[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Rules and Regulations]
[Pages 25120-25123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11680]



[[Page 25119]]

_______________________________________________________________________

Part II





Department of Defense





_______________________________________________________________________



Department of the Army, Corps of Engineers



_______________________________________________________________________





Environmental Protection Agency





_______________________________________________________________________



33 CFR Part 323



40 CFR Part 232



Revisions to the Clean Water Act Regulatory Definition of ``Discharge 
of Dredged Material''; Final Rule

  Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 / Rules and 
Regulations  

[[Page 25120]]



DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 323

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 232

[FRL-6338-9]


Revisions to the Clean Water Act Regulatory Definition of 
``Discharge of Dredged Material''

AGENCIES: U.S. Army Corps of Engineers, Department of the Army, DOD; 
and Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental 
Protection Agency (EPA) are promulgating a final rule amending a Clean 
Water Act (CWA) section 404 regulation that defines the term 
``discharge of dredged material.'' This action conforms that definition 
to the results of a lawsuit holding that by asserting jurisdiction over 
any redeposit of dredged material, including incidental fallback, the 
Agencies had exceeded our statutory authority under the CWA. Today's 
action is intended to comply with the injunction issued by the district 
court in that case. Today's rule responds to the court decision by 
deleting language from the regulation that was held to exceed our CWA 
statutory authority and by adding clarifying language.

EFFECTIVE DATE: May 10, 1999.

FOR FURTHER INFORMATION CONTACT: For information on the final rule, 
contact Mr. John Lishman of EPA at (202) 260-9180 or Mr. Mike Smith or 
Mr. Sam Collinson of the Corps at (202) 761-0199. For questions on 
project-specific activities, contact your local Corps District office. 
Addresses and telephone numbers for Corps District offices can be 
obtained from the Corps Regulatory Homepage at http://
www.usace.army.mil/inet/functions/cw/cecwo/reg/district.htm. If you do 
not have access to the Internet, telephone numbers for Corps District 
offices can be obtained by calling the National Wetlands hotline at 
800-832-7828.

SUPPLEMENTARY INFORMATION:

I. Background

A. Potentially Affected Entities

    Persons or entities engaged in discharging dredged material to 
waters of the US could be affected by today's rule. Today's rule 
addresses the regulatory definition of ``discharge of dredged 
material,'' a term which is important in determining what types of 
activities do or do not require a CWA section 404 permit. As described 
further below, today's action does not increase regulatory burdens, but 
rather conforms the language in our section 404 regulations to the 
outcome of a lawsuit challenging the regulatory definition. Examples of 
entities that might potentially be affected include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        affected entities
------------------------------------------------------------------------
State/Tribal governments or              State/tribal agencies or
 instrumentalities.                       instrumentalities that
                                          discharge dredged material to
                                          waters of the U.S.
Local governments or instrumentalities.  Local governments or
                                          instrumentalities that
                                          discharge dredged material to
                                          waters of the U.S.
Industrial, commercial, or agricultural  Industrial, commercial, or
 entities.                                agricultural entities that
                                          discharge dredged material to
                                          waters of the U.S.
Land developers and landowners.........  Land developers and landowners
                                          that discharge dredged
                                          material to waters of the U.S.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that are likely to carry out 
activities affected by this action. This table lists the types of 
entities that the Agencies are now aware of that carry out activities 
potentially affected by this action. Other types of entities not listed 
in the table could also perform activities that are affected. To 
determine whether your organization or its activities are affected by 
this action, you should carefully examine the preamble discussion in 
section II of today's final rule. If you still have questions regarding 
the applicability of this action to a particular activity, consult the 
Corps District offices as listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. Tulloch Rule and Related Litigation

    Section 404 of the Act authorizes the Corps (or a State with an 
authorized permitting program) to issue permits for the discharge of 
dredged or fill material into waters of the United States. On August 
25, 1993 (58 FR 45008), we issued a regulation (the ``Tulloch rule'') 
defining the term ``discharge of dredged material'' as:

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

33 CFR 323.2(d)(1); 40 CFR 232.2.
    The American Mining Congress and several other trade associations 
challenged this regulation. On January 23, 1997, the U.S. District 
Court for the District of Columbia ruled that the regulation exceeded 
our authority under the CWA because it impermissibly regulated 
``incidental fallback'' of dredged material.1 The court 
concluded that incidental fallback is not subject to the CWA as an 
``addition'' of pollutants, and declared the rule ``invalid and set 
aside.'' The Court also enjoined us from applying or enforcing the 
regulation. The government appealed the court's ruling and, on June 19, 
1998, the U.S. Court of Appeals for the District of Columbia Circuit 
affirmed the district court's decision.2 American Mining 
Congress v. United States Army Corps of Engineers, 951 F.Supp. 267 
(D.D.C. 1997); aff'd sub nom, National Mining Association v. United 
States Army Corps of Engineers, 145 F.3d 1339 (D.C. Cir. 1998) 
(``NMA'').
---------------------------------------------------------------------------

    \1\ Incidental fallback results in the return of dredged 
material virtually to the spot from which it came. See, NMA, 145 
F.3d at 1403.
    \2\ The NMA decision did not address the definition of 
``discharge of fill material'' (33 CFR 323.2(f); 40 CFR 232.2), and 
thus did not affect the regulation of discharges of fill material, 
nor are the Agencies altering that definition in today's rulemaking.
---------------------------------------------------------------------------

II. Today's Rule

    Today's rule modifies our definition of ``discharge of dredged 
material'' in order to respond to the Court of Appeals' holding in NMA, 
and is intended to comply with the district court's injunction. The 
D.C. Circuit

[[Page 25121]]

found that the Tulloch rule changed the prior regulatory regime by 
regulating incidental fallback for the first time. 145 F.3d at 1402. 
The court found that the rule accomplished this result by defining 
``discharge'' to include ``any redeposit'' of dredged material. See, 
145 F.3d at 1403 (``It is undisputed that by requiring a permit for 
`any redeposit' the Tulloch rule covers incidental fallback'') 
(emphasis in original) (citation omitted). The court concluded that 
incidental fallback is not an ``addition'' of a pollutant, and that, 
therefore, our assertion of authority to regulate any redeposit of 
dredged material exceeded our statutory authority. 145 F.3d at 1405 
(``We hold only that by asserting jurisdiction over `any redeposit,' 
including incidental fallback, the Tulloch rule outruns the Corps's 
statutory authority'') (emphasis in original). To conform our 
regulation to this holding we have made two modifications to the rule. 
First, today's rule deletes use of the word ``any'' as a modifier of 
the term ``redeposit.'' Second, today's rule expressly excludes 
``incidental fallback'' from the definition of ``discharge of dredged 
material.''
    Today's rule does not alter the well-settled doctrine, recognized 
in NMA, that some redeposits of dredged material in waters of the 
United States constitute a discharge of dredged material and therefore 
require a section 404 permit. See 145 F.3d at 1405 (``But we do not 
hold that the Corps may not legally regulate some forms of redeposit 
under its section 404 permitting authority.''); 145 F.3d at 1405, n.6 
(recognizing that ``a redeposit could be an addition to [a] new 
location and thus a discharge'').
    Deciding when a particular redeposit is subject to CWA jurisdiction 
will require a case-by-case evaluation, based on the particular facts 
of each case. Judicial decisions have established, and the D.C. Circuit 
recognized in NMA, that redeposits associated with the following are 
subject to CWA jurisdiction: mechanized landclearing, redeposits at 
various distances from the point of removal (e.g., sidecasting), and 
removal of dirt and gravel from a streambed and its subsequent 
redeposit in the waterway after segregation of minerals. 145 F.3d at 
1407. See also, Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 
(5th Cir. 1983) (mechanized landclearing requires section 404 permit); 
United States v. M.C.C. of Florida, 772 F.2d 1501 (11th Cir. 1985), 
vacated on other grounds, 481 U.S. 1034 (1987), readopted in relevant 
part on remand, 848 F.2d 1133 (11th Cir. 1988) (redeposit of river 
bottom sediments on adjacent sea grass beds is an ``addition''); 
Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) (resuspension of 
materials by placer miners as part of gold extraction operations is an 
``addition of a pollutant'' under the CWA subject to EPA's regulatory 
authority); NMA, 951 F.Supp. at 270 (``Sidecasting, which involves 
placing removed soil alongside a ditch, and sloppy disposal practices 
involving significant discharges into waters, have always been subject 
to section 404'').
    Determining whether a particular redeposit constitutes incidental 
fallback and, under the court's decision is not subject to section 404, 
will also require evaluation on a case-by-case basis. The NMA decision 
indicates incidental fallback ``* * * returns dredged material 
virtually to the spot from which it came.'' 145 F.3d at 1403. It also 
describes incidental fallback as occurring ``when redeposit takes place 
in substantially the same spot as the initial removal.'' 145 F.3d at 
1401. Similarly, the district court described incidental fallback as 
``the incidental soil movement from excavation, such as the soil that 
is disturbed when dirt is shoveled, or the back-spill that comes off a 
bucket and falls back into the same place from which it was removed.'' 
951 F.Supp. at 270.
    The court in NMA recognized that the CWA ``sets out no bright line 
between incidental fallback on the one hand and regulable redeposits on 
the other'' and that ``a reasoned attempt to draw such a line would 
merit considerable deference.'' 145 F.3d at 1405. We have not attempted 
to draw such a line here. Nor have we evaluated (as we did when 
promulgating the Tulloch rule) the complex legal, factual and policy 
questions associated with interpreting the reach of the CWA. Rather, we 
have promulgated today's rule to comply with the injunction issued in 
NMA, and as described below, will expeditiously undertake notice and 
comment rulemaking that will make a reasoned attempt to more clearly 
delineate the scope of CWA jurisdiction over redeposits of dredged 
material in waters of the U.S. In the interim, we will determine on a 
case-by-case basis whether a particular redeposit of dredged material 
in waters of the United States requires a section 404 permit, 
consistent with our CWA authorities and governing case law. Entities 
that are engaging, or intend to engage, in activities in waters of the 
U.S. that may result in a ``discharge of dredged material'' as that 
term is defined in today's final rule are hereby given notice that the 
agencies intend to regulate those activities that we find, based on the 
particular circumstances, would result in an addition of pollutants to 
waters of the U.S.

III. Future Notice and Comment Rulemaking

    As explained in the preamble language accompanying the issuance of 
theTulloch rule (57 FR 26894 (June 16, 1992); 58 FR 45008 (August 25, 
1993)), some small volume discharges associated with mechanized 
landclearing, ditching, channelization, or other excavation activities 
were not consistently subject to environmental review under the pre-
Tulloch regulations even though waters of the U.S., including wetlands, 
were destroyed or degraded. By using specialized dredging and disposal 
techniques some developers sought to use a loophole in those 
regulations to convert wetlands without the need to obtain a CWA 
section 404 permit. The section 404 environmental review process is not 
aimed at preventing development, but instead is designed to avoid 
unacceptable adverse environmental impacts, and to the extent adverse 
impacts cannot be avoided, assure they are appropriately minimized or 
mitigated.
    The Agencies are particularly concerned that, without further 
action to clarify the definition of ``discharge of dredged material,'' 
large-scale destruction of wetlands could occur, resulting in increased 
flooding or runoff and harm to neighboring property, pollution of 
streams and rivers, and loss of valuable habitat. Moreover, available 
information indicates that such losses are already occurring. 
Accordingly, the Agencies will expeditiously undertake additional 
notice and comment rulemaking in furtherance of the CWA's objective to 
``restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters.'' Additionally, the NMA court recognized that 
the CWA ``sets out no bright line between incidental fallback on the 
one hand and regulable redeposits on the other'' and that ``a reasoned 
attempt to draw such a line would merit considerable deference.'' (145 
F.3d at 1405). Further rulemaking thus is appropriate not only to 
ensure that the Nation's wetlands and other waters of the U.S. will 
continue to receive the protection required by section 404 of the CWA, 
but also to enhance clarity, certainty, and consistency in determining 
what activities are subject to section 404 in light of the NMA 
decision.

[[Page 25122]]

IV. Related Statutes and Executive Orders

A. Findings Under 5 U.S.C. 553

    Under the Administrative Procedure Act (APA), 5 U.S.C. 553, 
agencies are required to publish a notice of proposed rulemaking and 
provide an opportunity for the public to comment on any substantive 
rulemaking action. Notice and comment is not required, however,

when the agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefore in the rules issued) that 
notice and public procedure thereon are impracticable, unnecessary, 
or contrary to the public interest.

5 U.S.C. 553(b)(3)(B).
    Today's rule merely conforms the language in our section 404 
regulations to the current status of those regulations after the NMA 
case. The district court judgment, as affirmed by the D.C. Circuit, 
invalidated application of our regulation to incidental fallback and 
enjoined us from applying or enforcing the rule. By expressly excluding 
incidental fallback from the definition of ``discharge of dredged 
material,'' today's revisions conform the regulations to reflect the 
legal status quo in light of the NMA decision. Therefore, we find that 
solicitation of public comment is unnecessary.
    Under 5 U.S.C. 553(d)(1) and (3), rules must be published at least 
30 days prior to their effective date, except where the rule ``grants 
or recognizes an exemption or relieves a restriction,'' or where 
justified by the agency for ``good cause.'' Today's rule, in accordance 
with the NMA decision, removes the requirement for a section 404 permit 
for incidental fallback in waters of the U.S. Accordingly, today's rule 
is effective immediately.

B. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to 
minimize the reporting and record-keeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act requires that 
information requests and record-keeping requirements affecting ten or 
more non-Federal respondents be approved by the Office of Management 
and Budget (OMB). The current OMB approval number for information 
requirements related to the CWA section 404 program is 0710-0003 
(expires June 30, 2000). Today's rule merely conforms the definition of 
``discharge of dredged material'' to reflect the ruling in the NMA 
case. It does not establish or modify any information reporting, or 
record-keeping requirements, and therefore is not subject to the 
requirements of the Paperwork Reduction Act.

C. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. 
Today's rule does not involve technical standards. Therefore, EPA did 
not consider the use of any voluntary consensus standards.

D. Other Statutes and Executive Orders

    Today's rule does not establish any new requirements, mandates or 
procedures. As explained above, today's rule merely conforms the 
regulations' definition of ``discharge of dredged material'' to reflect 
the judicial decision in the NMA case. Because today's rule is a 
``housekeeping'' measure undertaken to conform the regulatory language 
to that judicial determination, it does not result in any additional or 
new regulatory requirements. In fact, the judicial determination which 
it reflects has the practical effect of removing incidental fallback 
from coverage under the regulations. Accordingly, it has been 
determined that this rule is not a ``significant regulatory action'' 
under Executive Order 12866, and is therefore not subject to review by 
the Office of Management and Budget. In addition, this action does not 
impose any enforceable duty, contain any unfunded mandate, or impose 
any significant or unique impact on small governments as described in 
the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule 
also does not require prior consultation with State, local, and tribal 
government officials as specified by Executive Order 12875 (58 FR 
58093, October 28, 1993) or Executive Order 13084 (63 FR 27655 (May 10, 
1998), or involve special consideration of environmental justice 
related issues as required by Executive Order 12898 (59 FR 7629, 
February 16, 1994). Because this action is not subject to notice-and-
comment requirements under the APA or any other statute, and because it 
does not impose any requirements on small entities, it is not subject 
to the regulatory flexibility provisions of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). This rule is not subject to E.O. 13045 (62 
FR 19885, April 23, 1997) because it is not economically significant as 
defined under E.O. 12866. Further, EPA interprets E.O. 13045 as 
applying only to those regulatory actions that are based on health or 
safety risks such that the analysis required under section 5-501 of the 
Order has the potential to influence the regulation. This rule is not 
subject to E.O. 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a good 
cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, we have made such a good cause finding, including the 
reasons therefore, and established an effective date of May 10, 1999. 
We will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects

33 CFR Part 323

    Navigation, Water Pollution Control, Waterways

40 CFR Part 232

    Environmental protection, Wetlands, Water Pollution Control.


[[Page 25123]]


    Dated: April 27, 1999.
Carol D. Browner,
Administrator, Environmental Protection Agency.

    Dated: April 30, 1999.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.

    In consideration of the foregoing, 33 CFR Part 323 and 40 CFR Part 
232 are amended as set forth below:

33 CFR CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY

PART 323--[AMENDED]

    1. The authority citation for Part 323 continues to read as 
follows:

    Authority: 33 U.S.C. 1344.

    2. Amend section 323.2(d) as follows:
    a. In the first sentence of paragraph (d)(1), remove the words 
``any redeposit of dredged material'' and add, in their place, the 
words ``redeposit of dredged material other than incidental fallback''.
    b. In paragraph (d)(1)(iii), remove the words ``any redeposit,'' 
and add, in their place, the words ``redeposit other than incidental 
fallback,''.
    c. In paragraph (d)(2), add at the end thereof a new paragraph 
(d)(2)(iii) to read as follows:


Sec. 232.2  Definitions.

* * * * *
    (d) * * *
    (2) * * *
    (iii) Incidental fallback.
* * * * *

40 CFR CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY

PART 232--[AMENDED]

    3. The authority citation for Part 232 continues to read as 
follows:

    Authority: 33 U.S.C. 1344.

    4. In Sec. 232.2 the definition of ``discharge of dredged 
material'' is amended as follows:
    a. In the first sentence of paragraph (1), remove the words ``any 
redeposit of dredged material'' and add, in their place, the words 
``redeposit of dredged material other than incidental fallback''.
    b. In paragraph (1)(iii), remove the words ``any redeposit,'' and 
add, in their place, the words ``redeposit other than incidental 
fallback,''.
    c. In paragraph (2), add at the end thereof a new paragraph 
(2)(iii) to read as follows:


Sec. 232.2  Definitions.

* * * * *
    Discharge of dredged material * * *
    (2) * * *
    (iii) Incidental fallback.
* * * * *
[FR Doc. 99-11680 Filed 5-5-99; 3:41 pm]
BILLING CODE 6560-50-P