[Federal Register Volume 65, Number 159 (Wednesday, August 16, 2000)]
[Proposed Rules]
[Pages 50108-50117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20792]



[[Page 50107]]

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

Part IV





Department of Defense





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



Department of the Army, Corps of Engineers



33 CFR Part 323



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





Environmental Protection Agency





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

40 CFR Part 232



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

  Federal Register / Vol. 65, No. 159 / Wednesday, August 16, 2000 / 
Proposed Rules  

[[Page 50108]]


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

DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 323

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 232

[FRL-6852-1]


Further 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: Proposed rule.

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

SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental 
Protection Agency (EPA) are publishing a proposed rule that would amend 
our Clean Water Act (CWA) section 404 regulations defining the term 
``discharge of dredged material.'' Today's proposal is intended to 
identify types of activities that are likely to result in a discharge 
of dredged material subject to CWA section 404. The proposal would 
enhance protection of the Nation's aquatic resources, including 
wetlands, by amending the regulations to establish a rebuttable 
presumption that mechanized landclearing, ditching, channelization, in-
stream mining, or other mechanized excavation activity in waters of the 
United States result in more than incidental fallback, and thus involve 
a regulable discharge of dredged material.

DATES: Written comments must be submitted by October 16, 2000.

ADDRESSES: Written comments and enclosures should be mailed or hand-
delivered to: Office of the Chief of Engineers, ATTN CECW-OR (3 F73), 
Further Revisions to Definition of Discharge of Dredged Material, 441 G 
Street, NW., Washington, DC 20314-1000. Comments may also be submitted 
electronically to: [email protected]. Electronic comments must 
be submitted as a Word Perfect, Word, or ASCII file, and avoid the use 
of special characters or any form of encryption.
    We request that commenters submit any references cited in their 
comments. We also request that commenters submit an original and 2 
copies of their written comments and enclosures. Commenters that want 
receipt of their comments acknowledged should include a self-addressed, 
stamped envelope. All comments must be postmarked, delivered by hand, 
or provided by e-mail. No facsimiles (faxes) will be accepted.
    A copy of the supporting documents for this proposed rule is 
available for review at the U.S. Army Corps of Engineers, located at 
441 G Street, NW., Room 3F73, Washington, DC 20314-1000. For access to 
docket materials, call (202) 761-4598 between 9 a.m. and 3:30 p.m. for 
an appointment.

FOR FURTHER INFORMATION CONTACT: For information on the proposed rule, 
contact either Mr. Mike Smith, U.S. Army Corps of Engineers, ATTN CECW-
OR (3F73), 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 proposed 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 proposal 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 proposal identifies types of activities 
that are likely to result in a discharge of dredged material subject to 
CWA section 404. Examples of entities potentially regulated include:

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

    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 preamble discussion in Section III of today's 
proposal. 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. Litigation Involving Previous Rulemaking

    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

[[Page 50109]]

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 term ``discharge of 
dredged material'' as including ``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 that destroys or degrades waters of the United States.'' 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. 
American 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''). Because that decision addresses the 
definition of the ``discharge of dredged material,'' it does not 
affect, nor would today's proposal alter, the requirements governing 
discharges of fill material.
    The NMA court described incidental fallback as returning ``* * * 
dredged material virtually to the spot from which it came'' (145 F.3d 
at 1403), as well as occurring ``when redeposit takes place in 
substantially the same spot as the initial removal.'' 145 F.3d at 1401. 
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 authority under 
the CWA: ``We hold only that by asserting jurisdiction over `any 
redeposit,' including incidental fallback, the Tulloch rule outruns the 
Corps's statutory authority.'' 145 F.3d at 1405 (emphasis in original).
    Information from our District and Regional offices and the States, 
included in the administrative record, indicates that since the 
District Court decision, upwards of 20,000 acres of wetlands were 
subject to ditching and more than 150 miles of streams channelized 
without undergoing section 404 environmental review or mitigation. 
Losses on this scale carry the potential for increased flooding or 
runoff and harm to downstream property, pollution of streams and 
rivers, degradation of water quality, and loss of aquatic habitat. In 
comparison, wetlands activities taking place under section 404 
permitting are subject to careful review in order to avoid and minimize 
impacts, and unavoidable losses are subject to mitigation in order to 
compensate for the loss of wetlands functions and values. In fiscal 
year 1999, approximately 21,500 acres of permitted wetlands losses took 
place, but these were offset by approximately 46,000 acres of 
compensatory mitigation.
    The losses due to ditching and stream channelization reflect best 
available estimates using information from EPA Regional offices, Corps 
District Offices, and the States. Given that the activities causing 
such losses take place without review under the CWA section 404 permit 
program and are not systematically reported or tracked, we believe that 
these numbers are likely to be under-estimates. We invite the public to 
submit further relevant information, which should be sent to the 
address specified in the ADDRESSES section of this preamble.

C. Rulemaking To Respond to NMA Decision

    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 Court's decision, primarily 
by modifying the definition of ``discharge of dredged material'' to 
expressly exclude regulation of ``incidental fallback.'' As explained 
in the preamble to that 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 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.'' 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. The Court also 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).
    Since the NMA decision, there has been confusion around the country 
as to what activities are likely to result in regulable discharges of 
dredged material. Today's proposal would 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. Based on 
our experience with dredging and excavation activities, including the 
administrative record underlying the Tulloch rule, and as explained 
further in section III.B. of today's preamble, the nature of these 
activities and the types of equipment used will by their very nature 
produce discharges of dredged material unless specialized and 
sophisticated techniques and equipment are used to ensure that only 
incidental fallback will result.
    The agencies are concerned that without this additional rulemaking, 
unregulated discharges consisting of more than incidental fallback may 
continue to occur and result in large-scale destruction of wetlands and 
degradation of many miles of streams and other waters of the U.S. Such 
wetlands loss and water body degradation have the potential to result 
in increased flooding or runoff, harm to downstream people and 
property, pollution of lakes, rivers and streams, destruction of 
commercial fisheries, closures of shellfish beds, diminution and 
degradation of drinking water supplies, and loss of wildlife habitat. 
This proposed rulemaking will assist in implementing the CWA's express 
mandate to regulate the discharge of dredged material and to serve 
Congress's intent to ``restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters.'' This proposal also will 
help in achieving greater consistency in the application of section 404 
of the CWA.

D. Overview of Relevant Case Law

    As the NMA Court and other judicial decisions recognize, the 
redeposit of dredged material ``some distance'' from the point of 
removal--including the distance from a ditch to the edge of a ditch--
constitutes a regulable redeposit. NMA, 145 F.3d at 1407 (redeposit at 
``some distance'' from the point of removal is within the ``pre-Tulloch 
core''); United States v. Deaton, No. 98-2256 (4th Cir. 2000) slip op. 
at 6-10

[[Page 50110]]

(upholding regulation of sidecasting); 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) (redeposit of river bottom sediments on adjacent sea 
grass beds is an ``addition'').
    Indeed, because dredged material by definition is material that is 
dredged or excavated from waters of the U.S. (see, 33 CFR 323.2(c); 40 
CFR 232.2), the discharge of dredged material is by its very nature a 
redeposit of such material. As the Fifth Circuit observed in Avoyelles: 
``No one has argued here that the materials must come from an external 
source in order to constitute a discharge necessitating a Section 404 
permit, nor would we expect them to, since Section 404 refers to 
`dredged' or `fill' material. * * * `[D]redged' material is by 
definition material that comes from the water itself. A requirement 
that all pollutants must come from outside sources would effectively 
remove the dredge-and-fill provision from the statute.'' 715 F.2d at 
924 n. 43. See also, Deaton, at 12. Likewise, Avoyelles recognized with 
respect to mechanized landclearing that ``the term `discharge' covers 
the redepositing of materials taken from the wetlands'' Avoyelles 
Sportsmen's League v. Marsh, 715 F.2d 897 at 923 (5th Cir. 1983); and 
for backfilling of trenches with the excavated material (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); Iroquois 
Gas Transmission System v. FERC, 145 F.3d 398, 402 (2nd Cir. 1998); 
see, Slinger Drainage Inc., CWA Appeal No. 98-10 (EPA Environmental 
Appeals Board (EAB) decision holding that backfilling by a Hoes 
trenching machine is a regulable discharge of dredged material, not 
incidental fallback)); see also, Rybachek v. EPA, 904 F.2d 1276 (9th 
Cir. 1990) (removal of dirt and gravel from a streambed and its 
subsequent redeposit in the waterway after segregation of minerals is 
an ``addition of a pollutant'' under the CWA subject to EPA's section 
402 regulatory authority).
    Courts have similarly recognized that sidecasting (the piling of 
excavated dirt on the edge of a ditch or elsewhere in a wetland or 
other water of the U.S.) has long been a discharge regulated under CWA 
section 404. NMA, 145 F.3d at 1407 (D.C. Cir. 1998) (noting that the 
Corps has always regulated ``sidecasting''); see also, 58 FR 45,008, 
45,013 (Aug. 25, 1993) (noting that sidecasting has ``always been 
regulated under Section 404.'').
    The most recent judicial decision reaffirming that sidecasting is a 
regulable discharge of a pollutant subject to CWA section 404 is United 
States v. Deaton, No. 98-2256 (4th Cir. 2000). That case involved use 
of a backhoe, a front-end track loader, and a bulldozer to dig a 1,240 
foot ditch that intersected non-tidal wetlands in an effort to drain 
them, with the contractor piling the excavated dirt on either side of 
the ditch. The government filed a civil complaint alleging that the 
Deatons had violated the CWA by discharging the material excavated from 
the ditch into a wetland without a CWA section 404 permit.
    Subsequent to the filing of that complaint, however, the Fourth 
Circuit issued a decision in another case, United States v. Wilson, 133 
F.3d 251 (4th Cir. 1997), in which a divided panel considered, among 
other issues, whether sidecasting was a regulable discharge. One judge 
concluded that sidecasting did not constitute the discharge of a 
pollutant under the CWA, one judge concluded that it did, and one judge 
concurred in the judgment without reaching the sidecasting question. 
After the Wilson decision was issued, the District Court in the Deaton 
case entered an order on June 23, 1998, noting that although it agreed 
with the judge in Wilson who concluded that sidecasting is a regulable 
discharge (see Wilson, 133 F.3d at 266-75 (op. of Payne, J.)), the 
Court predicted that the Fourth Circuit would adopt the reasoning of 
the judge who concluded that it is not (see Wilson, 133 F.3d at 258-60 
(op. of Niemeyer, J.)). Following an order granting summary judgment 
for the Deatons, the government appealed to the Fourth Circuit.
    On appeal, a unanimous panel of the Fourth Circuit reversed the 
District Court decision, holding that sidecasting is the discharge of a 
pollutant that violates the CWA when conducted without a permit. In the 
Deaton case, the defendants sought to use the NMA decision to argue 
that ``[b]ecause sidecasting results in no net increase in the amount 
of material present in the wetland * * * it does not involve the 
`addition' (or discharge) of a pollutant.'' Deaton at 12. The Fourth 
Circuit, however, specifically rejected this argument, determining 
that:

    Contrary to what the Deatons suggest, the statute does not 
prohibit the addition of material; it prohibits ``the addition of 
any pollutant.'' The 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, as occurred here. In the 
course of digging a ditch across the Deaton property, the contractor 
removed earth and vegetable matter from the wetland. Once it was 
removed, that material became ``dredged spoil,'' a statutory 
pollutant and a type of material that up until then was not present 
on the Deaton property. It 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. What is important is that once that material was excavated 
from the wetland, its redeposit in that same wetland added a 
pollutant where none had been before. See 33 U.S.C. sections 1362 
(6), (12). Thus, * * * sidecasting adds a pollutant that was not 
present before. Deaton at 12-13.

    In reaching this conclusion, the Fourth Circuit also found that the 
adverse effects of redeposits:

    [a]re no less harmful when the dredged spoil is redeposited in 
the same wetland from which it was excavated. The effects on 
hydrology and the environment are the same. Surely Congress would 
not have used the word ``addition'' (in ``addition of any 
pollutant'') to prohibit the discharge of dredged spoil in a 
wetland, while intending to prohibit such pollution only when the 
dredged material comes from outside the wetland. In reaching this 
conclusion, our understanding of the word ``addition'' is the same 
as that of nearly every other circuit to consider the question. 
Deaton at 16 (citations omitted).

    Backfilling, which involves the placement of a substantial amount 
of excavated material back into the trench, ditch or hole from which it 
was excavated, has also been found to be a regulable discharge by the 
courts. For example, backfilling occurs when a trench is dug in a 
wetland and the dredged material is then pushed back into the trench 
from which it came. Such substantial redeposits of dredged material 
into the removal site have been found to constitute regulable 
discharges under CWA section 404. 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) (backfilling into ditch is properly 
subject to section 404); see, Iroquois Gas Transmission System v. FERC, 
145 F.3d 398 at 402 (2nd Cir. 1998); see also, Slinger Drainage Inc., 
CWA Appeal No. 98-10 (EPA EAB decision holding that near simultaneous 
cutting of trench and backfilling by a Hoes trenching machine is a 
regulable discharge of dredged material, and not incidental fallback). 
Similarly, when a bulldozer blade pushes wetland soils and vegetation 
and redeposits these materials into piles in a water of the U.S., a 
regulable discharge occurs. Avoyelles, supra. Such a discharge may

[[Page 50111]]

result even when material is temporarily stockpiled. United States v. 
Bay-Houston Towing Company, No. 98-73252 (E.D. Mich. 2000) at 8 -9 
(peat harvesting that involves spreading of sidecast bog material for 
future harvest for a period of time varying from a few hours to a few 
days or more is more than mere ``incidental fallback''); see also, 
United States v. Bay-Houston Towing Company, 33 F.Supp.2d 596, 606--607 
(E.D. Mich. 1999) (denial of motion for summary judgment).

III. Today's Proposed Rule

A. Summary

    In order to enhance environmental protection and help ensure that 
regulable discharges are subject to section 404 in a manner consistent 
with the NMA and other judicial decisions, we have undertaken today's 
proposed rulemaking. Today's proposed rule would modify our definition 
of ``discharge of dredged material'' by establishing a rebuttable 
presumption that regulable discharges result from certain types of 
activities in waters of the U.S. In particular, the proposal would 
apply the rebuttable presumption to mechanized landclearing, ditching, 
channelization, in-stream mining, or other mechanized excavation 
activity in waters of the U.S., including wetlands. This would be done 
by adding a new paragraph (2) to the definition of ``discharge of 
dredged material'' in the Corps'' regulations at 33 CFR 323.2(d) and in 
the EPA regulations at 40 CFR 232.2.
    In addition, today's proposal would remove existing paragraph 
3(iii) from the Corps' regulations at 33 CFR 323.2(d) and the 
counterpart EPA regulation at 40 CFR 232.2. That paragraph contains a 
``grandfather'' provision for certain activities to be completed by 
August 24, 1995, and further provides the grandfather provision may not 
extend beyond August 25, 1996. Because the provision is now outdated, 
it would be deleted by today's proposal.

B. Rebuttable Presumption of Discharge

    We believe the proposed approach is reasonable because it 
recognizes that, as a general matter, the activities in question 
typically are conducted in a manner that results in the redeposit of 
dredged material that constitutes the addition of pollutants to waters 
of the U.S.. The CWA broadly prohibits the discharge, without a permit, 
of any pollutant into ``navigable waters.'' See 33 U.S.C. 1311(a). The 
Act defines ``discharge of a pollutant'' to mean ``any addition of any 
pollutant to navigable waters from any point source.'' 33 U.S.C. 
1362(12). The definition of pollutant specifically includes ``dredge 
spoil'' that has been ``discharged into water.'' 33 U.S.C. 1362(6). As 
the court in Deaton noted, ``It 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. What 
is important is that once that material was excavated from the wetland, 
its redeposit in that same wetland added a pollutant where none had 
been before. See 33 U.S.C. 1362(6), (12).'' Deaton, at 12. ``In 
deciding to classify dredged spoil as a pollutant, Congress determined 
that plain dirt, once excavated from waters of the U.S., could not be 
redeposited into those waters without causing harm to the 
environment.'' Deaton, at 13.
    Activities that would be subject to the rebuttable presumption 
typically use mechanized equipment that redeposits dredged material in 
a manner and amount that is different from, or greater than, incidental 
fallback. For example, during mechanized landclearing, implements are 
scraped along the surface or pushed into the ground and then moved 
through the soil, usually by bulldozers or loaders. The machinery used 
in mechanized landclearing normally scrapes, picks up, moves, or 
otherwise displaces debris and soil. Brushrakes, rootrakes, chunkrakes, 
disc harrows, root plows, rippers, bulldozer plows, and many types of 
shearing blades are examples of the type of equipment used in 
mechanized landclearing. Brushrake tines scrape below the ground level 
to gather and stockpile slash and loose rock. Chunkrakes have bowl 
shaped blades frequently up to two feet or more in diameter, which cut 
into the ground and fluff the soil. Disc harrows knock down, chop and 
partially bury weeds, brush, and small saplings by using concave discs, 
two feet or more in diameter with sharp scalloped edges. Rootrakes 
remove roots and stumps by use of a fork-like blade pushed through the 
soil. Tractor-mounted shearing blades, which can weigh up to several 
thousand pounds, move large amounts of debris, soil, and roots when 
dragged along the surface of the ground. Rippers and deep plows are 
pulled along below the soil surface to break up hard pans or other 
stiff subsoil. The arm which attaches them to the bulldozer or loader 
also drags through the ground, moving soil aside. Where the disc, tine, 
or rake scrapes or penetrates the ground, soil is displaced in front of 
the machine and come to rest in a new location.
    Use of equipment such as bulldozers and graders in mechanized 
landclearing typically moves substantial amounts of soil beyond the 
spot of removal and within waters of the U.S. For example, when a 
bulldozer is operated in a wetland, wetland soils are pushed along by 
the blade of the bulldozer and are redeposited at various points beyond 
the spot of removal. When mechanized equipment, such as graders or 
bulldozers, are used to level or grade a wetland, wetland soils are 
pushed by the blades and redeposited elsewhere in the wetland. These 
are regulable discharges of dredged material. Avoyelles, supra.
    Other types of mechanized landclearing equipment can substantially 
disturb and relocate soil and sediments. Tree pushers and tree 
splitters, for instance, normally uproot trees and redistribute soil. A 
tree pusher uses a bar mounted to the front of a bulldozer or loader 
while a tree splitter uses a V-shaped blade which is usually about 18 
to 20 feet in length. A tree pusher or tree splitter knocks the tree 
down and in so doing rips the roots out of the ground. Any roots 
remaining are then typically removed from the ground by the bulldozer's 
blade.
    We also recognize that not all equipment used to remove trees 
disturbs root systems, or otherwise causes a discharge of dredged 
material. Some tree shears or tree pinchers, for example, cut 
vegetation above the ground while leaving the soils and roots intact, 
and, as recognized by the existing regulations (33 CFR 323.2(d)(2)(ii) 
and 40 CFR 232.2), this does not result in a discharge of dredged 
material.
    During excavation, material in either a solid or semi-solid form is 
removed from the waters of the U.S., and, unless highly specialized 
techniques are used, is typically redeposited in areas of waters of the 
U.S. beyond the excavation site. Most ditching and channelization 
activities use mechanized equipment of some type such as backhoes, 
bulldozers, dippers, or bucket dredges. A backhoe, a hoe-type or pull-
type shovel attached to the back of a front loader, shovels and then 
lifts soil or sediments from waters of the U.S. It is often used during 
the construction of ditches or for stream channelization projects. A 
dipper and bucket dredge operate at the end of a boom attached to a 
crane or other vehicle. Buckets are suspended from a cable and dippers 
are fixed directly to the boom. Typically a crane drops the bucket into 
the soil or through the water column to the bottom. The bucket is 
filled with soil or sediments and lifted from the water or off the 
ground and

[[Page 50112]]

dropped or sidecast on adjacent mounds or placed directly into vehicles 
and moved to another disposal site.
    Bucket dredging for ditching and channelization projects typically 
is done with a deadline or other equipment of this kind. They operate 
by dropping the bucket into the soil or sediment and then dragging it 
through the soil or sediment until it is filled. In many stream 
channelization projects, bulldozers push sediments, including cobble, 
gravel, and sand, from a particular place in the stream to another 
location. The bulldozer blade is lowered into the bottom of the stream 
and moved forward, which pushes sediment to another location in the 
stream or to an upland area. Because of the soil movement and 
relocation of material, the use of bulldozers, deadlines, and backhoes, 
or other equipment of this kind will almost always result in discharges 
to waters of the U.S. For example, when a deadline or backhoe gathers 
dredged material, it displaces and redeposits soils and sediments to 
various distances from the initial excavation point. This type of 
displacement and redeposition also occurs as a bulldozer pushes 
sediments during a stream channelization project.
    The mechanized equipment used for excavation and channelization 
activities typically results in suspension and distribution of material 
into the water column where it raises turbidity levels and may release 
contaminants into the water column. The result is that toxics, metals 
and other pollutants that were buried in sediment, held by anaerobic 
soils, or taken up by submerged aquatic vegetation, can be released and 
distributed in the water column and become available to fish and other 
aquatic life and degrade water quality. In addition, the dredged 
material suspended in the water column can be carried far downstream 
from the excavation point by river, stream, ditch, or wetland current 
before it settles out.
    Wetlands perform a vital role in the hydrologic cycle by trapping 
sediment and toxic and nontoxic pollutants before discharging the water 
to rivers, streams or other water bodies. Deaton at 13; U.S. v. 
Riverside Bayview Homes, 474 U.S. 121 (1985) at 133-135; Office of 
Technology Assessment, U.S. Congress. 1984. Wetlands: Their Use and 
Regulation, at 48-50 (hereafter referred to as ``OTA''). Over time, 
many of these pollutants decompose, degrade or are absorbed by wetland 
vegetation. Deaton at 13; OTA Report at 48-49. A number of conditions 
allow wetland soils to immobilize trace and toxic metals, including an 
anaerobic reducing environment, neutral pH levels, and the presence of 
organic matter. W.J. Mitsch and J.G. Gosselink. 1986. Wetlands, at 
chapter 5. Gambrel, R.P. 1994. ``Trace and Toxic Metals in Wetlands: A 
Review.'' Journal of Environmental Quality 23: 883-891, 883. Anaerobic 
conditions occur when wetland soils are saturated by water. This is 
also true of lake, river, and stream bottoms. As available dissolved 
oxygen is consumed by microbial respiration in the soil, microbes use 
oxidized materials that offer alternate electron acceptors, such as 
nitrate, ferric iron, manganic manganese, and sulfate sulfur. This 
helps immobilize metals in wetland soils. Anaerobic bacterial action 
can also treat some toxics. For example, mercury can, under anaerobic 
conditions, be mediated in a wetland by sulfate reducing bacteria. C.H. 
Driscoll, J. Holsapple, C.L. Schofield and R Munson. 1998. ``The 
Chemistry and Transport of Mercury in a Small Wetland in the Adirondack 
Region of New York, USA.'' Biogeochemistry 40: 137-146. (For an 
additional discussion of factors affecting bioavailability of 
contaminants in sediment, see, U.S. Army Corps of Engineers, Waterways 
Experiment Station. 1991. Miscellaneous Paper D-91-2, Assessing 
Bioaccumulation in Aquatic Organisms Exposed to Contaminated 
Sediments).
    Wetland plants help attenuate the flow of surface waters and cause 
metal-contaminated particles to settle into sediment. The rhizomes and 
roots of the plants stabilize the wetland bottom, helping to transform 
it into a sink for toxics and contaminated sediment. A.S. Mungur, 
R.B.E. Shutes, D.M. Revitt and M.A. House. 1995. ``An Assessment of 
Metal Removal from Highway Runoff by a Natural Wetland.'' Water Science 
Technology Vol. 32, No. 3, 169-175. Water soluble metals, in 
particular, are easily dissolved into water and are readily taken up by 
wetland vegetation. Gambrel at 884-885.
    When a wetland system is disrupted by activities such as excavation 
and the dredged material is redeposited, the bonds that held toxics, 
heavy metals, and other pollutants can be broken, and pollutants can 
become mobile. ``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 at 13-14; OTA Report at 49 
(``Natural or manmade alterations of the wetland caused by * * * 
dredging and the like, could mobilize large quantities of toxic 
materials.'') Using a backhoe to dig a ditch and redeposit dredged 
material in a wetland, for example, can resuspend pollutants, such as 
toxics and heavy metals, that were held by the wetland soils in 
anaerobic conditions. Resuspending sediment creates turbidity, and 
suspended particles can settle out in new sites in the wetland or in 
downstream receiving waters. When sediment is resuspended it becomes 
biologically available again--fish and other organisms can ingest the 
sediment and heavy metals, toxics, pesticides, and other pollutants 
that were formerly trapped by the wetland. Pollutants that were 
formerly immobilized in wetland soils will be circulating in the food 
chain. Moreover, pollutants in sediment can become quite mobile when 
resuspended in water and break off from the sediment once the sediment 
is resuspended in water. U.S. Army Corps of Engineers, Waterways 
Experiment Station at 24-25.
    The longer the sediment is resuspended in water, the greater the 
opportunity for formerly trapped pollutants, such as PCBs, to break 
away from the sediment and enter into the water column. F.A. DiGiano, 
C.T. Miller and J.Yoon. 1993. ``Predicting Release of PCBs at Point of 
Dredging.'' Journal of Environmental Engineering Vol. 119, No. 1 72-87, 
86. The finer particles stay suspended in water much longer than 
heavier particles of sediment. In addition, such finer particles have a 
particular affinity for contaminants (e.g., toxics). U.S. Army Corps of 
Engineers, Waterways Experiment Station, supra, at 23. Ingestion of 
metals, toxics, pesticides, and other such pollutants can be extremely 
harmful to wildlife and humans, sometimes even in small concentrations. 
U.S. Environmental Protection Agency. 1998. National Sediment Quality 
Survey (EPA 823-R-97-006).
    When excavation and redeposit of dredged material suspends toxics, 
metals, dirt and other pollutants in the water column, suspended 
pollutants can be carried downstream by river, stream, ditch, or 
wetland current. When dredged material is excavated and redeposited in 
a wetland, pollutants that were previously buried or covered over can 
become exposed. When exposed to waterflow from the wetland, the newly 
exposed pollutants may be carried down the ditch and transported to new 
receiving waters or to other parts of the wetland. Similarly, when 
lakes, rivers, or streams are excavated and dredged material 
redeposited, toxics, metals and other pollutants that were buried in 
sediment and held by anaerobic soils are released to the water column 
and become available to fish and other aquatic life. The suspension and 
distribution of toxics and other pollutants in the water column 
degrades

[[Page 50113]]

water quality. Increased turbidity can also harm aquatic life, 
smothering fish nurseries, mussels and benthic life and killing 
submerged aquatic vegetation. The current can carry suspended sediment 
and dissolved pollutants downstream. This is particularly true for 
smaller particles of sediment and dissolved chemicals and other 
pollutants.
    Furthermore, when dredged material is sidecast, stockpiled, 
backfilled, or otherwise redeposited, the chemical bonds, that held 
pollutants in anaerobic wetland soils or lake, river, or stream 
bottoms, may be broken, releasing these pollutants. See, Wilson, 133 
F.3d at 273-74 (op. of Payne, J.) (describing how sidecasting dredged 
material threatens to release pollutants contained in sub-surface 
soil). See also, Gambrel at 883-884. When soils become oxidized, pH 
levels become acidic, and many metals, particularly inorganic 
compounds, change to more mobile forms and may become bioavailable to 
aquatic organisms. In addition, sediment containing metal complexes 
with large molecular-weight organic material will also become more 
mobile as organic matter is lost over time while sitting in the 
sidecast or other redeposited pile of dredged material. See, Gambrel at 
888. Furthermore, discharging dredged spoil into a wetland during 
excavation ``can degrade water quality by obstructing circulation 
patterns that flush large expanses of wetland systems, by interfering 
with the filtration function of wetlands, or by changing the aquifer 
recharge capability of a wetland.'' 40 CFR 230.41(b).
    When dredged material is redeposited, it is exposed to aerobic 
conditions, pH levels become acidic, microbial action changes, and, 
over time, its organic matter decomposes. In other words, the 
conditions which optimize the retention of trace and toxic metals by 
wetland soils--an anaerobic reducing environment, neutral pH levels, 
microbial action, and organic matter--are destroyed and toxics, heavy 
metals and other pollutants become available for transport. Thus, 
toxics, heavy metals, pesticides and other pollutants that were 
formerly trapped by wetland soils can become available to the aquatic 
environment.
    Finally, the impacts resulting from redeposit of dredged material 
are not limited to contaminated material alone. ``Indeed, several 
seemingly benign substances like rock, sand, cellar dirt, and 
biological materials are specifically designated as pollutants under 
the Clean Water Act. Congress had good reason to be concerned about the 
reintroduction of these materials into the waters of the United States, 
including the wetlands that are a part of those waters.'' Deaton at 13 
(citation omitted). ``Even in a pristine wetland or body of water, the 
discharge of dredged spoil, rock, sand, and biological materials 
threatens to increase the amount of suspended sediment, harming aquatic 
life.'' Deaton at 15. Such suspension and distribution of even clean 
material in the water column can adversely affect water quality and 
aquatic life due to increases in turbidity. U.S. Environmental 
Protection Agency. 1999. Protocol for Developing Sediment TMDLs, First 
Edition (EPA 841-B-99-004) at 2-1. Where currents are flowing, such as 
in streams and rivers, redeposited material can be transported 
downstream away from the point of excavation before settling on the 
bottom. Excavation and redeposit of material can also result in 
vertical redistribution of sediment layers by relocating underlying 
soil or sediments upwards to the top layer. This can produce polluting 
effects due to physical alteration of aquatic habitat, such as changes 
to the waterbody's substrate or its grain size distribution.
    Persons proposing to conduct activities subject to today's proposal 
may rebut the presumption that a regulable discharge of dredged 
material would occur by showing that the activity is planned and 
conducted so as to result only in incidental fallback. As we discussed 
in the May 10, 1999, rulemaking, incidental fallback ``returns dredged 
material virtually to the spot from which it came.'' NMA, 145 F.3d at 
1403; see also, NMA, 145 F.3d at 1401 (incidental fallback occurs 
``when redeposit takes place in substantially the same spot as the 
initial removal);'' see also, AMC, 951 F. Supp. at 270 (incidental 
fallback is ``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.'')
    However, as we discussed in section II of today's preamble, the 
exclusion for incidental fallback does not alter the well-settled 
doctrine, recognized in NMA, that many redeposits of dredged material 
in waters of the U.S. constitute a discharge of dredged material and 
therefore require a section 404 permit. See, 145 F.3d at 1405, n. 6 
(recognizing that ``a redeposit could be an addition to [a] new 
location and thus a discharge''). Deciding whether the presumption of 
discharge is rebutted will involve an evaluation based on the 
particular facts of each case. Persons planning to engage in mechanized 
landclearing, ditching, channelization, in-stream mining, or other 
mechanized excavation activity in waters of the U.S. who believe they 
can rebut the presumption that a regulable redeposit would occur should 
be prepared to show, if requested by the permitting authority, that any 
redeposits of dredged material in waters of the U.S. consist only of 
incidental fallback, and that no regulable discharges of dredged 
material have occurred. In evaluating such a claim, 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.
    Section 404(f)(1) of the Act, added in 1977, exempts certain 
specified discharges from the section 404 permit requirement, even 
though they would typically be in the form of small volume redeposits. 
However, section 404(f)(2) further provides for their regulation when 
``incidental to any activity having as its purpose bringing an area of 
the navigable waters into a use to which it was not previously subject, 
where the flow or circulation of navigable waters may be impaired or 
the reach of such waters be reduced.'' The language of section 
404(f)(2) and its legislative history show a Congressional concern that 
discharges incidental to the types of activities specified in section 
404(f)(2) should not escape regulation under section 404. As a result, 
when a redeposit is incidental to the types of activities specified in 
section 404(f)(2), it will be subject to particularly careful scrutiny 
by the agencies.
    Today's proposal would state 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. Current practice is to respond to requests for 
initial determinations regarding how or whether certain activities in 
waters of the U.S. are regulated. For example, interested parties may 
provide information to the Corps regarding the potential applicability 
of a nationwide permit in order to determine whether they should file 
an individual permit application. Parties also may provide the Corps

[[Page 50114]]

information regarding the potential applicability of the section 404(f) 
exemptions in order to determine whether they should file a permit 
application. Similarly, under today's proposal, project proponents 
could provide available information in advance to show the project is 
designed to result in only incidental fallback in order to determine if 
the presumption of a regulable discharge is rebutted. Such information 
might include field notes and still or video photography showing that 
the project as executed results only in incidental fallback.
    In response to the NMA decision, we amended our regulations on May 
10, 1999, to make clear that the term ``discharge of dredged material'' 
does not include ``incidental fallback.'' This would continue to be the 
case under the proposal. Under the current regulations, the 
determination of whether an activity results in a regulable discharge 
of dredged material or non-regulable ``incidental fallback'' is made on 
a case-by-case basis. This also would continue to be the case under 
today's proposal. We expect the economic effects of today's proposal to 
be small. It would not alter or enlarge section 404 program 
jurisdiction and therefore would 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 proposed rule would identify 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. Under the proposal, project 
proponents may rebut the presumption of discharge, if requested by the 
permitting authority, by demonstrating the activity was designed and 
conducted to avoid regulable discharges. They also may ask the 
permitting authority for an advance determination on whether the 
presumption of a regulable discharge is rebutted for their project. 
Because the proposal would not change program jurisdiction, continues 
to provide that incidental fallback is not subject to regulation, and 
does not establish new procedures or record keeping requirements, we 
believe that the economic effects of today's proposal would be small.

IV. Other Federal Statutory and Regulatory Authorities

    Other relevant Federal statutory and regulatory authorities include 
section 10 of the Rivers and Harbors Act of 1899, as well as section 
402 of the CWA. Those authorities are unaffected by the NMA decision, 
and nothing in today's proposal is intended to alter their potential 
applicability to activities addressed by today's proposal.
    Section 10 of the Rivers and Harbors Act generally requires a 
permit from the Corps ``for structures and/or work in or affecting 
navigable waters of the United States.'' 33 CFR 322.3(a). ``Navigable 
waters of the United States'' generally consist of the territorial sea, 
tidal waters, other waters used (now or in the past), or reasonably 
susceptible to use, in carrying goods in interstate commerce (see 33 
CFR part 329 for a complete definition of ``navigable waters of the 
United States.''). In contrast, the CWA's geographic reach extends to 
the maximum extent allowable under the Commerce Clause, reflecting a 
Congressional intent that it ``be given the broadest possible 
constitutional interpretation.'' S. Rept. 1236, 92d Cong., 2d Sess. 144 
(1972) (see 33 CFR 328.3 and 40 CFR 230.3(s) for a complete definition 
of waters of the U.S. which are subject to the CWA). However, because 
section 10 applies to structures or work in or affecting ``navigable 
waters of the United States,'' activities such as ditching or 
channelization work in ``navigable waters of the United States,'' or 
affecting their navigable capacity, is subject to regulation under 
section 10 of the Rivers and Harbors Act regardless of whether they 
result in a ``discharge of dredged material.'' For further information 
on potential applicability of section 10 of the Rivers and Harbor Act, 
project proponents should contact their 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 helpline at 
800-832-7828.
    Storm water discharges resulting from construction activities are 
subject to regulation under the CWA section 402 (National Pollutant 
Discharge Elimination System or ``NPDES'') permitting program. On 
November 16, 1990, EPA promulgated ``Phase I'' storm water regulations 
(55 FR 47990) which require, among other things, NPDES permits for 
storm water discharges into a municipal separate storm water sewer 
system (MS4) or waters of the U.S. when associated with construction 
activity disturbing at least five acres of land. This requirement also 
applies to discharges from construction sites that are less than five 
acres if they are part of a larger common plan of development or sale 
disturbing a total of five acres or greater. These Phase I requirements 
are currently in effect.
    On December 8, 1999, EPA promulgated additional (``Phase II'') 
revisions to the storm water permitting regulations (64 FR 68721) that, 
among other things, require an NPDES permit for storm water discharges 
into a MS4 or waters of the U.S. when associated with construction site 
activities disturbing land equal to or greater than one acre and less 
than five acres, unless waived by the NPDES permitting authority. 
Construction activity disturbing less than one acre would also require 
a permit if part of a larger common plan of development or sale 
disturbing a total of one acre or greater, or if individually 
designated for permit coverage by the NPDES permitting authority. NPDES 
permitting authorities may waive the Phase II construction activity 
requirements where little or no rainfall is expected during the period 
of construction or when analysis indicates that controls on 
construction site discharges are not needed to protect water quality. 
Waivers are not available for construction activity subject to the 
phase I requirements (e.g., disturbing five acres or greater). EPA 
expects the storm water permitting requirements for Phase II 
construction activity to be implemented through general permits similar 
to those in place for Phase I. NPDES permitting authorities will issue 
these general permits on or before December 9, 2002. Regulated 
construction operators must apply for permit coverage within 90 days of 
general permit issuance. Further information regarding the storm water 
permitting regulations may be obtained from EPA's website at http://www.epa.gov/owm/sw/about/index.htm.

V. 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

[[Page 50115]]

adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or 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.'' As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be 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.''
    Under section 6 of Executive Order 13132, we may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or we consult 
with State and local officials early in the process of developing the 
proposed regulation. We also may not issue a regulation that has 
federalism implications and that preempts State law, unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed rule does not have federalism implications. As 
explained in section III, the proposal would not alter or enlarge 
section 404 program jurisdiction and therefore would 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 proposed rule would identify 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, the requirements of section 6 of the 
Executive Order do not apply to this rule.

D. Regulatory Flexibility Act (RFA) as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, a small entity is defined as: (1) A small business based on 
SBA size standards; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district, or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, we certify that this action will not have a signficant 
economic impact on a substantial number of small entities. As explained 
in section III, the proposal would not alter or enlarge section 404 
program jurisdiction and therefore would 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 proposed rule would 
identify 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 the information-
sharing contemplated for seeking to rebut the presumption under today's 
proposal would result in significant costs.
    We continue to be interested in the potential impacts of the rule 
on small entities and welcome comments on issues related to such 
impacts.

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 section III, the proposal would 
not alter or enlarge section 404 program jurisdiction and therefore 
would 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 proposed rule would identify what

[[Page 50116]]

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 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 proposed rulemaking does not involve technical standards. 
Therefore, we are not considering the use of any voluntary consensus 
standards. We welcome comments on this aspect of the proposed 
rulemaking and specifically, invite the public to identify potential 
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

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) is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) 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 both 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 regulation 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 section III, the proposal would 
not alter or enlarge section 404 program jurisdiction and therefore 
would 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 proposed rule would identify 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, that significantly or uniquely affects the 
communities of Indian Tribal governments, and that 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 OMB, 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 section III, the 
proposal would not alter or enlarge section 404 program jurisdiction 
and therefore would 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 proposed rule would identify 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. Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require Federal government agencies to write all rules in plain 
language. We invite your comments on ways to make this proposed rule 
easier to understand. For example:
     Have we organized the material to suit your needs?
     Are the requirements in the rule clearly stated?
     Does the rule/preamble language contain technical language 
or jargon that isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule/preamble easier to 
understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?

J. 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 preliminary determination that today's proposed 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). Among the 
reasons for this conclusion is the fact that the Corps prepares 
appropriate NEPA documents, when required, covering specific permit 
situations. The implementation of the procedures prescribed in this 
proposed regulation 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. Accordingly, the Corps expects to 
prepare an environmental assessment (EA) for the rule.

List of Subjects

33 CFR Part 323

    Water pollution control, Waterways.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water 
pollution control.

[[Page 50117]]

Corps of Engineers

33 CFR Chapter II

    Accordingly, as set forth in the preamble 33 CFR part 323 is 
proposed to be 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 Sec. 323.2 as follows:
    a. In paragraph (d)(1) introductory text, remove the words 
``paragraph (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 ``paragraph 
(d)(5) and (d)(6)'', remove paragraph (d)(4)(iii), and redesignate 
paragraph (d)(4)(iv) as new paragraph (d)(4)(iii).
    The addition reads as follows:


Sec. 323.2  Definitions.

* * * * *
    (d) * * *
    (2) A discharge of dredged material shall be presumed to result 
from mechanized landclearing, ditching, channelization, instream 
mining, or other mechanized excavation activity in waters of the United 
States. This presumption is rebutted if the party proposing such an 
activity demonstrates that only incidental fallback will result from 
its activity.
* * * * *

    Dated: August 9, 2000.
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 
proposed to be 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 Sec. 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 ``paragraph (5) and (6)'', remove 
paragraph (4)(iii), and redesignate paragraph (4)(iv) as new paragraph 
(4)(iii).
    The addition reads as follows:


Sec. 232.2  Definitions.

* * * * *
    Discharge of dredged material * * *
    (2) A discharge of dredged material shall be presumed to result 
from mechanized landclearing, ditching, channelization, in-stream 
mining, or other mechanized excavation activity in waters of the United 
States. This presumption is rebutted if the party proposing such an 
activity demonstrates that only incidental fallback will result from 
its activity.
* * * * *

    Dated: August 8, 2000.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[FR Doc. 00-20792 Filed 8-15-00; 8:45 am]
BILLING CODE 6560-50-U