4550 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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.

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:

Category Examples of potentially

regulated entities

State/Tribal governments or instrumentalities .......................................... State/Tribal agencies or 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 instrumentalities .................................. Federal government agencies or instrumentalities that discharge

dredged material into waters of the U.S.

Industrial, commercial, or agricultural entities .......................................... Industrial, commercial, or 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.

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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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

4552 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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 earthmoving 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

4554 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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 § 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 § 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 earthmoving 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 projectspecific 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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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

4556 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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 NMArelated 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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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

4558 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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’’ (MiriamWebster’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 earthmoving 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 BayHouston 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 BayHouston 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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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

4560 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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 projectspecific 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 timeconsuming 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.

4562 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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 projectspecific 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 instream mining activities that he believed

were not covered as regulated

discharges. They were the use of a frontend 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,

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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

4564 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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 hydrocarbonsPAHs, 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 metalcontaminated 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 effectbased 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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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 nondelegation 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

4566 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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 projectspecific 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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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

4568 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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 projectspecific 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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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;

4570 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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 projectspecific 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

4572 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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 noticeand-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-forprofit 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

4574 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations

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

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations 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:

§ 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:

§ 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]

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