule.
3. Economic Issues
Many commenters opposed to the rule expressed concern over its
economic effects. Some of the commenters raising economic concerns
believed that the proposal would have regulated ``incidental fallback''
or was a return to the Tulloch Rule invalidated by the court in AMC and
NMA. Many of the comments raising economic issues questioned the
discussion in the proposed rule's preamble that it did not alter or
enlarge section 404 program jurisdiction or create information
requirements. Other commenters expressed concern with the expense and
difficulty of rebutting the presumption contained in the proposed rule,
especially when, in their view, this was a standardless proposition.
Another asserted their belief that the reference in the proposed rule
preamble to ``potentially'' regulated entities was misleading, as all
persons engaging in excavation activities listed in the rule would be
regulated. Some of the commenters believed the proposal would have an
annual economic effect of more than $100 million dollars, and that
issuance of the proposal without a detailed economic analysis or
consulting with affected entities violated the requirements of the
[[Page 4571]]
Regulatory Flexibility Act (RFA) as Amended by the Small Business
Regulatory Enforcement Fairness Act or the Unfunded Mandates Reform Act
(UMRA). Some of the commenters expressed concern that, coupled with the
changes made in the Corps Nationwide Permit Program, the proposal would
result in increased delays in obtaining authorizations; one commenter
believed the proposal somehow superceded existing Nationwide Permits.
Others questioned how the proposed rule could be deemed to have small
economic effects when the preamble to the proposal noted upwards of
20,000 acres of wetlands were subject to ditching and more than 150
miles of streams channelized. Others questioned why, if the rule was
not economically significant, it was deemed a ``significant regulatory
action'' for purposes of Executive Order 12866. One commenter expressed
concern over the absence of a grandfather provision.
We continue to believe that the economic impacts of the rule will
be insignificant. While some of the commenters expressing concern with
economic impacts believed they would have to consult in advance with
the Corps or that all excavation activities would be subject to
regulation, this is not the case. Nothing in today's rule alters the
current regulatory provisions that exclude incidental fallback from
regulation as a discharge, provisions which were found to comply with
the AMC and NMA decisions by the court in its NAHB Motion Decision.
Today's rule does not alter that status quo, and we thus do not agree
with commenters whose economic concerns were premised on the proposal
somehow enlarging program jurisdiction or reinstating the invalidated
Tulloch Rule. See also section III A of today's preamble for further
discussion.
Moreover, as noted in section II C of today's preamble, the final
rule has been clarified in a number of respects to make clear it is not
creating or imposing new process or information requirements and will
not result in substantially increased workloads. First, it no longer
uses a rebuttable presumption. Second, the final rule has been
clarified to expressly provide that it does not alter any burden in any
administrative or judicial proceeding under the CWA. Finally, we have
provided a descriptive definition of incidental fallback which helps to
clarify for both the regulated community and regulatory staff the type
of redeposits which are not subject to regulation. In this respect, it
may actually reduce costs for the potentially regulated entities
conscientiously attempting to comply with the existing regulations.
Moreover, as noted and discussed numerous times in today's preamble,
the final rule continues to provide for project-specific considerations
in determining if more than incidental fallback results. In this
regard, the proposed rule's preamble reference to ``potentially''
regulated entities was intended to convey this case-by-case nature, and
the final rule preamble thus continues to use that formulation. For all
of these reasons, we continue to believe that today's rule does not
have substantial economic effects, and does not trigger the
requirements of the RFA as amended or UMRA.
Today's rule does not affect section 404 Nationwide permits for
dredged material discharges. Rather, it clarifies the types of
activities which we regard as being likely to result in regulable
discharges. Where only incidental fallback results, a regulable
discharge of dredged material does not occur, and there is no
obligation to obtain coverage under either an individual or a
Nationwide permit. Some of the commenters expressed concern over
lengthy permit review times under Nationwide and individual permits; we
do not believe that the facts warrant these concerns and have included
the most recent available statistics on permit review time in the
administrative record for informational purposes, although, as just
noted, the rule does not alter existing requirements for permit
coverage. With regard to commenters raising concerns over the economic
effects of changes that have been made in the Nationwide permit program
(see 65 FR 12818), although outside the scope of today's rule, we note
that the Corps has prepared and is continuing to work on economic
documentation related to that program.
We do not believe there is any inconsistency in the discussion of
Tulloch losses in the proposed rule's preamble and the conclusion that
the rule will not have significant economic effects. As evidenced by
photos from field visits, some of those losses were accompanied by
substantial relocation and movement of dredged material, and thus seem
to reflect the mistaken belief that any excavation or drainage activity
is exempt from regulation under CWA section 404, regardless of the
presence of a discharge. Activities resulting in a discharge of dredged
material already are subject to regulation under CWA section 404 and
today's rule does not alter this jurisdictional prerequisite.
With regard to questions concerning consistency of our conclusion
that the rule does not have significant economic impacts even though it
was submitted for review under Executive Order 12866, we have clarified
in today's preamble (see section IV B below) that this submittal is not
made on the basis of economic effects, but rather on the portion of
that Executive Order addressing, among other things, rules which
involve legal or policy issues arising out of legal mandates or the
President's priorities. In light of past litigation challenging the
1993 Tulloch Rule and the importance of effectively protecting our
Nation's aquatic resources, the proposed and final rules were submitted
for review under Executive Order 12866. Finally, with regard to the
commenter expressing concern over the absence of a grandfather
provision, we have not included one as today's rule still provides for
consideration of project-specific information, and does not create new
substantive or procedural requirements. We thus do not believe a
grandfather provision is appropriate.
4. Tribal and Federalism Issues
Several commenters raised concerns that the proposed rule would
have substantial direct effects on States, and so is subject to the
``Federalism'' Executive Order 13132 (64 FR 43255 (August 10, 1999)).
One commenter additionally noted that the proposed rule imposes
significant compliance costs on Tribal governments, and therefore must
comply with the consultation requirements of Executive Order 13084.
Some commenters were concerned specifically about the potential
information burden of rebutting the presumption. We disagree that
today's rule will have a substantial direct impact on States or impose
significant compliance costs on Tribes. Today's rule does not change
CWA section 404 program jurisdiction, nor affect a discharger's
obligation to obtain a section 404 permit for discharges of dredged
material into waters of the U.S. Section 404 always has regulated the
``discharge of dredged material.'' Today's rule simply clarifies
program expectations of what activities are likely to result in a
regulable discharge. In addition, today's rule does not use the
proposal's rebuttable presumption formulation, and has been clarified
to expressly state it does not shift any burden in any administrative
or judicial proceeding under the CWA.
Two commenters suggested that the CWA section 404 program itself
was inconsistent with federalism principles, because it imposed on the
traditional State area of regulating land use or is only weakly
connected to a Federal responsibility. Such comments are
[[Page 4572]]
beyond the scope of today's rulemaking. However, we do not agree that
the section 404 program is inconsistent with federalism principles.
Controlling the impacts of pollution and protecting natural resources
has long been a matter of joint Federal and State concern, and the
Federal government long has legislated in the field of environmental
pollution control and resource protection. Section 404 does not
constitute conventional land use planning or zoning, but instead is a
form of environmental protection and pollution control that leaves the
ultimate determination of land use to State and local authorities
consistent with Federal pollution control requirements. In a case
involving impacts of mining on Federal lands, the U.S. Supreme Court
expressed the distinction this way: ``Land use planning in essence
chooses particular uses for the land; environmental regulation, at its
core, does not mandate particular uses of the land but requires only
that, however the land is used, damage to the environment is kept
within prescribed limits.'' (California Coastal Commission v. Granite
Rock Co., 480 U.S. 572, 587 (1987)). Section 404 does not dictate the
particular use for a parcel of property; it regulates the manner in
which the proposed use can be accomplished by avoiding and/or
mitigating the environmental impacts of a discharge of dredged or fill
material into waters of the U.S.
One commenter argued that the proposed rule unlawfully expanded
Constitutional limits to the Corps' ability to protect biological
resources, by including protection of habitat with significant
biological value but little or no commercial value. The commenter
stated that such habitat does not involve interstate commerce, and as a
result is beyond Federal powers and should be protected by State and
local governments. This issue is not within the scope of today's
rulemaking and raises questions about the definition of ``waters of the
U.S.'' which are currently pending before the U.S. Supreme Court in
SWANNC. In addition, nothing in today's rule limits a State or local
government's ability to protect habitat and other resources.
One commenter suggested that Federal regulation is not necessary
because ample State and local authority exists to protect wetlands.
Again, this issue is beyond the scope of today's rulemaking. We
disagree about the lack of a need for a Federal presence in wetlands
regulation. The Federal wetlands program both addresses interstate
issues arising from wetlands protection, and helps support the States'
own environmental objectives. For example, the section 404 program
helps protect States from the effects that filling of wetlands in one
State may have on water quality, flood control, and wildlife in another
State. States with wetlands programs might coordinate closely with the
Federal program, as a means of avoiding duplication and reducing any
administrative burden. For example, States might choose to coordinate
their environmental studies with Federal initiatives or to use Federal
expertise in identification and mapping of wetlands. We also note that
in the SWANCC case, eight states filed an amicus brief explaining the
benefits of 404 regulation to the states and expressing their support
for such regulation (CA, IA, ME, NJ, OK, OR, VT, and WA).
One commenter argued that no Federal reason has been demonstrated
for regulating activities such as ditching and channelization, and the
proposal should not be finalized until an economic analysis is
completed that supports a valid Federal reason to ``expand'' the Corps'
authority. Another commenter noted that the NMA decision has forced a
number of States to incur significant financial costs by acting to stem
further wetlands destruction, and that limited funding has prevented
some States from stepping into the post-NMA loophole. We note that
today's rule does not regulate on the basis of ditching and drainage
activities, but instead on the presence of a discharge of dredged
material into waters of the U.S., as called for under the CWA. Today's
rule does not expand the scope of CWA section 404 program jurisdiction,
nor establish a new program or new required processes affecting the
regulated community. For these reasons, we do not agree that today's
rule requires an economic analysis such as that called for by the
commenter.
We note that many Federal environmental programs, including CWA
section 404, were designed by Congress to be administered at the State
or Tribal level whenever possible. The clear intent of this design is
to use the strengths of the Federal and State and Tribal governments in
a partnership to protect public health and the Nation's resources. EPA
has issued regulations governing State and Tribal assumption of the
section 404 program (40 CFR part 233). The relationship between EPA and
the States and Tribes under assumption of the section 404 Program is
intended to be a partnership. With assumption, States and Tribes assume
primary responsibility for day-to-day program operations. EPA is to
provide consistent environmental leadership at the national level,
develop general program frameworks, establish standards as required by
the CWA, provide technical support to States and Tribes in maintaining
high quality programs, and ensure national compliance with
environmental quality standards. Currently two States (New Jersey and
Michigan) have assumed the section 404 program.
One Tribal commenter felt that the proposed rule impinges on Tribal
sovereignty, in that it does not allow Tribal decisions to undertake
ditching activities for flood control without Federal review. This
commenter also contended that the agencies did not comply with
Executive Order 13084 which would have required that the agencies
consult with the Tribes on the proposed rule under certain
circumstances. The commenter stated that the agencies' conclusion that
the proposed rule will not significantly effect Indian communities nor
impose significant compliance costs on Indian Tribal governments is
erroneous. As mentioned above, today's rule does not change program
jurisdiction. In addition, it does not create any new formal process.
In fact, unlike the proposal, the final rule does not employ a
rebuttable presumption, and also has been clarified to expressly
provide that it does not shift any burden in any administrative or
judicial proceeding under the CWA. We thus believe the rule does not
create an impingement to Tribal sovereignty or significantly affect
Tribal communities.
IV. Administrative Requirements
A. Paperwork Reduction Act
This action does not impose any new information collection burden
or alter or establish new record keeping or reporting requirements.
Thus, this action is not subject to the Paperwork Reduction Act.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or
[[Page 4573]]
State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action'' in
light of the provisions of paragraph (4) above. As such, this action
was submitted to OMB for review. Changes made in response to OMB
suggestions or recommendations are documented in the public record.
C. Executive Order 13132 (Federalism).
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. As explained in
sections II and III of today's preamble, the rule does not alter or
enlarge section 404 program jurisdiction and therefore does not affect
a discharger's (including State dischargers) obligation to obtain a
section 404 permit for any discharge of dredged material into waters of
the U.S. Rather, the rule identifies what types of activities are
likely to give rise to an obligation to obtain such a permit under the
definition of ``discharge of dredged material'' contained in our
existing regulations. It will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Thus, Executive Order 13132 does not apply to this rule.
D. Regulatory Flexibility Act (RFA) as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice-and-comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, a small entity is defined as: (1) A small business based on
SBA size standards; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district, or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's rule on small
entities, we certify that this action will not have a significant
economic impact on a substantial number of small entities. As explained
in sections II and III of today's preamble, the rule does not alter or
enlarge section 404 program jurisdiction and therefore does not change
any discharger's obligation to obtain a section 404 permit for any
discharge of dredged material into waters of the U.S. Rather, the rule
identifies what types of activities are likely to give rise to an
obligation to obtain such a permit under the existing regulatory
program. Moreover, we also do not anticipate that provision of project-
specific information that a regulable discharge does not occur would
result in significant costs.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
We have determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. As explained in sections II and III of today's
preamble, the rule does not alter or enlarge section 404 program
jurisdiction and therefore does not affect a discharger's obligation to
obtain a section 404 permit for any discharge of dredged material into
waters of the U.S. Rather, the rule identifies what types of activities
are likely to give rise to an obligation to obtain such a permit under
the definition of ``discharge of dredged material'' contained in our
existing regulations. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA. For the same reasons,
we have determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Thus,
today's rule is not subject to the requirements of section 203 of UMRA.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law 104-113, section 12(d) (15 U.S.C.
272 note), directs us to use voluntary consensus standards in our
regulatory activities unless to do so would be
[[Page 4574]]
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 us to provide Congress, through
OMB, explanations when we decide not to use available and applicable
voluntary consensus standards.
This rule does not involve technical standards. Therefore, we did
not considering the use of any voluntary consensus standards.
G. Executive Order 13045
Executive Order 13045, entitled Protection of Children From
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that: (1) Was initiated after April 21,
1997, or for which a notice of proposed rulemaking was published after
April 21, 1998; (2) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (3) concerns an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children. If the regulatory action meets all
three criteria, we must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives that we considered.
This final rule is not subject to Executive Order 13045 because it
is not an economically significant regulatory action as defined by
Executive Order 12866. As explained in sections II and III of today's
preamble, the rule does not alter or enlarge section 404 program
jurisdiction and therefore does not affect a discharger's obligation to
obtain a section 404 permit for any discharge of dredged material into
waters of the U.S. Rather, the rule identifies what types of activities
are likely to give rise to an obligation to obtain such a permit under
the definition of ``discharge of dredged material'' contained in our
existing regulations. Furthermore, it does not concern an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children.
H. Executive Order 13084
Under Executive Order 13084, we may not issue a regulation that is
not required by statute, if it significantly or uniquely affects the
communities of Indian Tribal governments and imposes substantial direct
compliance costs on those communities, unless the Federal government
provides the funds necessary to pay the direct compliance cost incurred
by the Tribal governments, or we consult with those governments. If we
comply by consulting, Executive Order 13084 requires us to provide the
Office of Management and Budget, in a separately identified section of
the preamble to the rule, a description of the extent of our prior
consultation with representatives of affected Tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires us to develop an effective process permitting elected
officials and other representatives of Indian Tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments, nor does it impose
significant compliance costs on them. As explained in sections II and
III of today's preamble, the rule does not alter or enlarge section 404
program jurisdiction and therefore does not affect a discharger's
obligation to obtain a section 404 permit for any discharge of dredged
material into waters of the U.S. Rather, the rule identifies what types
of activities are likely to give rise to an obligation to obtain such a
permit under the definition of ``discharge of dredged material''
contained in our existing regulations. Accordingly, the requirements of
section 3(b) of Executive Order 13084 do not apply to this rule.
I. Environmental Documentation
As required by the National Environmental Policy Act (NEPA), the
Corps prepares appropriate environmental documentation for its
activities affecting the quality of the human environment. The Corps
has made a determination that today's rule does not constitute a major
Federal action significantly affecting the quality of the human
environment, and thus does not require the preparation of an
Environmental Impact Statement (EIS). One commenter expressed the view
that an Environmental Impact Statement (EIS) was necessary for the
rule. However, as we noted in the proposed rule's preamble, the Corps
prepares appropriate NEPA documents, when required, covering specific
permit situations. The implementation of today's rule would not
authorize anyone (e.g., any landowner or permit applicant) to perform
any work involving regulated activities in waters of the U.S. without
first seeking and obtaining an appropriate permit authorization from
the Corps. As explained in sections II and III of today's preamble, the
rule does not alter or enlarge section 404 program jurisdiction and
therefore does not affect a discharger's obligation to obtain a section
404 permit for any discharge of dredged material into waters of the
U.S. Rather, the rule identifies what types of activities are likely to
give rise to an obligation to obtain such a permit under the definition
of ``discharge of dredged material'' contained in our existing
regulations. Accordingly, the Corps continues to believe an EIS is not
warranted and has prepared an environmental assessment (EA) for the
rule.
J. Congressional Review Act
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. 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective February 16, 2001.
List of Subjects
33 CFR Part 323
Water pollution control, Waterways.
40 CFR Part 232
Environmental protection, Intergovernmental relations, Water
pollution control.
Corps of Engineers
33 CFR Chapter II
Accordingly, as set forth in the preamble 33 CFR part 323 is
amended as set forth below:
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 as follows:
a. In paragraph (d)(1) introductory text, remove the words
``paragraph
[[Page 4575]]
(d)(2)'' and add, in their place, the words ``paragraph (d)(3)''.
b. Redesignate paragraphs (d)(2) through (d)(5) as paragraphs
(d)(3) through (d)(6), respectively.
c. Add new paragraph (d)(2).
d. In newly redesignated paragraph (d)(4), in the first sentence of
paragraph (d)(4)(i) remove each time they appear the words ``paragraphs
(d)(4) and (d)(5)'' and add, in their place, the words ``paragraphs
(d)(5) and (d)(6)'', remove paragraph (d)(4)(iii), and redesignate
paragraph (d)(4)(iv) as new paragraph (d)(4)(iii).
The addition reads as follows:
Sec. 323.2 Definitions.
* * * * *
(d) * * *
(2)(i) The Corps and EPA regard the use of mechanized earth-moving
equipment to conduct landclearing, ditching, channelization, in-stream
mining or other earth-moving activity in waters of the United States as
resulting in a discharge of dredged material unless project-specific
evidence shows that the activity results in only incidental fallback.
This paragraph (i) does not and is not intended to shift any burden in
any administrative or judicial proceeding under the CWA.
(ii) Incidental fallback is the redeposit of small volumes of
dredged material that is incidental to excavation activity in waters of
the United States when such material falls back to substantially the
same place as the initial removal. Examples of incidental fallback
include soil that is disturbed when dirt is shoveled and the back-spill
that comes off a bucket when such small volume of soil or dirt falls
into substantially the same place from which it was initially removed.
* * * * *
Dated: January 8, 2001.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Environmental Protection Agency
40 CFR Chapter I
Accordingly, as set forth in the preamble 40 CFR part 232 is
amended as set forth below:
PART 232--[AMENDED]
1. The authority citation for part 232 continues to read as
follows:
Authority: 33 U.S.C. 1344.
2. Amend section 232.2 as follows:
a. In paragraph (1) introductory text of the definition of
``Discharge of dredged material'', remove the words ``paragraph (2)''
and add, in their place, the words ``paragraph (3)''.
b. In the definition of ``Discharge of dredged material'',
redesignate paragraphs (2) through (5) as paragraphs (3) through (6),
respectively.
c. In the definition of ``Discharge of dredged material'', add new
paragraph (2).
d. In the first sentence of newly redesignated paragraph (4)(i)
remove each time they appear the words ``paragraphs (4) and (5)'' and
add, in their place, the words ``paragraphs (5) and (6)'', remove
paragraph (4)(iii), and redesignate paragraph (4)(iv) as new paragraph
(4)(iii).
The addition reads as follows:
Sec. 232.2 Definitions.
* * * * *
Discharge of dredged material * * *
(2)(i) The Corps and EPA regard the use of mechanized earth-moving
equipment to conduct landclearing, ditching, channelization, in-stream
mining or other earth-moving activity in waters of the United States as
resulting in a discharge of dredged material unless project-specific
evidence shows that the activity results in only incidental fallback.
This paragraph (i) does not and is not intended to shift any burden in
any administrative or judicial proceeding under the CWA.
(ii) Incidental fallback is the redeposit of small volumes of
dredged material that is incidental to excavation activity in waters of
the United States when such material falls back to substantially the
same place as the initial removal. Examples of incidental fallback
include soil that is disturbed when dirt is shoveled and the back-spill
that comes off a bucket when such small volume of soil or dirt falls
into substantially the same place from which it was initially removed.
* * * * *
Dated: January 9, 2001.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[FR Doc. 01-1179 Filed 1-16-01; 8:45 am]
BILLING CODE 6560-50-P
