[Federal Register Volume 66, Number 11 (Wednesday, January 17, 2001)]
[Rules and Regulations]
[Pages 4550-4575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1179]



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Part X





Department of Defense





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Department of the Army, Corps of Engineers



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33 CFR Part 323





Environmental Protection Agency





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40 CFR Part 232



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

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

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 323

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 232

[FRL-6933-2]


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

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

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental 
Protection Agency (EPA) are promulgating a final rule to amend our 
Clean Water Act (CWA) section 404 regulations defining the term 
``discharge of dredged material.'' Today's final action is being taken 
to follow-up on our earlier proposed rulemaking of August 16, 2000, in 
which we proposed to amend the regulations to establish a rebuttable 
presumption that mechanized landclearing, ditching, channelization, in-
stream mining, or other mechanized excavation activity in waters of the 
U.S. result in more than incidental fallback, and thus involve a 
regulable discharge of dredged material.
    As a result of the comments we received, today's final rule 
reflects several modifications from the proposal. In response to 
concerns raised by some commenters that the proposal would have shifted 
the burden of proof to the regulated community as to what constitutes a 
regulable discharge, we have revised the language to make clear that 
this is not the case. Additionally, we received numerous comments 
requesting that we provide a definition of ``incidental fallback'' in 
the regulatory language. In response, today's final rule does contain 
such a definition, which is consistent with past preamble discussions 
of that issue and is drawn from language contained in the relevant 
court decisions describing that term. Today's final rule will both 
enhance protection of the Nation's aquatic resources, including 
wetlands, and provide increased certainty and predictability for the 
regulated community. At the same time, it continues to allow for case-
by-case evaluations as to whether a regulable discharge of dredged 
material results from a particular activity, thus retaining necessary 
program flexibility to address the various fact-specific situations 
that are presented.

EFFECTIVE DATE: February 16, 2001.

FOR FURTHER INFORMATION CONTACT: For information on today's rule, 
contact either Mr. Mike Smith, U.S. Army Corps of Engineers, ATTN CECW-
OR, 441 ``G'' Street, NW, Washington, DC 20314-1000, phone: (202) 761-
4598, or Mr. John Lishman, U.S. Environmental Protection Agency, Office 
of Wetlands, Oceans and Watersheds (4502F), 1200 Pennsylvania Avenue 
N.W., Washington, DC 20460, phone: (202) 260-9180.

SUPPLEMENTARY INFORMATION:

I. Potentially Regulated Entities

    Persons or entities that discharge material dredged or excavated 
from waters of the U.S. could be regulated by today's rule. The CWA 
generally prohibits the discharge of pollutants into waters of the U.S. 
without a permit issued by EPA or a State approved by EPA under section 
402 of the Act, or, in the case of dredged or fill material, by the 
Corps or an approved State under section 404 of the Act. Today's rule 
addresses the CWA section 404 program's definition of ``discharge of 
dredged material,'' which is important for determining whether a 
particular discharge is subject to regulation under CWA section 404. 
Today's rule sets forth the agencies' expectations as to the types of 
activities that are likely to result in a discharge of dredged material 
subject to CWA section 404. Examples of entities potentially regulated 
include:

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

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that are likely to be regulated by 
this action. This table lists the types of entities that we are now 
aware of that could potentially be regulated by this action. Other 
types of entities not listed in the table could also be regulated. To 
determine whether your organization or its activities are regulated by 
this action, you should carefully examine EPA's applicability criteria 
in section 230.2 of Title 40 of the Code of Federal Regulations, the 
Corps regulations at part 323 of Title 33 of the Code of Federal 
Regulations, and the discussion in section II of today's preamble. If 
you have questions regarding the applicability of this action to a 
particular entity, consult one of the persons listed in the preceding 
FOR FURTHER INFORMATION CONTACT section.

II. Background

A. Plain Language

    In compliance with President Clinton's June 1, 1998, Executive 
Memorandum on Plain Language in government writing, this preamble is 
written using plain language. Thus, the use of ``we'' in this action 
refers to EPA and the U.S. Army Corps of Engineers (Corps), and the use 
of ``you'' refers to the reader.

B. Overview of Previous Rulemaking Activities and Related Litigation

    Section 404 of the CWA authorizes the Corps (or a State with an 
approved section 404 permitting program) to issue permits for the 
discharge of dredged or fill material into waters of the U.S. Two 
States (New Jersey and Michigan) have assumed the CWA section 404 
permitting program. On August 25, 1993 (58 FR 45008), we issued a 
regulation (the ``Tulloch Rule'') that defined the

[[Page 4551]]

term ``discharge of dredged material'' as including ``any addition, 
including any redeposit, of dredged material, including excavated 
material, into waters of the U.S. which is incidental to any activity, 
including mechanized landclearing, ditching, channelization, or other 
excavation that destroys or degrades waters of the U.S.'' The American 
Mining Congress and several other trade associations challenged the 
revised definition of the term ``discharge of dredged material,'' and 
on January 23, 1997, the U.S. District Court for the District of 
Columbia ruled that the regulation exceeded our authority under the CWA 
because it impermissibly regulated ``incidental fallback'' of dredged 
material, and enjoined us from applying or enforcing the regulation. 
That ruling was affirmed on June 19, 1998, by the U.S. Court of Appeals 
for the District of Columbia Circuit. Americian Mining Congress v. 
United States Army Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997) 
(``AMC''); aff'd sub nom, National Mining Association v. United States 
Army Corps of Engineers, 145 F.3d 1339 (D.C.Cir. 1998) (``NMA'').
    On May 10, 1999, we issued a final rule modifying our definition of 
``discharge of dredged material'' in order to respond to the Court of 
Appeals' holding in NMA, and to ensure compliance with the District 
Court's injunction (64 FR 25120). That rule made those changes 
necessary to conform the regulations to the courts' decisions, 
primarily by modifying the definition of ``discharge of dredged 
material'' to expressly exclude regulation of ``incidental fallback.''
    The NMA court did not find that all redeposits are unregulable, and 
recognized that redeposits at various distances from the point of 
removal are properly the subject of regulation under the CWA. As 
explained in the preamble to the May 10, 1999, rulemaking, our 
determination of whether a particular redeposit of dredged material in 
waters of the U.S. requires a section 404 permit would be done on a 
case-by-case basis, consistent with our CWA authorities and governing 
case law. The preamble to that rulemaking also described and summarized 
relevant case law (see 64 FR 25121), for example, noting that the NMA 
decision indicates incidental fallback ``. . . returns dredged material 
virtually to the spot from which it came'' (145 F.3d at 1403) and also 
describes incidental fallback as occurring ``when redeposit takes place 
in substantially the same spot as the initial removal.'' 145 F.3d at 
1401. The NMA court also noted that ``incidental fallback'' occurs when 
a bucket used to excavate material from the bottom of a river, stream, 
or wetland is raised and soils or sediments fall from the bucket back 
into the water; the court further noted that ``fallback and other 
redeposits'' occur during mechanized landclearing, when bulldozers and 
loaders scrape or displace wetland soil as well as during ditching and 
channelization when draglines or backhoes are dragged through soils and 
sediments. 145 F.3d at 1403. The preamble also noted that the district 
court in AMC described incidental fallback as ``the incidental soil 
movement from excavation, such as the soil that is disturbed when dirt 
is shoveled, or the back-spill that comes off a bucket and falls back 
into the same place from which it was removed.'' 951 F.Supp. at 270.
    The NMA Court noted that the CWA ``sets out no bright line between 
incidental fallback on the one hand and regulable redeposits on the 
other'' and that ``a reasoned attempt to draw such a line would merit 
considerable deference.'' (145 F.3d at 1405). The preamble to our May 
10, 1999, rulemaking stated that we would be undertaking additional 
notice and comment rulemaking in furtherance of the CWA's objective to 
``restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters.''
    Subsequent to our May 10, 1999, rulemaking the National Association 
of Homebuilders (NAHB) and others filed a motion with the district 
court that issued the AMC injunction to compel compliance with that 
injunction. The NAHB motion, among other things, asserted that the May 
10, 1999, rule violated the court's injunction by asserting unqualified 
authority to regulate mechanized landclearing. A decision on that 
motion was still pending at the time we issued our August 16, 2000 
proposal (65 FR 50108) to establish a rebuttable presumption that 
mechanized landclearing, ditching, channelization, in-stream mining, or 
other mechanized excavation activity in waters of the U.S. will result 
in regulable discharges of dredged material.
    As explained in the preamble, the proposed rule set forth:

    * * * our expectation that, absent a demonstration to the 
contrary, the activities addressed in the proposed rule typically 
will result in more than incidental fallback and thus result in 
regulable redeposits of dredged material. It would not, however, 
establish a new formal process or new record keeping requirements, 
and Section 404 permitting and application requirements would 
continue to apply only to regulable discharges and not to incidental 
fallback.

65 FR 50113.
    As with today's final rule, the proposal addressed only matters 
related to the ``discharge of dredged material'' under section 404 of 
the CWA. We note that other regulatory authorities may be applicable to 
activities in waters of the U.S., including stormwater permitting 
requirements under CWA section 402, and, in the case of ``navigable 
waters of the U.S.'' (so-called navigable in fact waters), section 10 
of the Rivers and Harbors Act of 1899. Readers should refer to the 
preamble of the proposal for further information on those authorities 
(65 FR 50114).
    The proposed rule had a 60 day comment period, which ended on 
October 16, 2000. While that public comment period was still open, on 
September 13, 2000, the district court denied NAHB's motion to compel 
compliance with the AMC injunction, finding that our earlier May 10, 
1999, rule was consistent with its decision and injunction, and the 
decision of the D.C. Circuit in NMA. American Mining Congress v. U.S. 
Army Corps of Engineers, Civil Action No. 93-1754 SSH (D.D.C. September 
13, 2000) (hereafter referred to as ``NAHB Motion Decision'').
    In that decision the court found that, ``Inasmuch as this Court in 
AMC, and the Court of Appeals in NMA, invalidated the Tulloch Rule 
because it regulated incidental fallback, the Court's order enjoining 
the agencies from applying or enforcing the Tulloch Rule must be 
understood to bar the agencies from regulating incidental fallback.'' 
NAHB Motion Decision, slip op. at 8-9. The court then went on to 
determine that by making clear that the agencies may not exercise 
section 404 jurisdiction over redeposits of dredged material to the 
extent that the redeposits involve only incidental fallback, the May 
10, 1999, rulemaking did not violate the court's injunction and is 
consistent with the decisions in AMC and NMA. Id. at 10-11.

C. Discussion of Final Rule

    We received approximately 9,650 comments on the August 16, 2000, 
proposal (because the numbers given are rounded off, we refer to them 
as ``approximate.'') Approximately 9,500 were various types of 
individual or form letters from the general public expressing overall 
support for the rule or requesting it be strengthened. We received 
approximately 150 comments from various types of organizations, state 
or local agencies, or commercial entities, 75 of which provided 
detailed

[[Page 4552]]

comments, with approximately 50 of these expressing opposition to the 
rule. Organizations opposing the rule were primarily construction and 
development interests, mining and commerce interests, as well as local 
agencies or water districts with agricultural, flood control, or 
utility interests. These commenters often expressed the view that the 
proposal was inconsistent with the AMC and NMA opinions and the CWA. 
These comments also often expressed concern that the rebuttable 
presumption would be difficult or impossible to rebut and should be 
removed from the rule, and also frequently stated that a definition of 
incidental fallback was necessary, with many expressing preference for 
a ``brightline'' definition.
    Organizations supporting the proposal or its strengthening included 
state and local natural resource and environmental protection agencies 
and environmental organizations. In addition, one detailed letter from 
a group of wetland scientists associated with a variety of institutions 
was received, and expressed support for the proposed rule and its 
strengthening. Commenters favoring the rule or its strengthening 
generally believed that the proposed rule's presumption that mechanized 
landclearing, ditching, channelization, in-stream mining, or other 
mechanized excavation activity in waters of the U.S. result in more 
than incidental fallback, and thus involve a regulable discharge of 
dredged material, was appropriate. Many of these commenters, especially 
environmental organizations, requested that the rule be strengthened in 
a number of ways, particularly by identifying certain activities as 
always requiring a permit, and making clear that if chemical 
constituents are released into the water column or if material is moved 
in a way that permits its more ready erosion and movement downstream, a 
regulable discharge occurs. In addition, many of the commenters 
favoring the proposed rule or requesting that it be strengthened also 
expressed the view that it should define incidental fallback.
    We have carefully considered all the comments received on the 
proposal in developing today's final rule. A detailed discussion of 
those comments and our responses is set out in section III of today's 
preamble.
    Like the proposal, today's rule modifies our definition of 
``discharge of dredged material'' in order to clarify what types of 
activities we believe are likely to result in regulable discharges. As 
described in the preamble to the proposed rule (65 FR 50111-50113), 
based on the nature of the equipment, we believe that the use of 
mechanized earth moving equipment to conduct landclearing, ditching, 
channelization, in-stream mining, or other mechanized excavation 
activity in waters of the U.S. is likely to result in regulable 
discharges of dredged material.
    However, in response to comments we received expressing concern 
that the proposal would result in a shift in the burden of proof and 
impose undue burdens on project proponents to ``prove a negative,'' we 
have made a number of changes to clarify that this is not our intent 
and will not be a result of this rule. Because these concerns primarily 
appeared to arise out of the proposed rule's use of a rebuttable 
presumption formulation, we have redrafted the rule language to 
eliminate use of a rebuttable presumption.
    As we had explained in the proposed rule preamble, the proposal was 
intended to express our expectation that the activities in question 
typically result in regulable discharges, not to create a formal new 
process or record keeping requirements (65 FR 50113). The rule now 
provides that the agencies regard the use of mechanized earth-moving 
equipment to conduct landclearing, ditching, channelization, in-stream 
mining or other earth-moving activity in waters of the U.S. as 
resulting in a discharge of dredged material unless project-specific 
evidence shows that the activity results in only incidental fallback
    By no longer employing a rebuttable presumption, we believe it is 
more evident that we are not creating a new process or altering 
existing burdens under the CWA to show a regulable discharge of dredged 
material has occurred. To make this point unmistakably clear, we also 
have added a new sentence to the rule language that expressly provides 
the rule does not and is not intended to shift any burden in any 
administrative or judicial proceeding under the CWA. In addition, the 
rule language has been clarified to make it more evident that we will 
not look to project proponents alone to provide information that only 
incidental fallback results. Thus, the rule language now refers to 
``project-specific evidence show[ing] that the activity results in only 
incidental fallback.'' While this might consist in large part of 
information from project proponents, we also will look to all available 
information, such as that in agency project files or information gained 
from site visits, when determining if a discharge of dredged material 
results.
    We also received a number of comments questioning how the 
presumption contained in the proposed rule might apply to particular 
equipment, or asserting that the presumption in the proposal was too 
broad. We thus are clarifying in the final rule language itself that we 
are addressing mechanized ``earth-moving'' equipment (e.g., bulldozers, 
graders, backhoes, bucket dredges, and the like). Earth-moving 
equipment is designed to excavate or move about large volumes of earth, 
and we believe it is reasonable and appropriate for the agencies to 
view the use of such equipment in waters of the U.S. as resulting in a 
discharge of dredged material unless there is case specific information 
to the contrary. The administrative record of today's rule contains 
additional information on the nature of this equipment and its 
operation.
    We received a large number of comments, both from those opposed to 
the proposed rule, as well as those supporting the proposal (or its 
strengthening), requesting us to provide a definition of ``incidental 
fallback.'' The proposed rule had not done so, instead providing 
preamble discussion of the relevant case law addressing that term, as 
well as referring readers to the preamble to our earlier May 10, 1999, 
rule (65 FR 50109-50110; 64 FR 25121). Subsequent to the proposal, as 
many of the commenters opposed to the proposal noted, the court, in its 
decision on the NAHB motion to compel compliance with the AMC court's 
injunction, cautioned against parsing the AMC and NMA language to 
render an overly narrow definition of incidental fallback. NAHB Motion 
Decision, slip opinion 12-14.
    In light of numerous comments requesting that a definition of 
incidental fallback be included in the regulations, and consistent with 
our preamble discussions of relevant case law and the more recent 
discussion in the court's NAHB Motion Decision, we have provided a 
descriptive definition in the final rule. That language, which is based 
on the AMC and NMA, cases and the NAHB Motion Decision, provides that:

    Incidental fallback is the redeposit of small volumes of dredged 
material that is incidental to excavation activity in waters of the 
United States when such material falls back to substantially the 
same place as the initial removal. Examples of incidental fallback 
include soil that is disturbed when dirt is shoveled and the back-
spill that comes off a bucket when such small volume of soil or dirt 
falls into substantially the same place from which it was initially 
removed.

    This language is fully consistent with the spirit and intent of 
those decisions. As noted in the AMC decision, incidental fallback 
involves ``incidental soil movement from excavation'' (951

[[Page 4553]]

F.Supp. 270); thus the definition in today's rule refers to the 
redeposit of small volumes of dredged material incidental to excavation 
activities. (See also NMA, 145 F.3d at 1404 (the statutory term 
``addition'' does not cover the situation where material is removed 
``and a small portion of it happens to fall back'')). The rule language 
refers to ``incidental fallback'' as returning dredged material to 
``substantially the same place'' from which it came, a formulation 
consistent with the AMC and NMA decisions. AMC, 951 F.Supp. at 270; 
NMA, 145 F.3d. at 1403; see also, NAHB Motion Decision at 13. The 
examples of incidental fallback given in the rule's definition are 
drawn from the AMC decision. See, AMC, 951 F.Supp. at 270. We, 
therefore, believe the definition reflects an objective and good faith 
reading of the AMC and NMA decisions. See, NAHB Motion Decision, slip 
op. at 14.
    We believe today's rule both ensures environmental protection 
consistent with CWA authorities and increases regulatory certainty in a 
manner fully consistent with the AMC and NMA decisions and the district 
court injunction. This has been accomplished through regulatory 
language that serves to put agency staff and the regulated community on 
notice that absent information to the contrary, it is our expectation 
that the use of mechanized earth moving equipment to conduct 
landclearing, ditching, channelization, in-stream mining, or other 
mechanized excavation activity in waters of the U.S. is likely to 
result in discharges of dredged material. In addition, in response to 
comments, and in order to provide a descriptive standard of what 
constitutes non-regulable incidental fallback, we have provided in the 
rule a descriptive definition of that term which we believe to be fully 
consistent with an objective and good faith reading of the AMC, NMA, 
and NAHB Motion decisions.
    At the same time, today's rule is not unnecessarily prescriptive 
and still allows for the case-by-case consideration of whether a 
discharge results. In making that determination, the agencies will 
consider any available information on project plan or design, as well 
as other information, such as site visits or field observations, during 
and after project execution. Information which we will consider 
includes that from project proponents, as well as other available 
information.
    In determining if a regulable discharge of dredged material occurs, 
we will carefully evaluate whether there has been movement of dredged 
material away from the place of initial removal. In doing so, we will 
look to see if earth-moving equipment pushes or relocates dredged 
material beyond the place of excavation, as well as whether material is 
suspended or disturbed such that it is moved by currents and resettles 
beyond the place of initial removal in such volume as to constitute 
other than incidental fallback, and thus be a regulable discharge. See 
e.g., United States v. M.C.C. of Florida, 722 F.2d 1501 (11th Cir. 
1985), vacated on other grounds, 481 U.S. 1034 (1987), readopted in 
relevant part on remand, 848 F.2d 1133 (11th Cir. 1988) (resettling of 
material resulting from propeller rotation onto adjacent seagrass beds 
is jurisdictional). In appropriate situations, we also will include 
consideration of whether the operation results in the release of 
pollutants to the environment that were formerly physically or 
chemically bound up and sequestered from the environment prior to the 
dredging or excavation of the sediments. See e.g., United States v. 
Deaton, 209 F. 3d 331 (4th Cir. 2000) at 335-336 (discussing release of 
pollutants in determining sidecasting to be jurisdictional). In 
considering whether material is relocated, we will look at both 
horizontal and vertical relocation. For example, sidecasting, which 
involves horizontal relocation to the side of the ditch, is a regulable 
discharge. See e.g., Deaton, supra; NAHB Motion Decision at n. 3. 
Similarly, where activities involve the vertical relocation of the 
material, such as occurs in backfilling of trenches, a regulable 
discharge results. See e.g., (United States v. Mango, 997 F. Supp. 264, 
285 (N.D.N.Y. 1998), affirmed in part, reversed in part on other 
grounds, 199 F.3d 85 (2d Cir. 1999); see, Iroquois Gas Transmission 
System v. FERC, 145 F.3d 398 at 402 (2nd Cir. 1998) (backfilling of 
trenches is jurisdictional).
    We also will take into account the amount or volume of material 
that is redeposited. Incidental fallback at issue in AMC and NMA was 
the small-volume fallback from excavation. Similarly, today's rule 
defines incidental fallback as the ``small volumes of dredged 
material'' falling back to substantially the same place as the initial 
removal. Therefore, we will consider the volume redeposited in deciding 
whether the activity results in only incidental fallback.
    Thus, the determination of whether an activity results in a 
regulable discharge of dredged material or produces only incidental 
fallback involves consideration of the location and the amount of the 
redeposit. Because of the fact-specific nature of the assessment of 
these factors, and their interrelated nature, we do not believe it to 
be feasible or appropriate to establish hard and fast cut-off points 
for each of these factors. Rather, the totality of the factors will be 
considered in each case.
    Finally, we note that the proposed rule would have removed existing 
paragraph 3(iii) from the Corps' regulations at 33 CFR 323.2(d) and the 
counterpart EPA regulation at 40 CFR 232.2. Those paragraphs contained 
identical ``grandfather'' provisions for certain activities to be 
completed by August 24, 1995, and were proposed for deletion as being 
outdated. 65 FR 501211. Today's final rule, consistent with the 
original proposal, removes those paragraphs from the regulations.

III. Discussion of Comments

A. Legality of Proposal

1. Proposal as Inconsistent With NMA and Ruling on NAHB Motion to 
Compel
    A number of commenters contended that the proposed rule conflicts 
with the rulings of the courts in AMC, NMA, and the NAHB Motion 
Decision. Among other things, they characterized the rule as an ``end-
run'' around the nationwide injunction affirmed in NMA; ``an attempt to 
re-promulgate [the 1993 Tulloch Rule];'' and an effort to regulate the 
activities that the NMA court said were not regulable. In particular, 
these commenters characterized the NMA decision as holding that 
regulating any redeposit of dredged material during removal activities 
outruns the section 404 provisions of the CWA and that the agencies may 
only regulate activities that cause a net addition to waters of the 
U.S. They then argued that the rule is at odds with that holding. In 
addition, they asserted that the presumption would result in regulating 
effects as opposed to discharges and would make all excavation and 
landclearing activities regulated. Several commenters also noted that 
using a presumption does not address the NMA court's instruction that 
the agencies attempt to draw a bright line between what is a regulable 
redeposit versus non regulated incidental fallback.
    As discussed in more detail in the sections below, we believe that 
the changes that we have made in today's rule address such concerns. 
Moreover, we do not agree with the legal analysis in many of the 
comments. In a number of respects, we believe the commenters have 
simply read the NMA decision too broadly. The court in NMA stated: 
``[W]e do not hold that the Corps may not legally regulate some forms 
of redeposit under its section 404 permitting authority. We hold only 
that by asserting jurisdiction over `any

[[Page 4554]]

redeposit,' including incidental fallback, the Tulloch Rule outruns the 
Corps' statutory authority.'' 145 F. 3d at 1405. Thus, the court 
explicitly recognized that some redeposits are regulable and indicated 
that the agencies' attempt to draw a line between incidental fallback 
and regulable redeposits would be entitled to deference. The court also 
acknowledged that sidecasting, the placement of removed soil in a 
wetland some distance from the point of removal, has always been 
regulated by the agencies; and finally, it recognized that removal of 
dirt and gravel from a streambed and its subsequent redeposit in the 
waterway after segregation of minerals constitutes an addition.
    The court's acceptance of these principles undercuts the conclusion 
suggested by some that its statement that ``incidental fallback 
represents a net withdrawal, not an addition'' must be read to mean 
that activities that involve removal of material can never constitute a 
discharge. Similarly, the court's statement that ``Congress could not 
have contemplated that the attempted removal of 100 tons [of dredged 
spoil] could constitute an addition simply because only 99 tons were 
actually taken away'' must also be reconciled with the court's clear 
recognition that some redeposits constitute an addition.
    In addition, the Court's NAHB Motion Decision supports the 
agencies' view that a more narrow reading of the NMA decision than some 
commenters are advocating is correct. The court stated:

    Inasmuch as this Court in AMC, and the Court of Appeals in NMA, 
invalidated the Tulloch Rule because it regulated incidental 
fallback, the Court's order enjoining the agencies from applying or 
enforcing the Tulloch Rule must be understood to bar the agencies 
from regulating incidental fallback [footnote omitted] * * * The May 
10th Rule is facially consistent with the Court's injunction because 
it eliminates Sec. 404 jurisdiction over incidental fallback, and 
removes the language asserting jurisdiction over ``any'' redeposit 
of dredged material. The rule makes clear that the agencies may not 
exercise Sec. 404 jurisdiction over redeposits of dredged material 
to the extent that the redeposits involve only incidental fallback 
[citation omitted] (emphasis added).

Court's Denial of Motion to Compel, at 9-10.
    Thus, the sweeping claims that ``any redeposit'' and all removal 
activities are beyond the scope of the CWA can not be substantiated 
based on NMA or other existing law. Today's rule provides a definition 
of ``incidental fallback'' that adheres to the judicial guidance 
provided in the AMC and NMA cases and the NAHB Motion Decision, while 
making clear to the public the types of activities that we believe are 
properly regulated.
    a. Excavation not covered. The contention that excavation and other 
removal activities can never be regulated fails to recognize that 
``discharges of pollutants'' can occur during removal activities even 
where the ultimate goal is withdrawal of material. That the CWA 
definition of ``pollutants'' does not include ``incidental fallback 
from dredging operations'' is of no significance, contrary to the 
suggestion of one commenter, because it does include ``dredged spoil.'' 
Several commenters referenced dictionary definitions of ``excavate'' 
and ``discharge'' to buttress their view that a removal activity can 
not involve a discharge. One commenter, in particular, argued that 
``discharge'' denotes an intentional act, and that redeposits from 
excavation activity may not be regulated because they do not involve an 
intentional act. These definitions, however, do not indicate whether, 
in a given situation, pollutants were added to waters of the U.S. 
within the meaning of the CWA, the only issue we are concerned with 
here. First, as indicated in section III. A. 4 of this preamble, there 
is no support under the CWA for the position that a discharge must be 
an intentional act. In addition, as indicated in the preamble to the 
proposed rule, as a general matter, excavation and other earth-moving 
activities that are undertaken using mechanized earth-moving equipment 
typically result in the addition of a pollutant to navigable waters 
because the nature of such equipment is to move large volumes of 
material within and around the excavation site.
    The court in NMA also recognized that redeposits associated with 
earth-moving activities could be regulated. (``But we do not hold that 
the Corps may not legally regulate some forms of redeposit under its 
section 404 permitting authority.'' 145 F. 3d at 1405.). As described 
in the preamble to the proposed rule, the machinery used for 
excavation, mechanized landclearing, and other removal activities 
generally results in substantial soil movement beyond the area from 
which the material is being removed (See also section III D of today's 
preamble). This substantial soil movement and distribution of material 
makes the situations involving mechanized earth-moving equipment akin 
to the numerous cases in which the courts have found that the redeposit 
of material constituted the discharge of a pollutant. See e.g., 
Avoyelles Sportsmen's League v. Marsh, 715 F. 2d 897, 923 (5th Cir. 
1983)(recognized that the term ``discharge'' covers the redepositing of 
materials taken from wetlands); United States v. Mango, 997 F. Supp. 
264, 285 (N.D.N.Y. 1998), affirmed in part, reversed in part on other 
grounds, 199 F. 3d 85 (2d Cir. 1999)(found that backfilling of trenches 
with excavated material was a discharge); United States v. M.C.C. of 
Florida, Inc., 772 F. 2d 1501 (11th Cir. 1985)(holding that 
redeposition of seabed materials resulting from propeller rotation onto 
adjacent sea grass beds was an ``addition'' of dredged spoil); Slinger 
Drainage Inc., CWA Appeal No. 98-10 (EPA Environmental Appeals Board 
Decision (EAB)(holding that backfilling by a Hoes trenching machine is 
a regulable discharge of dredged material, not incidental 
fallback)(appeal pending); United States v. Deaton, 209 F. 3d 331 (4th 
Cir. 2000)(holding that sidecasting is a regulated discharge); see also 
United States v. Huebner, 752 F. 2d 1235 (7th Cir.), cert denied, 474 
U.S. 817 (1985) (sidecasting materials along a ditch and then using a 
bulldozer to spread material over several acres constituted a discharge 
of dredged material).
    We do recognize, however, that some excavation activities by using 
specialized techniques or precautions may be conducted in such a manner 
that no discharge of dredged material in fact occurs. Today's rule 
specifically provides for consideration of project-specific information 
as to whether only incidental fallback results in determining 
jurisdiction under section 404. For example, we acknowledge that some 
suction dredging operations can be conducted in such a manner that if 
the excavated material is pumped to an upland location or other 
container outside waters of the U.S. and the mechanized removal 
activity takes place without re-suspending and relocating sediment 
downstream, then such operations generally would not be regulated. 
Other examples of activities that would generally not be regulated 
include discing, harrowing, and harvesting where soil is stirred, cut, 
or turned over to prepare for planting of crops. These practices 
involve only minor redistribution of soil, rock, sand, or other surface 
materials. The use of K-G blades and other forms of vegetation cutting 
such as bush hogging or mowing that cut vegetation above the soil line 
do not involve a discharge of dredged material.
    b. Too narrow reading of ``incidental fallback''. Several 
commenters incorrectly equate ``incidental fallback'' with all dredged 
spoil that is redeposited in regulated waters as a result of activities 
using mechanized

[[Page 4555]]

equipment. As indicated, the NMA court made it clear that regulable 
redeposits could be associated with such activities and, to the extent 
that they were, the NMA decision did not preclude regulation. Today's 
rule explicitly excludes incidental fallback from the definition of 
discharge of dredged material. First, it does not alter the May 10, 
1999, amendment to the definition of ``discharge of dredged material,'' 
which explicitly excluded incidental fallback from the definition. In 
addition, today's rule provides for the consideration of project-
specific evidence which shows that only incidental fallback results 
from the activity. Thus, we have taken the necessary steps to ensure 
that we do not regulate ``incidental fallback'' when it is the only 
material redeposited during certain removal activities. The Court's 
NAHB Motion Decision found our May 10, 1999, amendment consistent with 
the injunction in the NMA case, and today's rule does not change or 
alter the underlying provisions of that rule.
    Nevertheless, several commenters have argued that the agencies are 
interpreting ``incidental fallback'' too narrowly and have not heeded 
language in the Court's NAHB Motion Decision that cautioned against 
applying a too narrow definition of incidental fallback that would be 
inconsistent with an objective and good faith reading of the AMC and 
NMA decisions. Today's rule, however, is entirely consistent with that 
order and the decisions in AMC and NMA. First, commenters are incorrect 
that we have construed the meaning of ``incidental fallback'' too 
narrowly because, in formulating the definition in today's regulation, 
we were guided by the descriptions of incidental fallback in the 
judicial opinions. The NMA decision indicates that incidental fallback 
`` * * * returns dredged material virtually to the spot from which it 
came.'' 145 F. 3d at 1403. It also describes incidental fallback as 
occurring ``when redeposit takes place in substantially the same spot 
as the initial removal.'' 145 F. 3d at 1401. Similarly, the District 
Court described incidental fallback as ``the incidental soil movement 
from excavation, such as the soil that is disturbed when dirt is 
shoveled, or the back-spill that comes off a bucket and falls back into 
the same place from which it was removed.'' 951 F. Supp. at 270. We 
believe that adopting a definition that relies heavily on the judicial 
formulations of ``incidental fallback'' will ensure consistency with 
those opinions as well as help project proponents understand the 
agencies' view of ``incidental fallback.'' We disagree strongly with 
commenters who suggested that we are trying to inappropriately parse 
the language of the AMC and NMA decisions, and believe that our 
definition of ``incidental fallback'' is based upon a good faith 
interpretation of those rulings. See section II C of today's preamble 
for additional discussion of this issue.
    Nevertheless, as discussed in section III E of today's preamble, we 
did not adopt a definition of incidental fallback that would turn on 
whether the material was redeposited to ``the same general area'' from 
which it was removed. We believe this formulation could potentially be 
read to mean that incidental fallback would include any dredged 
material redeposited in the same overall site where excavation 
occurred, as opposed to the place of initial removal. We believe such a 
broad formulation would not adequately recognize court decisions that 
have found a regulable discharge where redeposits have occurred even 
though only a short distance from the removal point. See, e.g., Deaton, 
Mango, etc.
    Moreover, contrary to one commenter's contentions, today's rule is 
not inconsistent with the approach taken by the agencies in the 1997 
Tulloch Guidance (``Corps of Engineers/Environmental Protection Agency 
Guidance Regarding Regulation of Certain Activities in Light of 
American Mining Congress v. Corps of Engineers,'' April 11, 1997) 
(``1997 Guidance''). The commenter pointed to language in the 1997 
Guidance stating that if there is ``movement of substantial amounts of 
dredged material from one location to another in waters of the United 
States (i.e., the material does not merely fall back at the point of 
excavation), then the regulation of that activity is not affected by 
the Court's decision.'' Pointing to that language, the commenter went 
on to assert the 1997 Guidance meant that unless ``substantial 
amounts'' of dredged material were moved, then no discharge occurs, and 
concluded from this that the proposed rule was inconsistent with the 
1997 Guidance. In response, we do not believe the 1997 Guidance can be 
properly read to support the commenter's conclusions. The language 
quoted by the commenter comes from a portion of the guidance under the 
section header ``Types of Discharge Not Addressed by Court Decision.'' 
In addition, it simply provides guidance to field personnel that where 
an activity results in movement of substantial volumes of dredged 
material, regulation of the activity is unaffected by the court's 
decision. The 1997 Guidance thus does not mean we interpreted the AMC 
or NMA decisions to allow regulation only if relocation of substantial 
amounts of dredged material takes place. In fact, the 1997 Guidance 
provides at page 3 that: ``The Court's decision only has implications 
for a particular subset of discharges of dredged material, i.e., those 
activities where the only discharges to waters of the U.S. are the 
relatively small volume discharges described by the Court as 
``incidental fallback * * *'' (emphasis added). Nothing in today's rule 
is inconsistent with the 1997 Guidance.
    The preamble to the proposed rule clearly recognized that there can 
be situations where due to the nature of the equipment used and its 
method of operation, a redeposit may consist of material limited to 
``incidental fallback.'' In addition, that preamble recognized (as do 
the regulations at 33 CFR 323.2(d)(2)(ii) and 40 CFR 232.2), for 
example, that the use of equipment to cut trees above the roots that 
does not disturb the root system would not involve a discharge. 
Moreover, as discussed in section II C of today's preamble, we have 
modified today's final rule to make it even more clear that project-
specific information may be used to demonstrate that only ``incidental 
fallback'' will result. Despite the discussion in the proposed rule's 
preamble, some commenters contended that we were overreaching. We 
believe that the language changes reflected in today's rule as well as 
the discussion in today's preamble clarify that redeposits associated 
with the use of mechanized earth-moving equipment will only be 
regulated if more than incidental fallback is involved, while making 
clear our view that activities involving mechanized earth-moving 
equipment typically result in more than incidental fallback. Where the 
redeposits are limited to incidental fallback, they would not be 
regulated.
    c. Covers same activities as 1993 Tulloch Rule. A number of 
commenters argued that the proposed rule was an improper attempt to 
circumvent the NMA decisions and reinstate the invalidated 1993 Tulloch 
Rule. They contended that the agencies relied on no new information in 
developing this rule and that large segments of the proposed rule 
appeared in, and were used to justify, the 1993 Rule. Moreover, as 
opposed to narrowing the definition of ``discharge of dredged 
material'' as instructed by the courts, several argued that the 
proposed rule simply swept in the same activities and created a vague 
and impossible standard for rebutting the presumption. Several asserted 
that the agencies made no attempt to create

[[Page 4556]]

a ``brightline'' distinction between incidental fallback and regulable 
redeposits as encouraged by the courts and instead, simply shifted the 
burden to the regulated community. The end result, they argued, would 
be that the agencies would regulate activities that are not 
appropriately within the scope of the CWA, because, among other 
reasons, people lack the resources, wherewithal, or information to 
rebut the presumption.
    The changes that we have made in the rule language further clarify 
the distinctions between our approach today and the 1993 Tulloch Rule. 
We believe that today's rule reflects important differences with the 
1993 Tulloch Rule that make our action consistent with the NMA rulings. 
First, as discussed previously in this preamble, today's amendments 
along with those made on May 10, 1999, explicitly and repeatedly 
exclude incidental fallback from the definition of ``discharge of 
dredged material.'' Today's rule also provides a descriptive definition 
of incidental fallback and explicitly indicates that project-specific 
evidence may be used to show that only incidental fallback will result 
from the activity. These provisions are a direct response to the NMA 
rulings and to the comments that we received. In contrast, the relevant 
sections of the 1993 Tulloch Rule included any redeposit, including 
redeposits consisting of only incidental fallback.
    Similarly, contrary to the suggestion of one commenter, the 
rebuttable presumption would not have recast in different legal 
language the central hypothesis of the Tulloch Rule that every 
redeposit of dredged material was a discharge subject to regulation 
under section 404. The commenter referenced language from the 1993 
Preamble stating that it is ``virtually impossible to conduct 
mechanized landclearing, ditching, channelization or excavation in 
waters of the United States without causing incidental redeposition of 
dredged material (however small or temporary) in the process.'' 58 FR 
at 45017. In contrast, the position that we are taking today does not 
cast the jurisdictional net so broadly. Both the rebuttable presumption 
in the proposal and today's rule are more narrow in scope because we 
are not regulating incidental fallback. As discussed in the previous 
paragraph, the regulations defining the discharge of dredged material 
were amended on May 10, 1999, to make clear that incidental fallback is 
not encompassed within that definition and today's rule does not alter 
that exclusion.
    Second, some commenters claimed that the rebuttable presumption 
that was in the proposed rule is the same as the de minimis exception 
that was added to the regulations as part of the 1993 Tulloch Rule and 
continues to be a part of the definition of discharge of dredged 
material today. 33 CFR 323.2(d)(3); 40 CFR 232.2. We believe that this 
comment misunderstands the relationship between today's rule and the de 
minimis exception contained in the 1993 Tulloch Rule. We have not 
reopened in this rulemaking the de minimis exception from the 1993 
rule, since that provision is irrelevant to determining whether an 
activity results in a discharge of dredged material. As promulgated in 
the 1993 rule, the de minimis exception provides that section 404 
authorization is not required for the incidental addition of dredged 
material associated with an activity that would not destroy or degrade 
a water of the U.S. Under the 1993 rule, mechanized landclearing, 
ditching, channelization, or other excavation activity that results in 
a redeposit into waters of the U.S. were presumed to destroy or degrade 
waters of the U.S., unless the project proponent demonstrated prior to 
proceeding with the activity that it would not cause such effects. 33 
CFR 323.2(d)(3); 40 CFR 232.2. Thus, the de minimis exception in the 
existing regulations and its associated presumption address the issue 
of whether otherwise regulable discharges are excluded from section 404 
authorization because of minimal effects on the environment, and does 
not, as some commenters suggested, serve as a means of asserting 
authority over activities outside our jurisdiction based on the effects 
of activities.
    By contrast, today's rule addresses the issue of whether a 
regulable discharge of dredged material is even involved. Today's rule 
does not eliminate the requirement for a ``discharge.'' Instead it 
reflects the agencies' view that regulable discharges generally are 
expected to occur when certain activities using mechanized earth-moving 
equipment are undertaken. The proposed rule described this view in 
terms of a presumption but allowed project proponents to demonstrate 
that their activities caused only incidental fallback, which is beyond 
section 404 jurisdiction. Today's rule does not use the words 
``presumption'' or ``presume'' to avoid any misunderstanding that we 
are attempting to shift CWA burdens to the project proponent. If the 
activity involves only incidental fallback, it would not be regulated 
regardless of the level of associated environmental impact because the 
statutory prerequisite of a discharge has not occurred. Moreover, 
unlike the treatment of mechanized activities when attempting to 
qualify for the de minimis exception, neither the proposed nor final 
rules require that the project proponent affirmatively demonstrate to 
the agencies that no discharge will occur prior to proceeding with his 
activities. Thus, the de minimis exception and today's rule serve 
different purposes and operate differently within the context of the 
regulation and for that reason the de minimis exception was not 
reopened as part of this rulemaking.
    In addition, one commenter charged that by adopting a rebuttable 
presumption similar to the one proposed in the 1992 proposal but that 
was dropped prior to final promulgation in 1993, the agencies make 
clear their intent to sweep into regulation specific activities rather 
than determine actual discharges. In response, we note that the 1992 
proposal actually contained an irrebutable presumption that was more 
inclusive than what we promulgated in the 1993 Tulloch Rule and than 
either the proposed or final rules we are addressing today. In fact, 
contrary to the sentiment expressed in the comment, the allowance for 
project-specific evidence that the activity results in only incidental 
fallback reflects our effort to restrict regulation to only regulable 
discharges.
    We do not believe that it is of any significance that there is 
overlap between the activities addressed by today's rule and the 1993 
Tulloch Rule. The NMA court did not find that all activities 
potentially encompassed by that rule were beyond the scope of the CWA, 
but rather that incidental fallback was excluded. NAHB Motion Decision. 
Thus, it is no surprise that the two rules address some of the same 
activities.
    d. Improperly relies on an ``effects'' test. Several commenters 
argued that the proposed rule improperly relies on the broad goals of 
the CWA and an ``effects test'' as the basis for establishing 
jurisdiction. They contended that this approach is inconsistent with 
the NMA-related decisions and with other cases addressing the basis for 
jurisdiction under the CWA. They stated further that the CWA was not 
intended to provide comprehensive protection for wetlands. We believe 
that the commenters misunderstood the purpose and effect of the 
proposal, as well as have misread the conclusions in the NAHB Motion 
Decision about an effects based test of jurisdiction.
    First, the agencies agree that the CWA regulates ``discharges'' and 
today's rule

[[Page 4557]]

in no way establishes an effects-based test for asserting CWA 
jurisdiction. As was indicated in the proposal, the presence of a 
``discharge'' of dredged or fill material into waters of the U.S. is a 
prerequisite to jurisdiction under section 404. The purpose of this 
rule is to provide further clarification of what constitutes a 
``discharge of dredged material.'' As indicated, we regard the use of 
mechanized earth-moving equipment to conduct landclearing, ditching, 
channelization, in-stream mining or other earth-moving activity in 
waters of the U.S. as resulting in a discharge of dredged material 
unless there is project-specific information to the contrary. Thus, 
although significant adverse environmental effects can result from 
activities undertaken using mechanized earth-moving equipment, the 
jurisdictional basis is the presence of regulable discharges.
    To the extent these comments are addressing the de minimis 
exception contained in the 1993 rule, the comments are outside the 
scope of this rulemaking because we have not reconsidered that 
provision here. We note that the continued operation of this existing 
regulatory provision is consistent with AMC and NMA. The NAHB Motion 
Decision affirmatively rejected the position that ``the Court's 
injunction must be understood to bar application and enforcement of the 
effects-based test of jurisdiction * * * because the Court also 
rejected this component of the Tulloch Rule * * * [citation omitted.]'' 
The Court stated :

    The Court rejected this test because the agencies were using it 
to assert jurisdiction over otherwise non-regulable activities; the 
Court expressly did not determine whether the effects-based test of 
jurisdiction would be valid if applied to activities that otherwise 
come within the scope of the Act. [citation omitted] Thus, where the 
effects-based test is not applied to otherwise non-regulable 
activities under the Act (such as incidental fallback), the Court's 
injunction does not bar its application.

NAHB Motion Decision, n. 8.
Likewise today's rule is not in conflict with the Slinger decision as 
asserted by one of the commenters. In Slinger Drainage, Inc., EPA's 
Environmental Appeals Board affirmed EPA's general view that `` the 
pivotal consideration for purposes of deciding whether an individual 
activity is or is not subject to the section 404 permitting requirement 
is whether a discharge of dredged material takes place.'' In re: 
Slinger Drainage, Inc., CWA Appeal No. 98-10 (September 29, 1999)(slip 
opinion), at 19. Notably, the EPA Environmental Appeals Board also 
stated in that opinion that the requirement for a discharge ``is not to 
say that the `effects' of a particular activity are of no concern. In a 
broad sense effects are the driving force behind the entire regulatory 
scheme to protect wetlands.'' Id.
    Finally, one commenter suggested that discussions in the proposed 
rule's preamble concerning the release of contaminants in the water 
column indicate that the agencies ``base their finding of jurisdiction 
on analysis of the effects of the mechanized landclearing, ditching, or 
other activity.'' This is incorrect. Rather than being regulated based 
on the effect on water quality, as discussed in section III D of 
today's preamble, the transport of dredged material downstream or the 
release of previously bound-up or sequestered pollutants (which are in 
and part of the dredged material) may constitute a discharge, not by 
virtue of associated environmental impacts, but by virtue of being 
added to a new location in waters of the U.S. In evaluating whether 
suspension or downstream transport results in a regulable discharge or 
only incidental fallback, we would consider the nature and amount of 
such suspension and transport.
    e. Inconsistency with District Court ``specified disposal site'' 
rationale. Several commenters contended that today's rule ignores the 
AMC court's analysis of ``specified disposal sites.'' We do not see 
today's rule as inconsistent with this aspect of the court's decision. 
The court in AMC held that, even if the term ``addition of a 
pollutant'' were broad enough to cover incidental fallback, the 
language ``specified disposal sites'' in section 404(a) would have led 
the court to the same holding. Because today's rule does not regulate 
incidental fallback, it is entirely consistent with this aspect of the 
court's opinion. Moreover, the court's reasoning in AMC was that the 
1993 rule effectively made all excavation sites into disposal sites, 
rendering the statutory language ``at specified disposal sites'' 
superfluous. Today's rule does not render the statutory language 
superfluous because we are only asserting jurisdiction over redeposits 
that occur outside the place of initial removal.
2. Proposal as Inconsistent With the CWA
    Several other claims were made that today's rule is not consistent 
with the CWA. Those claims included several pronouncements that the CWA 
only regulates discharges and that the legislative history demonstrates 
that Congress did not intend the CWA to regulate minor discharges 
associated with dredging, mechanized landclearing, excavation, 
ditching, channelization, and other de minimis discharges. One 
commenter disagreed with the proposition that section 404(f)(2) 
supports the proposed rule because it reflects Congressional 
recognition that these activities result in discharges. This commenter 
cited an excerpt from the NMA court decision--that the court was 
``reluctant to draw any inference [from section 404(f)] other than that 
Congress emphatically did not want the law to impede these bucolic 
pursuits''--to support his assertion. Moreover, one commenter argued 
that the lack of a specific reference to excavation activities in the 
CWA is further evidence that small-volume, incidental deposits 
accompanying landclearing and excavation activities were not intended 
to be covered under section 404. Several commenters also contended that 
the CWA does not require a person to make a prima facie showing that 
activities are exempt from regulation under the Act and the agencies 
can not administratively impose this requirement.
    As discussed in section III A d, we recognize that the statute and 
legislative history require a discharge for the requirements of the CWA 
to apply. The definition of discharge of dredged material contained in 
today's rule is, therefore, grounded on the statutory term ``discharge 
of a pollutant'' contained in section 502(12) of the Act and relevant 
court decisions that have construed the discharge requirement. We 
think, however, that some commenters' assertion that legislative intent 
mandates a broad construction of the term ``incidental fallback'' finds 
no support either in section 502(12) (defining ``discharge of a 
pollutant'' to include ``any addition of any pollutant'' (emphasis 
added)) or section 404(f). We do not agree that the 1972 and 1977 
legislative histories generally indicate that Congress did not intend 
to regulate minor discharges resulting from certain activities, 
including excavation. To the contrary, while Congress was focused on 
preserving the Corps' autonomy with respect to navigational dredging, 
it is clearly over-reading the history to suggest that other types of 
removal activities implicitly were contemplated and rejected by the 
choice of words such as ``discharge,'' ``pollutant,'' ``dredge spoil,'' 
or ``disposal sites,'' as one commenter suggested.
    Moreover, the treatment of incidental discharges in the 1977 Act 
helps illustrate Congress' view of these types of discharges. The 
404(f) exemption was necessary because Congress recognized that, absent 
an exemption, regulation of discharges ``incidental to'' certain

[[Page 4558]]

activities was encompassed within section 404 under certain 
circumstances. There is no support in the Act or legislative history 
for concluding that so-called ``minor'' discharges associated with 
excavation were intended by Congress to be categorically excluded from 
the Act. In fact, the very use of the word ``incidental'' in section 
404(f)(2) suggests just the opposite. Incidental is defined as: ``1. 
being likely to ensue as a chance or minor consequence; 2. occurring 
merely by chance or without intention or calculation'' (Miriam-
Webster's Collegiate Dictionary (10th Ed., 1998)); ``1. occurring or 
likely to occur as an unpredictable or minor accompaniment; 2. of a 
minor, casual, or subordinate nature'' (American Heritage Dictionary of 
the English Language; 4th Ed.); ``happening or likely to happen in an 
unplanned or subordinate conjunction with something else'' (Random 
House Dictionary of the English Language (2d Ed. 1987)). Thus, the use 
of the word ``incidental'' in section 404(f)(2) belies the notion that 
the Act mandates a broad interpretation of incidental fallback.
    Senator Muskie, the sponsor of the 1977 CWA amendment, addressed 
the section 404(f) exemptions as follows:

    404(f) provides that Federal permits will not be required for 
those narrowly defined activities that cause little or no adverse 
effects either individually or cumulatively. While it is understood 
that some of these activities may result in incidental filling and 
minor harm to aquatic resources, the exemptions do not apply to 
discharges that convert extensive areas of water into dry land or 
impede circulation or reduce the reach or size of the water body. 3 
A Legislative History of the Clean Water Act of 1977, 95th Cong., 2d 
Sess., Ser. No. 95-14 (1978), at 474.

Thus, the Legislative History does not support the commenters' point.
    In addition, we have clarified the rule in response to commenters 
who argued that the proposal was at odds with the CWA because the Act 
does not specifically require a discharger to make a prima facie case 
that its activities are exempt from the permit requirements. The 
revised language in today's rule clarifies that we are not requiring 
that a project proponent make a prima facie case as to the absence of 
jurisdiction. Today's rule sets forth the agencies' view that the use 
of mechanized earth-moving equipment in waters of the U.S. results in a 
discharge of dredged material unless there is evidence that only 
incidental fallback results, but expressly provides that the rule does 
not shift any burdens in administrative or judicial proceedings. This 
is fully consistent with the Act. See section III B of today's preamble 
for further discussion.
    Some commenters have argued that because the regulatory definition 
of discharge of dredged material is broad, the presumption is 
unreasonable and cannot be refuted. As indicated in section II C of 
today's preamble, we have removed the presumption language and added a 
descriptive definition of incidental fallback, and also have clarified 
that the regulation does not shift any burden in any administrative or 
judicial proceeding under the CWA. We believe the definition mirrors 
the reach of the statute as interpreted by the courts and, therefore, 
is not unreasonable. As discussed in section III 1 b, we recognize that 
there will be situations when the project-specific information 
indicates that only incidental fallback results from the activity and 
thus it would not be regulated.
3. Proposal as Misreading Applicable Case Law
    A number of commenters claimed that we have misread and are 
misapplying many of the cases we cited in support of today's action. 
Most of these comments addressed our analysis of the cases relating to 
what is a regulable discharge. We do not believe that we are unfairly 
reading the major cases in this area.
    From these cases, we know that the following factors are relevant 
to determining regulable redeposits: quantity of material redeposited 
(Avoyelles and Slinger involved substantial quantities of 
redeposition); nature and type of relocation (redeposits adjacent to 
the removal area or backfilling are generally regulated, see Deaton, 
Mango, M.C.C. of Florida and Slinger); redeposit after some processing 
of material (Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990)). As 
discussed in section II C of today's preamble, an assessment of such 
factors from the relevant cases will assist in determining whether a 
regulable redeposit takes place. We believe that in most situations, 
when applying the factors reflected in the cases, earth-moving 
activities undertaken using mechanized earth-moving equipment result in 
a discharge. Today's rule reflects that view while allowing evidence 
that only incidental fallback will result from the activity to preclude 
regulation.
    Several commenters noted distinguishing facts that they believe 
undermine our reliance on some of the cases we cited. For example, 
several commenters noted that Avoyelles addresses the ``discharge of 
fill material'' not the ``discharge of dredged material'' and stated 
that our reliance on that case is misplaced. However, Avoyelles 
addresses the issue of what is an ``addition,'' an analysis relevant 
for both the discharge of fill and the discharge of dredged material. 
Its conclusion that the redeposit of material constitutes a 
``discharge'' thus is relevant to today's rule. Moreover, the court in 
Deaton, citing Avoyelles among other cases, noted that its 
understanding of the word ``addition'' as including redeposits was the 
same as nearly every other Circuit Court to consider the addition 
question. Deaton involved the ``discharge of dredged material;'' thus, 
we do not believe it is appropriate to reject Avoyelles because the 
court only expressly addressed how that activity involved a discharge 
of ``fill.''
    Similar distinguishing facts or other purported problems were 
asserted with respect to other cases. For example, one commenter argued 
that we cited Bay-Houston Towing Company as if the court had ruled that 
``temporary stockpiling of peat in a wetland is a regulable 
discharge.'' In fact, the parenthetical in the preamble for Bay-Houston 
accurately reflects the court's determination that the activities at 
issue were subject to regulation (``Spreading the sidecasted bog 
material from the side of the ditch into the bog for future harvest * * 
* involves relocating the bog materials * * * for a period of time 
varying from `a few hours' to `a few days' '' or more. * * * Thus, 
while there may be something a step further than `incidental fallback' 
which would fall outside of the government's jurisdiction, Bay-
Houston's harvesting activities are not it.'') Bay-Houston Towing 
Company, No. 98-73252 (E.D. Mich. 2000)(slip opinion) at 8--9. We 
believe that the cases that we referenced in the proposed and final 
rule preambles support our action.
    Finally, one commenter argued that our discussion of the effects of 
toxic releases from redeposited material does not justify our attempt 
to regulate activities that are beyond the scope of the CWA. As we 
noted in our discussion of the comments concerning the use of an 
effects based test to establish jurisdiction (see section III A 1 d of 
today's preamble), today's rule does not attempt to regulate activities 
beyond the scope of the CWA or base our jurisdiction on effects. We are 
only asserting jurisdiction over redeposits of dredged material that 
meet the statutory requirement of a ``discharge.''
4. Proposal as Complying With Applicable Law
    Several other commenters asserted their view that the proposal was

[[Page 4559]]

consistent with the court's decision in NMA. They noted that the 
proposal reflected the concept expressed in AMC and NMA of ``incidental 
fallback.'' They also noted that the proposal does not regulate 
incidental fallback, but rather other types of redeposits that exceed 
incidental fallback. These commenters pointed out that the NMA court 
explicitly declined to hold that the Corps may not legally regulate 
some forms of redeposit under section 404. For these reasons, the 
commenters stressed that the proposal fully complied with the NMA 
decision and nationwide injunction. As discussed in section II C of 
today's preamble, we agree that today's rule is consistent with AMC and 
NMA because, among other things, it retains the exclusion of incidental 
fallback from the definition of discharge of dredged material.
    One commenter described the proposal as consistent with NMA, even 
though the proposal may regulate small or unintentional redeposits of 
dredged material. The commenter argued that NMA is misinterpreted when 
described as standing for the proposition that the word ``incidental'' 
in incidental fallback means that no regulable discharge results if 
only small amounts of material are moved, or material is moved simply 
as an unintentional consequence of other activity. The commenter 
stressed that the CWA prohibits the discharge of ``any pollutant'' not 
in accordance with a permit, not merely a specific quantity of 
pollutants. A focus on some concept of ``significant'' quantity of 
pollutants by weight, the commenter emphasized, makes no statutory or 
ecological sense because dredged spoil contains not only inert sediment 
but also small chemical constituents with potentially large 
environmental impacts. The commenter also noted that the CWA at no 
point suggests an added requirement that discharges be intentional.
    We agree that neither NMA nor the CWA establishes a quantity 
threshold triggering the permit requirement, but instead regulate any 
addition of any pollutant which, in the case of dredged material, 
consists of the dirt, soil or rock that is dredged, including any 
biological or chemical constituents contained in the dirt, soil or 
rock. However, the amount of redeposit is a factor that we believe 
should be considered in determining if a redeposit constitutes more 
than incidental fallback. We note that under AMC and NMA incidental 
fallback involves small volume discharges returned to substantially the 
same place as the initial removal. We also agree that, under these 
decisions, incidental fallback does not extend to covering all material 
that may be incidentally redeposited in the course of excavation 
activities. Simply because a redeposit of dredged material may be 
unintended does not mean it is not a discharge, since the CWA requires 
a permit for any addition of a pollutant into waters of the U.S., 
regardless of the intent of discharger. The broad interpretation of NMA 
urged by other commenters would elevate intent to overarching status in 
discerning whether an addition has occurred, a result we do not believe 
appropriate or justified under the CWA scheme. This suggested 
interpretation would also blur any meaningful distinction between 
incidental fallback and regulable discharges because it would 
effectively remove the term ``fallback'' from EPA's regulation. In our 
view, to constitute ``incidental fallback,'' a redeposit logically must 
be both ``incidental'' (i.e., a minor, subordinate consequence of an 
activity) and ``fallback'' (i.e., in substantially the same place as 
the initial removal). Neither AMC nor NMA compels us to expand the 
concept of ``incidental fallback'' to include all ``incidental 
redeposits'' without regard to the volume or location of the redeposit, 
and we decline to do so for the reasons stated above.
    A number of commenters suggested that the agencies should find 
guidance not only from the AMC and NMA decisions, but also from other 
court decisions discussing the discharge of dredged material. In 
particular, the commenters argued that the ``net addition'' approach in 
NMA has been explicitly rejected in Deaton and implicitly rejected by 
many others. Two commenters quoted Deaton to stress that: ``* * *[t]he 
idea that there could be an addition of a pollutant without an addition 
of material seems to us entirely unremarkable, at least when an 
activity transforms some material from a nonpollutant into a pollutant 
* * *'' and that ``[i]t is of no consequence that what is now dredged 
spoil was previously present on the same property in the less 
threatening form of dirt and vegetation in an undisturbed state.'' 209 
F.3d at 335-36. Based on Deaton, several commenters believed there is 
ample support for a rule considering the redeposit of dredged material 
outside the place of initial removal as constituting an addition of 
dredged material. The commenters also noted that such an approach is 
consistent with the numerous other courts that have concluded that 
moving around dredged material within the same water body requires a 
permit. See, e.g., U.S. v. Brace, 41 F. 3d 117, 122 (3d Cir.), cert. 
denied, 515 U.S. 1158 (1994) (Clearing, churning, mulching, leveling, 
grading, and landclearing of the formerly wooded and vegetated site was 
a discharge of a dredged spoil that under the specific facts did not 
qualify for the 404(f)(1) farming exemption); United States v. Huebner, 
752 F. 2d 1235 (7th Cir.), cert. denied, 474 U.S. 817 (1985) 
(Sidecasting and use of a bulldozer to spread the material over several 
acres constituted the discharge of dredged material that was not exempt 
under 404(f)); Weiszmann v. U.S. Army Corps of Engineers, 526 F. 2d 
1302, 1306 (5th Cir. 1976)( ``Spill'' of sediment during dredging of 
canal was a discharge of a pollutant; court rejected the argument that 
a spill is not a ``discharge.'').
    We agree that Deaton and the other cases cited offer additional 
support. Deaton provides helpful post-NMA insights into what is an 
``addition'' of a pollutant, and we note that the NAHB Motion Decision 
rejected the idea that there is a conflict between Deaton and NMA. NAHB 
Motion Decision at 16. We believe today's rule is consistent with 
Deaton, AMC, and NMA, and complies fully with the injunction affecting 
the 1993 Tulloch Rule.
    Numerous commenters looked to the CWA as a basis for concluding the 
proposal was consistent with Congressional intent and NMA. One 
commenter observed that numerous courts, including the U.S. Supreme 
Court, have looked to the underlying policies of the CWA when 
interpreting authority to protect wetlands. The commenter noted that 
the goal of the CWA is to maintain the ``chemical, physical, and 
biological integrity of the Nation's waters,'' and discussed the 
pollution and adverse effects to aquatic ecosystems caused by wetlands 
dredging and stream channelization. The commenter emphasized that it 
would frustrate the goal of the CWA to not regulate the incidental soil 
movements that occur during excavation. While we agree that regulation 
of discharges of dredged material into waters of the U.S. is a critical 
component of achieving CWA goals, consistent with AMC and NMA, CWA 
section 404 does not extend to incidental fallback, and today's rule 
has been drafted to ensure that we regulate only on the basis of the 
discharge of dredged material.
    Some commenters suggested that today's rule also be guided by CWA 
section 404(f)(2) and its legislative history, which explicitly require 
the regulation of ``incidental'' discharges under certain circumstances 
even if they might otherwise be a result of a specially exempt category 
of activities. Most of these commenters concluded

[[Page 4560]]

that section 404(f)(2) reflects an explicit Congressional intent to 
regulate minor and unintentional soil movements that occur during the 
process of constructing a drainage ditch in wetlands or otherwise are 
incidental to an activity that ``impairs circulation and flow or 
reduces the reach'' of waters of the U.S. One commenter concluded that 
this section of CWA does not provide support for today's rule.
    One commenter asserted that section 404(f)(2) conveys important 
Congressional intent regarding how the term ``discharge'' should be 
interpreted, despite the fact that the section does not define the term 
``discharge.'' While agreeing with the District Court in AMC that the 
section does not use effects ``to regulate activities that do not 
themselves constitute discharges'' (951 F.Supp. 267, 275 n. 18), the 
commenter argued that section 404(f)(2) makes clear the proposition 
that: (1) At a minimum some category of ``incidental'' discharges are 
regulated by the CWA; (2) regulation under section 404(f)(2) does not 
depend on whether the ``incidental'' discharge itself has significant 
environmental effects but only on whether the activity, to which the 
discharge may be only ``incidental,'' has certain environmental 
effects; and (3) regulated ``incidental'' discharges can occur during 
the excavation or dredging process, because the language of the section 
about ``reducing the reach'' and ``impairing the flow'' commonly occur 
through excavation of drainage ditches.
    One commenter suggested that language of section 404(f)(1) 
similarly supported the idea that a permit should generally be required 
for activities that drained wetlands. For example, the commenter noted 
section 404(f)(1)(a) provides an exemption for ``minor drainage'' 
associated with farming and silvicultural activity. If discharges from 
such activities trigger the provisions of section 404(f)(2), the 
commenter asserted, Congress intended ``minor drainage'' to be 
regulated. The commenter argued that the plain language in section 
404(f)(1) provides guidance for interpreting the term ``discharge.'' 
Section 404(f)(1) states that ``the discharge of dredged or fill 
material'' resulting from these activities ``is not prohibited by or 
otherwise subject to regulation.'' In other words, the commenter 
emphasized, the identified activities that may result in a discharge of 
dredged or fill material ``are exempt from section 404 permit 
requirements'' (quoting Corps and EPA implementing regulations, 33 CFR 
323.2; 40 CFR 232.3(c)); otherwise, there would be no need for the 
404(f)(1) exemptions.
    As discussed in section III A 2 above, today's rule is based on the 
definition of ``discharge of a pollutant'' contained in section 502 of 
the Act, as construed by the caselaw, including the AMC and NMA 
opinions finding that incidental fallback is not a regulable discharge 
under the Act. We agree that section 404(f), and in particular the use 
of the term ``incidental'' in section 404(f)(2) provides evidence 
supporting our rejection of some commenters' assertions that the Act 
restricts us to only regulating substantial or significant redeposits 
of dredged material.

B. Overall Reasonableness of Presumption

    Many commenters expressed views on the overall reasonableness of 
the presumption contained in the proposed rule. Commenters maintaining 
that the presumption is reasonable stated that it would not expand the 
regulatory authority of the agencies or be contrary to relevant court 
decisions, but instead would clarify how that existing authority would 
apply. Others noted that the presumption is reasonable because it is 
consistent with their experience or Corps experience in evaluating 
discharges of dredged material. Numerous commenters affirmed the 
validity of the examples of activities in the preamble of the proposed 
rule that are presumed to result in a discharge of dredged material, 
including those who asserted that the presumption would decrease 
regulatory uncertainty as a consequence. These commenters also stated 
their view that other specific activities (e.g., grading, leveling, 
bulldozing) and redeposits of sediment away from the point of 
excavation during ditching and channelization were regulable 
discharges.
    One commenter indicated that the very nature of how some equipment 
operates means that it will always result in a discharge with more than 
incidental fallback. Another asserted that dredging or excavation 
activities conducted in a wetland or stream will always result in a 
regulable discharge. A number of commenters provided citations from the 
scientific literature in support of the presumption for these 
activities. Several commenters maintained that the presumption is 
reasonable because in any instance a person conducting such activities 
would be given the opportunity to demonstrate that only incidental 
fallback would result.
    Today's rule reflects a reasonable belief that mechanized earth-
moving equipment when used in waters of the U.S. typically will cause 
regulated discharges because they are made to move large amounts of 
earth and will typically relocate the dredged material beyond the place 
of initial removal. We also recognize, however, that the activities 
addressed in today's rule will not always result in a discharge, and 
therefore, the final rule allows the necessary flexibility for 
considering project-specific information that only incidental fallback 
results.
    Other commenters maintained that the presumption was not 
reasonable, arguing that it was at odds with controlling legal 
precedent. These commenters argued that to establish a rebuttable 
presumption, case law requires us to have a record demonstrating that 
it is more likely than not that the presumed fact exists. See e.g., 
National Mining Association v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999). 
Some commenters asserted that the presumption was unreasonable because 
it did not clearly articulate the scope of what is not regulated (i.e., 
what is incidental fallback). Some commenters also maintained that the 
presumption was not reasonable because it would require a permit for 
all of the types of activities addressed in the rule, and would thus 
regulate dredging itself rather than the discharges that result. Some 
asserted that because the presumption is not always true, it is not 
reasonable. Other commenters asserted that the recognition in the 
proposed rule's preamble that specialized and sophisticated techniques 
and machinery may limit redeposits to incidental fallback undercuts the 
proposed rule's presumption. One commenter likened the presumption in 
the proposed rule to the agencies presuming that all land was 
jurisdictional under section 404 of the CWA and then taking enforcement 
action based on that presumption without establishing that the agencies 
had jurisdiction. Another comment asserted that no technical analysis 
was offered to support the proposed rule's presumption.
    As previously discussed in section II C of today's preamble, the 
final rule does not establish a rebuttable presumption. Therefore, 
commenters' arguments about not meeting the legal prerequisites for 
establishing a rebuttable presumption in the legal sense are not 
relevant to the final rule. Instead of a rebuttable presumption, the 
rule states our view that we will regard the use of mechanized earth-
moving equipment to conduct landclearing, ditching, channelization, in-
stream mining or other earth-moving activity in waters of the U.S. as 
resulting in a discharge of dredged material unless project-specific 
evidence shows that the activity results in only incidental

[[Page 4561]]

fallback. In addition, in response to comments that we received, we 
have included in the final rule a descriptive definition of 
``incidental fallback.''
    As today's rule expressly provides that it does not shift any 
burden in CWA judicial or administrative proceedings, we do not agree 
that the rule has the effect of simply presuming jurisdiction, as the 
burden to show that a regulable discharge occurs has not been altered. 
Further, because we do not use a rebuttable presumption in today's 
final rule, the legal standards under the caselaw for judging the 
adequacy of an agency's record to justify a rebuttable presumption are 
not relevant to this rule. We also do not agree that today's rule 
results in a permit being required in every circumstance in which the 
activities listed occur. Today's rule continues to expressly provide 
that incidental fallback is not a regulable discharge, and also 
provides for project-specific consideration of whether only incidental 
fallback results from the activities addressed by the rule. We believe 
that the modified regulatory language provides a measure of regulatory 
certainty as to the types of activities that are likely to result in a 
regulable discharge, while preserving necessary flexibility to address 
the specific circumstances of a given project.
    We also believe that allowing for project-specific information that 
the activity is conducted in a manner that results in only incidental 
fallback is indicative of that flexibility, rather than undercutting 
the validity of our general view. With respect to consistency with 
legal precedent and the CWA, we have addressed such issues elsewhere in 
the preamble, primarily in sections II C and III A.
    Today's regulation is based on the nature of earth-moving equipment 
(i.e., machines that move the earth). Contrary to the assertion that no 
technical analysis was provided, the preamble to the proposed rule, as 
well as materials in the rule's record, do provide technical 
information supporting the reasonableness of the final rule. We also 
believe the rule is reasonable in that it helps ensure that activities 
resulting in discharges meant to be addressed by the CWA are in fact 
regulated. Moreover, the rule's explicit opportunity to consider 
project-specific evidence to the contrary, and express recognition that 
it does not shift any burden in any administrative or judicial 
proceeding under the CWA, ensures that activities outside our 
jurisdiction are not regulated.
    One commenter contended that excavation activities result in 
environmental benefits, providing an example that the size of certain 
unnamed drainages underwent a net expansion as the result of excavation 
at mine sites. Another comment asserted that the presumption was not 
reasonable because during the interval between the court decision and 
the publication of the proposed rule, the Corps, according to the 
commenter, had implicitly or explicitly acknowledged circumstances 
where excavation activities could be undertaken without a discharge 
requiring a section 404 permit.
    Whether or not one agrees that certain excavation activities result 
in a net expansion of waters or net benefit to the aquatic environment 
does not bear upon the issue of whether such activities produce 
regulable discharges. Many restoration activities and other 
environmentally beneficial efforts necessitate discharges into waters 
of the U.S., a number of which are provided authorization under 
Nationwide General Permits.
    A number of commenters requested clarification of, or objected to, 
the rebuttal process due to vagueness. These commenters sought further 
specifics as to the type of information that could be used to rebut the 
presumption and the standard of proof. In addition, they expressed 
concern that it would be difficult or impractical to rebut the 
presumption contained in the proposed rule. These commenters were 
concerned that the proposal placed an unfair burden on the landowner by 
requiring the applicant to prove a standardless proposition or not 
rebut the presumption and risk enforcement. These commenters believed 
it would be difficult to present a valid case because the proposal did 
not establish a set of clearly defined criteria for rebutting the 
presumption of discharge; some said that the rule seemed to require 
that a party undertake the activity with its inherent enforcement risks 
in order to provide evidence to rebut the presumption; others argued 
that the description of a regulable discharge is so broad that the 
presumption can not be rebutted. Others expressed concern that any 
effort to rebut the presumption would be extremely time-consuming, 
confusing, technically challenging and cost prohibitive. Other 
commenters expressed the view that the rule unfairly placed the burden 
of determining jurisdiction on the regulated community, a burden that 
should be borne by the government instead.
    As noted in the proposed rule preamble, the proposal expressed:

    * * * our expectation that, absent a demonstration to the 
contrary, the activities addressed in the proposed rule typically 
will result in more than incidental fallback and thus result in 
regulable redeposits of dredged material. It would not, however, 
establish a new formal process or new record keeping requirements, 
and Section 404 permitting and application requirements would 
continue to apply only to regulable discharges and not to incidental 
fallback.

65 FR 50113.
    The proposal would not have required project proponents or 
landowners to ``prove a negative'' or shift the burden of proof as to 
CWA jurisdiction from the government to the regulated community and the 
final rule clarifies our intent in this regard. As we have discussed in 
section II C of today's preamble, in light of comments received, we 
have revised the rule to make clear that it does not shift the burden 
of showing that a regulable discharge has occurred under the CWA, and 
also have included a descriptive definition of non-regulable incidental 
fallback in order to help provide a standard against which to judge 
regulable versus non-regulable redeposits. As a result, we do not 
believe the final rule somehow establishes or requires a time-consuming 
or expensive rebuttal process. Instead, it provides clarification to 
those who have unwittingly misread the NMA case to preclude regulation 
of all removal activities in waters of the United States. Issues 
related to the types of relevant information we will consider in 
determining if a regulable discharge has occurred are addressed in 
section II C of today's preamble.
    Other commenters felt the proposed rule's presumption was 
unreasonable in light of the exclusion provided for ``normal dredging 
operations.'' As in the original August 25, 1993, Tulloch Rule, several 
commenters suggested that all discharges of dredged material should be 
regulated, stating that it does not seem reasonable or consistent to 
exclude discharges incidental to ``normal dredging operations'' for 
navigation, while regulating excavation for non-navigation purposes.
    In response we note that today's rule does not modify in any 
respect the provisions of the 1993 rule related to normal dredging 
operations, and we have not reopened any of these provisions in this 
rulemaking. The rationale for the normal dredging operation provisions 
was explained in the August 25, 1993 rulemaking (58 FR 45025-45026), 
and interested readers are referred to that discussion for further 
details.

[[Page 4562]]

C. Reasonableness of rule as to specific activities

    Commenters cited a number of circumstances or scenarios that may or 
may not result in a regulable discharge. As a general matter, there was 
not sufficient information provided in the comments to provide a case-
specific response. The discussion below is not intended to be 
definitive, as an actual decision about whether a particular activity 
results in a discharge needs to be made on a case-by-case basis 
considering actual evidence of the particular activity in question. 
Literature citations and other information that such commenters 
provided have been added to the record for the rule.
    We received several comments regarding mining practices. One stated 
that for mining-related activities, they were unable to name examples 
of any equipment used that was not included on the proposed rule's 
referenced list as falling within the rebuttable presumption. 
Therefore, according to the commenter, the presumption had the effect 
of precluding ``per se'' all mining related activities performed with 
mechanized equipment in jurisdictional areas in contravention of the 
AMC and NMA decisions. Another asserted that under the proposed 
definition, most placer mines, suction dredges, and exploration 
trenches would be required to obtain an individual section 404 permit. 
As discussed in section II C of today's preamble, the final rule does 
not establish a rebuttable presumption, and provides for consideration 
of project-specific information to determine if a discharge results. We 
thus do not believe that today's rule has the effect of ``per se'' 
precluding or regulating all activities conducted with mining equipment 
in waters of the U.S. For example, as noted in section III A 1 a of 
today's preamble, some suction dredging can be conducted in such a way 
as not to produce a regulable discharge.
    Several commenters raised scenarios involving in-stream mining or 
other mechanized activities in dry, intermittent streambeds, 
particularly of the kind that may occur in arid regions of the country. 
One stated that excavation activities in arid regions would not result 
in the ``parade of horribles'' that the agencies presume result from 
excavation. One commenter put forward two specific scenarios of in-
stream mining activities that he believed were not covered as regulated 
discharges. They were the use of a front-end loader to scoop out 
material from a dry, intermittent stream up against the stream bank or 
other face, and the use of a scraper to move material out of the dry 
stream. Some commenters contended that such activities are conducted 
with little or no sediment redeposition, stating they do not involve 
the uprooting of vegetation and are undertaken when the stream bed is 
completely dry after winter flow ends and before the threat of the 
first flow in the next winter. Other comments stated that it was 
necessary to recognize that the southwest is different from the east 
where ``real wetlands'' exist, contending that, in the west, wetlands 
for the most part are only wetlands because the government says they 
are. The commenters believed that one rule should not apply to all, and 
that the vast majority of the drainages located in the southwest are in 
arid climates, which in many instances involve nothing more than 
isolated ephemeral streams, or dry washes with very little if any 
aquatic resources and with flows that occur only in response to 
infrequent rains and effluent from stormwater discharge. Still other 
comments focused on flood control maintenance activities where they 
asserted the disturbances are minimal and include only minor water 
quality impacts such as deposit and removal of sediments to maintain 
flow conveyance. They stated their activities are typically performed 
in a dry riverbed or channel, where there are no aquatic resources, the 
material in the channel is primarily sand and gravel, and the potential 
for downstream impacts are minimal.
    We acknowledge that the presence or absence of water in a 
jurisdictional stream or other jurisdictional area is a project-
specific fact that would need to be considered in deciding whether an 
activity results in only incidental fallback or a regulable discharge. 
While we agree that the presence or absence of water is relevant to 
determining whether a discharge has occurred due to suspension and 
transport of material to a new location, regulable discharges can still 
occur in a dry streambed when mechanized equipment is used to push 
materials from one area of jurisdictional water to another. Discharges 
can also occur when material is deposited in such a way as to cause 
materials to slide back into the jurisdictional area.
    Several commenters contended that by establishing a rebuttable 
presumption that mechanized landclearing produces more than incidental 
fallback, the proposed rule would have resulted in undue hardship by 
subjecting them to environmental review. They believe that the stated 
rationale for the agencies' proposed presumption with respect to 
mechanized landclearing fails to consider the clearly ``incidental'' 
nature of any soil movement associated with such activity. Another 
commenter maintained that landclearing activities, such as grubbing and 
raking with a small D-7 Caterpillar bulldozer, along with a K-G blade 
and a root rake, can be conducted so that the only soil displaced 
during a landclearing would be that which would ``stick to and 
sometimes fall off the tracks of the bulldozer,'' or would be ``scraped 
off the blade,'' or would be ``pushed up by [a] stump or stuck to [a] 
stump or its root mass as it was knocked over and pulled from the 
ground.'' This commenter also maintained that the agencies were well 
aware of such landclearing techniques and should acknowledge that they 
do not produce regulable discharges.
    In response, we first note that the final rule has eliminated the 
use of a rebuttable presumption. As stated elsewhere in today's 
preamble, the use of mechanized earth-moving equipment to conduct 
landclearing, because it typically involves movement of soils around a 
site, would typically involve more than incidental fallback. It is 
difficult to give generalized conclusions regarding specific 
subcategories of activities or practices, particularly where the 
description of the activities lacks detail. Whether a particular 
activity results in a discharge, or only incidental fallback, 
necessarily depends upon the particular circumstances of how that 
activity is conducted, and as a result, today's final rule allows for 
project-specific considerations. We also note that in the NAHB Motion 
Decision, the Court declined to decide, on a general level, that the 
displacing of soils, sediments, debris, or vegetation incidental to the 
use of root rakes and excavating root systems or knocking down or 
uplifting trees and stumps to be non-regulable under section 404. NAHB 
Motion Decision at 15. Whether or not these types of activities are 
conducted so as to avoid a regulable discharge depends upon project-
specific considerations, which today's final rule provides for. See 
also section III A 1 of today's preamble for further discussion of 
certain activities, such as use of K-G blades.
    Numerous commenters suggested that a backhoe was the classic 
example of how digging could be done with no more than incidental 
fallback. They believed that one-motion excavation, such as excavation 
with a conventional hydraulic-armed bucket (e.g., trackhoe or backhoe), 
can be easily accomplished with only incidental fallback resulting. 
They contended that the small amount of material that falls from the 
bucket is,

[[Page 4563]]

by definition, incidental to the operation of the bucket and the 
excavation and that no dredged material is introduced into the 
jurisdictional area, meaning a regulable discharge has not occurred. In 
summary, they believed that the proposed rule was too inclusive and 
should explicitly exclude certain types of excavation from the 
presumption of discharge.
    The preamble to today's rule clearly recognizes that there are 
situations where, due to the nature of the equipment used and its 
method of operation, a redeposit may be limited to ``incidental 
fallback.'' As emphasized repeatedly, today's rule would continue to 
exclude incidental fallback from regulation under section 404. We note, 
however, that backhoes by their nature (i.e., the size of the 
excavation machinery) are typically used to move more than small 
volumes of material in the course of excavation, and are thus likely to 
result in redeposits that exceed the definition of incidental fallback 
(i.e., ``small volumes of dredged material * * * [that] * * * falls 
back to substantially the same place as the initial removal.'') 
However, the rule allows for project-specific evaluation of whether 
only incidental fallback occurs, and the definition of incidental 
fallback includes as an example ``the back-spill that comes off a 
bucket when such small volume of soil or dirt falls into substantially 
the same place from which it was initially removed.''
    One commenter suggested that discing is not excavation, since there 
is no removal, but merely minor displacement. They believed that the 
proposed rulemaking suggests that disking results in more than 
incidental fallback, and they question how there can be any fallback of 
any nature where there is no excavation. Another commenter challenged 
the reasonableness of the presumption, because not all mechanized 
activities first ``remove'' material from waters of the U.S. and 
therefore such activities could not result in material being 
redeposited.
    We acknowledge that there are mechanized activities that do not 
first excavate or remove material and therefore redepositional 
discharges do not occur (e.g., the driving of piles in many 
circumstances). However, we also note that by pushing or redistributing 
soil, activities other than excavation can result in the addition of 
dredged material to a new location, and hence produce a regulable 
discharge.
    Several commenters discussed the routine operation and maintenance 
of numerous existing flood control channels, levees and detention 
basins. They stated that existing facilities are vital to tax-paying 
citizens since they are critically needed to protect their health and 
safety. They also stated the intent of a flood control excavation 
project is to maintain hydraulic capacity and entirely remove 
accumulated sediment and debris from the facility, restoring it to its 
original lines and grades. They contended that the implementation of 
existing maintenance-related Best Management Practices addresses 
negative impacts of this work. Additionally they asserted that, under 
current regulation, no permit is required for excavation, the work can 
proceed in a timely manner, and costly submittals are not needed. They 
also contended that their ``finished products'' enhance, protect and 
maintain water quality. The commenters were concerned that all of their 
excavation projects under the proposed rule would be presumed to 
include an ``addition'' of pollutants.
    One commenter, on behalf of a water authority, stated that they 
frequently engage in a number of activities subject to section 404 of 
the CWA, and which typically fall under the Nationwide permit program. 
Such activities include the construction of erosion control structures, 
channelization for temporary water diversions during construction of 
facilities, and building pipelines that infrequently occur in waters of 
the U.S. They stated that their efforts to enhance and restore wetlands 
often require mechanized landclearing to remove non-native, invasive 
vegetation. They asserted that, if implemented, the proposed revision 
would inappropriately deem these activities regulable discharges, when 
in fact they do not involve discharges beyond incidental fallback. 
Another commenter stated that they have restored several lakes, ponds, 
and sediment in streams with the one-step removal process under the 
Tulloch Rule. They utilize specialized low ground pressure equipment, 
to provide one step removal of accumulated sediments in a low impact 
manner to restore lakes, ponds, and streams. They also assert that they 
are very conscientious to prevent any fall back or otherwise discharges 
of materials into any waters of the U.S. and that they have very 
successfully restored many acres of U.S. waters, restoring aquatic 
habitat and navigability, and property values throughout their 
particular region of the U.S. They believed a distinction needs to be 
made between restoration activities to remove sediment from smothered 
aquatic habitats and draining jurisdictional areas to convert waters of 
the U.S. to upland uses.
    In response, we note that some of the routine discharges from 
operation and maintenance of existing flood control channels, levees 
and detention basins are exempt from regulation under CWA section 
404(f), and the exemption is not affected by this rule. Also, Corps 
Nationwide and Regional General Permits authorize some of the routine 
operation and maintenance work. We also note today's rule does not 
establish new requirements or procedures, and thus does not necessitate 
costly new submittals. Additionally, today's rule no longer establishes 
a rebuttable presumption, and project-specific information will be 
considered in determining whether an activity results in more than 
incidental fallback. If, as some of these commenters assert, their 
activities do not result in more than incidental fallback, then they 
would not be regulated under the CWA, nor are they currently regulated. 
We also note that because the determination of jurisdiction rests on 
the presence of a discharge of dredged material, which is not dependent 
upon either the effects of the activity or the intent of the person, 
the fact that an activity may or may not be beneficial, or is 
undertaken with the intent to remove material, does not form the basis 
for determining jurisdiction.
    One commenter was concerned that the proposed rule's presumption 
would seriously impede the ability of water users to maintain their 
diversion structures, irrigation ditches, retaining ponds and 
reservoirs. In light of the fact that the term ``waters of the U.S.'' 
determines the extent of the Corps jurisdiction under the CWA, they 
believed that the proposed rule would subject even the most routine 
maintenance of ditches, headgates and off-channel storage facilities to 
the permitting process and that resulting delays would hamper the 
efficient operation of water delivery systems, and jeopardize safety as 
well.
    Today's final rule does not establish a rebuttable presumption, and 
as discussed in section II C and III A of today's preamble, would not 
result in the regulation of incidental fallback. We also note that 
because the determination of jurisdiction rests on the presence of a 
discharge of dredged material, which is not dependent upon the effects 
of the activity, the fact that an activity may or may not be beneficial 
does not form the basis for determining jurisdiction.

D. Regulation on Basis of Toxics/Pollutant Releases

    A number of commenters from the science profession provided 
extensive

[[Page 4564]]

discussion regarding the discharge of pollutants. These scientists 
contended that mechanized excavation and drainage activities in 
wetlands, rivers and streams almost always cause the discharge of 
pollutants into waters of the U.S., and frequently result in severely 
harmful environmental effects. They noted that it is well-established 
in the peer-reviewed scientific literature that wetlands and many parts 
of river and stream beds act as natural sinks, collecting sediment, 
nutrients, heavy metals (e.g. lead, mercury, cadmium, zinc) toxic 
organic compounds (e.g., polycyclic aromatic hydrocarbons-PAHs, 
polychlorinated biphenyls-PCBs) and other pollutants which enter 
wetlands through polluted runoff, direct discharges, and atmospheric 
deposition. Moreover, they provided citations which describe other 
characteristics of wetlands and water bottoms that also play an 
important role in storing precipitated metals and other pollutants. For 
instance, over time, fresh layers of sediment added to wetland and 
river and stream beds can gradually bury and sequester trace metals and 
toxics. Vegetation also helps soils immobilize toxins and heavy metals 
by attenuating flow of surface waters and stabilizing the substrate, 
allowing metal-contaminated suspended particles to settle into 
sediment.
    Furthermore, these commenters cited scientific literature which 
illustrates that wetland soils and river and stream beds immobilize 
toxins and heavy metals and other pollutants. Briefly summarized, these 
indicate that anaerobic conditions occur when wetland, river, and 
stream soils are saturated by water for a sufficient length of time; 
microbial decomposition of organic matter in the sediment produces 
anaerobic conditions. The anaerobic soil environment, with the 
accompanying neutral pH levels and presence of organic matter in the 
sediment, triggers different chemical and microbial processes in the 
soils. These characteristic conditions of wetland, river, and stream 
soils result in the precipitation of trace and toxic metals as 
inorganic compounds, or complexed with large molecular-weight organic 
material--effectively immobilizing these compounds.
    These commenters maintained, and provided citations illustrating, 
that when a wetland is ditched or drained, or a riverbed excavated, 
channelized or dredged, mechanized activities dislodge some of the 
sediments and resuspend them in the water column from both the bottom 
and the sides of the ditch or other waterbody. Water draining from 
ditched or excavated wetlands carries suspended sediments down ditches 
to receiving waters; similar resuspension and downstream movement occur 
when river and stream bottoms are channelized. They furthermore 
provided supporting literature from scientific journals documenting 
that when wetlands are ditched or drained or rivers and streams 
excavated, some pollutants move into the water column. As described, 
when wetlands soils are exposed to air, the anaerobic, neutral pH 
conditions that promoted toxins and heavy metals to precipitate-out can 
shift to aerobic conditions, and the soil chemistry is transformed by 
the oxidizing environment and possible shift in pH. The mobility of 
metals bound in sediment is generally determined by pH, oxidation-
reduction conditions, and organic complexation--thus, precipitates may 
begin to dissolve and become available for transport when soils are 
exposed to air. Contaminated sediment resuspension does not usually 
result in a pH change in rivers; but there, as in wetlands, microbial 
action can release such pollutants as trace elements during the 
reoxidation of anoxic sediments that subsequently flow into drainage 
ditches and into receiving waters.
    Finally, commenters from the science community pointed out that 
turbulence prolongs the suspension of sediment and contaminants in the 
water column, so moving water (e.g., drainage ditches) retains 
suspended materials longer than standing water. In general, organic 
chemicals and toxic metals are more likely to be attached to smaller, 
lighter particles, which also are more likely to remain suspended in 
the water column. The commenters noted that smaller particles may also 
give up organic chemicals more efficiently than larger particles. Thus, 
they assert, exposing contaminated sediment to the water column causes 
some dissolution of pollutants, while the direct discharge of sediment 
into the water during dredging accelerates the release of contaminants.
    The agencies thank these commenters for their detailed discussion 
of current scientific literature, which we have included in the 
administrative record. We agree that the evidence presented points to 
the harmful environmental effects that can be associated with 
redeposits of dredged material incidental to excavation activity within 
a particular water of the United States, even those redposits occurring 
in close proximity the point of initial removal. To the extent 
commenters believe that we should determine the scope of our 
jurisdiction based on such environmental effects, however, we decline 
to do so. As stated previously, today's rule does not adopt an effect-
based test to determining whether a redeposit is regulated, but instead 
defines jurisdiction based on the definition of ``discharge of a 
pollutant'' in the Act and relevant caselaw. We have chosen to define 
our jurisdiction based not on the effects of the discharge, but on its 
physical characteristics--i.e., whether the amount and location of the 
redeposit renders it incidental fallback or a regulated discharge. 
Nonetheless, the evidence reviewed in these comments points to serious 
environmental concerns that can be associated with redeposits other 
than incidental fallback (which are regulated under today's rule), and 
support the agencies' view that it would not be appropriate, as 
suggested by some commenters, to establish quantitative volume or other 
``significance'' thresholds before asserting jurisdiction over such 
redeposits.
    One technical commenter contended that the likelihood of toxicant 
release and mobility is many times greater for navigational dredging 
than it is for most other excavation activities, especially in 
wetlands. This commenter asserted that the primary reason for this is 
that the vast majority of excavation projects that would be subject to 
the proposed rule do not have toxic substances in toxic amounts present 
in the natural soils, but many navigational dredging projects in 
commercial ports do. The commenter stated that while it is true that 
some contaminants may be more mobile in an oxidized than reduced state, 
the conclusion that contaminants will be released from normal 
excavation project activities is without technical merit. The commenter 
further recommended that since the effects of navigational dredging 
were determined to be acceptable, the results of those same studies 
should be used to establish what is more than incidental fallback. As 
noted in today's preamble, the potential for release and distribution 
of pollutants contained in dredged material is a factor that would be 
considered in determining if a regulable discharge of dredged material 
beyond the place of initial removal results. We do not agree with the 
apparent suggestion that wetlands soils are necessarily in a pristine 
or natural state. As discussed in the proposed rule's preamble, 
wetlands can act as sinks for pollutants, and sequester contaminants. 
In addition, we note that the 404 program applies to waters of the 
U.S., which include not just wetlands, but rivers, lakes, harbors and 
the like as well. Finally, we do not agree that the environmental 
effects of harbor dredging should somehow be

[[Page 4565]]

used to establish what is more than incidental fallback. As previously 
noted in section III A 1 d of today's preamble and also discussed 
below, we do not believe that use of an effects-based test for 
jurisdiction is appropriate in light of the AMC and NMA decisions.
    Other commenters strongly opposed the idea that the transport of 
dredged material downstream or the release of pollutants as a result of 
excavation activities should be treated as a discharge. Some of these 
commenters asserted that consideration of impacts on water quality 
resulted in the use of an ``effects-based test'' to establish 
jurisdiction, which they indicated was not allowable under the NMA 
decision. Others expressed the view that such an interpretation would 
result in regulation of incidental fallback and thus not be allowable.
    These comments refer to the discussion in the proposed rule's 
preamble regarding the information that we would use to evaluate 
whether a regulable discharge has occurred. Among other things, that 
preamble stated:

    In evaluating [whether regulable discharges have occurred], the 
permitting authority will consider the nature of the equipment and 
its method of operation and whether redeposited material is 
suspended in the water column so as to release contaminants or 
increase turbidity, as well as whether downstream transportation and 
relocation of redeposited dredged material results.

65 Fed. Reg. at 50113.
    The agencies continue to believe that when determining whether a 
discharge has occurred, it is relevant and appropriate to consider 
whether an activity results in the release and distribution of 
sequestered pollutants into the water column or in suspended material 
being carried away from the place of removal before settling out. In 
such cases, a pollutant is being added to a new location. This is not 
the use of an ``effects-based test'' to establish the existence of a 
discharge, but rather recognizes that when pollutants are released or 
relocated as a result of the use of earth-moving equipment, this can 
result in the ``addition'' of a ``pollutant'' from a ``point source'' 
to ``waters of the U.S.,'' and thus constitute a regulable discharge. 
In Deaton, the Fourth Circuit recognized that one of the reasons 
sidecasting should be treated as a regulable discharge is that: ``When 
a wetland is dredged, however, and the dredged spoil is redeposited in 
the water or wetland, pollutants that had been trapped may be suddenly 
released.'' Deaton, 209 F.3d at 336. The NMA court indicated that 
resuspension should not be used to regulate excavation and dredging 
activities that result only in incidental fallback. 145 F.3d at 1407. 
We would consider the nature and amount of any resuspension and 
transport in determining whether a regulable discharge occurred.
    We also do not agree that allowing for consideration of the release 
of pollutants contained in the dredged material into the water column 
and the transport of suspended material downstream would necessarily 
result in the regulation of incidental fallback. These are relevant 
factors in determining if material has been moved to a new location, 
and consequently resulted in the addition of a pollutant to a new area. 
However, in evaluating these considerations, we would take into account 
the volume and location of redeposited material so as not to regulate 
incidental fallback.
    A number of other commenters requested that the proposed rule be 
strengthened so as to require a permit for excavation and 
channelization activities which release even small amounts of 
pollutants (such as heavy metals or PCBs) into the water column or 
which would result in their transport down stream. Under today's rule, 
such pollutants (which constitute dredged material by virtue of having 
been dredged or excavated from waters of the U.S.) (see e.g., 40 CFR 
232.2 (defining dredged material as ``material that is dredged or 
excavated from waters of the U.S.)) would be regulated if resuspended 
and transported to a location beyond the place of initial removal in 
such volume so as to constitute other than incidental fallback. We 
believe that is the appropriate test for evaluating any redeposit of 
dredged material, for reasons stated previously. As explained elsewhere 
in today's preamble, we expect that the use of mechanized earth-moving 
equipment in waters of the U.S. will generally result in a regulable 
discharge. However, we do not believe that it is appropriate to per se 
treat the redeposits described by these comments as a discharge of 
dredged material, as consideration needs to be given to the factors of 
each particular case in making a regulatory decision.

E. Need for Brightline Test

    Many commenters expressed concern that the proposal did not provide 
a clear definition of what constitutes a regulable discharge or 
incidental fallback. Many of these commenters were concerned that 
without clear standards that the regulated community or the regulators 
can use in order to determine when an activity is subject to federal 
jurisdiction, the proposal would have resulted in a system that was 
arbitrary and uncertain and was too vague in light of the CWA's civil 
and criminal penalty scheme. Some of these commenters expressed the 
view that without clear standards the rule would be void for vagueness, 
not meet the due process standard of providing fair warning of what 
activities are regulated, or violate the Constitution's non-delegation 
doctrine as construed in American Trucking Association v. Browner, 175 
F.3d 1027 (D.C. Cir. 1999). Commenters also expressed concern that this 
would result in uncertainty and the need for subjective case-by-case 
determinations. Many of those concerned with the lack of a definition 
requested the proposal be withdrawn and re-proposed to include such a 
provision; some of these also indicated that guidance on what 
constitutes a regulable discharge versus incidental fallback needs to 
take the form of a rule, and should not be attempted through informal 
guidance.
    Our May 10, 1999, rulemaking amended the substantive aspects of the 
definition of ``discharge of dredged material'' to provide that we no 
longer would regulate ``any'' redeposit, and that ``incidental 
fallback'' was not subject to regulation. That continues to be the case 
under today's final rule. As noted in section II B of today's preamble, 
the May 10 rulemaking was considered by the NMA court in its September 
13, 2000, opinion and found to be in compliance with the AMC and NMA 
opinions and associated injunction. NAHB Motion Decision at 10. Today's 
rule does not alter the substantive regulatory definition of what 
constitutes a discharge. Rather than create arbitrary or unclear 
standards as some commenters have claimed, today's rule provides 
additional clarification for both industry and the regulatory agencies 
as to what types of activities are likely to result in regulable 
discharges.
    In addition, the preamble to the proposed rule did provide guidance 
as to the agencies' views on what constitutes a regulable redeposit 
versus incidental fallback. For example, that preamble explained that 
as the NMA court and other judicial decisions recognize, the redeposit 
of dredged material ``some distance'' from the point of removal (see 
NMA, 145 F.3d at 1407) can be a regulable discharge. Similarly, the 
preamble noted the language from the NMA opinion describing what 
constitutes incidental fallback: involving the return of ``. . . 
dredged material virtually to the spot from which it came'' (145 F.3d 
at 1403), as well as occurring ``when redeposit takes

[[Page 4566]]

place in substantially the same spot as the initial removal.'' 145 F.3d 
at 1401). Moreover, as explained in section II C of today's preamble, 
in response to comments on the need for a definition of incidental 
fallback, we have modified the final rule to include a descriptive 
definition consistent with relevant case law. Since the definition of 
incidental fallback reflects discussion in the AMC and NMA opinions of 
incidental fallback, and those cases were discussed in the preamble to 
the proposed rule, we do not believe that this revision to our proposal 
necessitates reproposal.
    A number of commenters requested that the agencies adopt a 
``brightline test'' to distinguish between incidental fallback on the 
one hand and regulable discharges on the other. Some of the commenters 
opposed to the proposed rule expressed the view that the proposal was 
contrary to the NMA decision and the preamble to the agencies' earlier 
May 10, 1999, rulemaking, in that it did not provide a sufficiently 
reasoned or clear attempt to draw a line between incidental fallback 
and regulable redeposits. We believe that the descriptive definition of 
incidental fallback in today's rule will provide greater certainty, but 
do not agree that the court in NMA mandated that we take any particular 
approach to defining our regulatory jurisdiction. NMA only stated that 
``a reasoned attempt by the agencies to draw such a line would merit 
considerable deference.'' 145 F.2d at 1405 (footnote omitted). As 
discussed previously, a descriptive definition of incidental fallback 
has been added to today's final rule. We do not believe that a more 
detailed definition is appropriate at this time.
    Some comments suggested drawing a bright line on the basis of 
measurable criteria such as cubic yards of dredged material, total 
acres of land disturbed, gallons of water removed, tons of sediment 
disposed, or similar measures. Although consideration of factors such 
as the volume and amount of the material and nature and distance of 
relocation are relevant in determining whether incidental fallback or a 
regulable discharge occurs, these factors are inter-twined with one 
another, and do not lend themselves to a segregable hard and fast 
quantification of each specific factor (or combination of factors) so 
as to give rise to a hard and fast test. Moreover, we are not aware of, 
nor have commenters suggested, a sound technical or legal basis on 
which to establish brightline quantifiable limits on such factors. For 
example, we do not believe it is technically sound or feasible to 
simply establish universally applicable cut-off points for amount or 
distance.
    Another commenter requested a brightline test be established by 
having the rule state a presumption against discharge for incidental 
soil movement associated with mechanized landclearing and excavation 
activities. More specifically, this commenter recommended that the rule 
provide that no discharge results from incidental soil movement 
associated with mechanized landclearing, ditching, channelization, 
draining, in-stream mining, or other mechanized excavation activity 
such as when (1) excavated soils and sediments fall from a bucket, 
blade or other implement back to the same general area from which it 
was removed; (2) surface soils, sediments, debris or vegetation are 
scraped, displaced or penetrated incidental to the use of machinery; 
(3) excavation machinery is dragged through soils or sediments; or (4) 
vegetative root systems are exposed, or trees and stumps are knocked 
down or uplifted, incidental to the use of machinery. The commenter's 
recommendation went on to provide that otherwise the Agency may 
demonstrate on a case by case basis that mechanized excavation activity 
in waters of the U.S. results in the discharge of dredged material.
    We do not agree with this suggestion for a number of reasons. 
First, we believe a test of the ``same general area from which it was 
removed'' for determining whether incidental fallback has occurred 
could create the impression that material redeposited in virtually any 
part of the work area would not be a discharge, which we believe would 
be too broad of a test. As both NMA and Deaton recognize, for example, 
placement of dredged material in as close a proximity to the excavation 
point as the side of a ditch can result in a regulable redeposit. We 
thus believe a formulation based upon use of a ``same general area 
test'' to be too expansive to properly convey that short-distance 
relocations can result in regulable discharges. As discussed in section 
II C of today's preamble, we do believe a fair and objective reading of 
the AMC and NMA cases and the NAHB Motion Decision, as well as other 
relevant redeposit cases discussed in that section of the preamble, is 
that incidental fallback occurs when redeposit takes place in 
``substantially'' the same place as the initial removal, and have so 
provided in today's final rule.
    Moreover, the examples provided by the commenter (e.g., dragging of 
equipment, scraping or displacement of soil or vegetation, uplifting of 
tree roots) often can result in the relocation and redeposit in waters 
of the U.S. of substantial volumes of material over considerable 
distances so as to constitute more than incidental fallback under the 
AMC and NMA opinions. The approach suggested by this commenter reflects 
perhaps a different conception of what constitutes incidental fallback 
than is contained in today's rule. If incidental fallback were to 
include any material incidentally redeposited in the course of 
mechanized activity, the establishment of a presumption of exclusion of 
the activities listed by the commenter might follow as reasonable. As 
discussed immediately above in this section, however, we believe that 
this formulation is not warranted and would be too broad. We believe 
that we have properly described incidental fallback in today's rule, 
and that it would not be reasonable to assume the activities listed by 
the commenter only cause incidental fallback. In fact, as today's rule 
clarifies, we regard such activities as typically resulting in more 
than incidental fallback, absent project-specific information to the 
contrary. However, there is substantial flexibility under today's rule 
to consider the types of activities listed by the commenter and 
determine on a case-by-case basis whether a specific project is subject 
to regulation.
    Other commenters recommended that while the term ``discharge'' 
should not encompass the fallback of material precisely to the same 
spot during excavation activities, when the movement of the dredged 
material raises new environmental concerns (such as release of 
pollutants into the water column or more ready erosion of the material 
and movement downstream), this relocation should be treated as a 
discharge. These and other commenters also requested that the rule make 
clear that a permit is required for excavation and channelization 
activities which release even small amounts of pollutants (such as 
heavy metals or PCBs) into the water column or which would result in 
their transport downstream. For reasons stated previously, we do not 
agree that whether an activity results in new environmental concerns 
should be used as the basis for establishing jurisdiction. As discussed 
in both the proposed rule's and today's preamble, the nature and amount 
of transport and resettling of excavated material downstream from the 
area of removal, or release of pollutants previously bound up in 
sediment beyond the place of initial removal, are relevant factors to 
consider in determining if movement and relocation other than 
incidental fallback

[[Page 4567]]

has occurred. Thus, these factors are relevant to determining whether a 
redeposit other than incidental fallback occurs, and are not used to 
assert jurisdiction on the basis of environmental effects.
    Other comments urged that the rule identify certain activities as 
always requiring a permit or consisting of a regulable discharge. 
Examples mentioned in such comments included sidecasting, backfilling, 
and stockpiling; those supporting strengthening of the proposal also 
included bulldozing, grading, and leveling as always requiring a 
section 404 permit. As previously discussed in section II C of today's 
preamble and the preamble to the proposed rule, case law has found a 
number of activities (e.g., sidecasting, backfilling of trenches) to be 
regulable discharges under section 404. We believe the preamble 
discussion on these points to be sufficiently clear and that inclusion 
of such specific examples in the regulation itself is unnecessary. To 
the extent grading and leveling involve redistribution of soils in 
waters of the U.S. around a site to create a level area, such 
activities would appear to typically involve not only a discharge of 
dredged material (through the pushing of dredged material from one 
location to another) but also possibly fill material (by filling low 
areas). See Avoyelles (movement of soils to depressed areas as 
discharge of fill material). In any event, case law on redeposit issues 
continues to evolve over time. Accordingly, we do not believe the 
listing of specific examples of discharges in the regulation itself to 
be appropriate.

F. Clarity of Proposal and Implementation Issues

1. Clarity
    A number of commenters sought clarification with regard to section 
404(f), as they were concerned or confused by the references to section 
404(f) in the preamble to the proposed rule. Most of these commenters 
interpreted the preamble language to indicate that the rule would 
establish that certain silviculture or farming activities described in 
section 404(f) as being exempt from permit requirements would now be 
subject to regulation, particularly because these activities may 
involve the types of machinery and actions referenced in the proposal.
    We regret that the references to section 404(f) in the preamble may 
have caused confusion regarding the relationship of section 404(f) to 
the rulemaking and emphasize that today's rule does not change the 
interpretation or use of the exemptions in any manner. Today's rule 
concerns the fundamental issue of what activities result in a discharge 
that is regulated under section 404. The section 404(f) exemptions 
describe those activities that, although resulting in a discharge, do 
not require a permit if they are conducted consistent with that 
provision. Activities covered by section 404(f), including 
silviculture, ranching, and agriculture, involving the use of equipment 
and methods such as those described in the rulemaking remain exempt, 
subject to the provisions of section 404(f), and are not altered by 
today's rule.
2. Comment Period
    Two commenters requested an extension of the public comment period 
in order to better gauge the effects of the rule on their membership. 
One of these requested additional time to assess the potential impacts 
of the proposal on their industry and also requested a public hearing 
on the proposal. The other commenter expressed the view that the 
proposal was fundamentally different from previous iterations of the 
Tulloch Rule, and sought additional time in order to obtain more 
information on the physical settings and the use of many types of 
equipment by its membership. We believe that a 60-day comment period 
was adequate time to obtain widespread and effective public comment and 
that extending the public comment period or holding a public hearing is 
unnecessary. In general, it appears the public understood the proposal 
and was able to provide comments in a timely fashion. Of the 
approximately 9,650 comments that were received, only two sought an 
extension of the comment period, and only one of those requested a 
hearing. In addition, those two commenters did file specific and 
substantive comments within the 60-day comment period.
3. Implementation
    A number of commenters raised issues associated with the 
implementation of the rule, including the ability of the agencies to 
effectively enforce, monitor, and budget for it, as well as the 
appropriate exercise of discretion on behalf of the agencies. Several 
commenters indicated that the agencies need to dedicate enough staff 
and other resources necessary to effectively enforce the rule. One 
commenter specifically recommended that the agencies request the 
necessary funding from Congress to allow effective implementation. 
Another commenter specifically mentioned the need for the agencies (or 
States or local governments) to monitor activities not requiring a 
permit, to determine if they were in fact not resulting in a discharge. 
One of these commenters supported review and documentation of completed 
projects determined a priori to not result in a discharge, to ensure 
that in fact no discharge resulted. One commenter who supported the 
objective of the proposed rule nonetheless recommended that we 
streamline the permitting process associated with activities that may 
involve incidental fallback. Another commenter specifically cited 
concern that the Corps would not be able to efficiently process permits 
and asserted that the processing of Nationwide General Permits is not 
as efficient as the agencies contend.
    We concur with the commenters who stated that it was important for 
us to have adequate resources to effectively enforce, monitor, and 
otherwise implement the proposed rule. Consistent with agency 
priorities for aquatic resource protection and our overall missions, we 
do propose budgets to adequately accomplish our CWA statutory 
objectives. Effective enforcement and monitoring is an important part 
of the section 404 regulatory program. We will coordinate with State 
and local partners to ensure that today's rule, as well as wetlands 
regulations, in general, have effective compliance. Over the last two 
years, unreported Tulloch activities presented a challenge to us in 
obtaining information on the extent and nature of wetlands destruction 
that has occurred following the NMA decision. While many of these 
challenges remain, we believe that satisfactory monitoring, in 
cooperation with others, can be accomplished to adequately track the 
results of today's rule. We agree that pre-project information alone 
should not necessarily be the basis for concluding that an activity 
results only in incidental fallback and that other measures, such as 
field investigation or site visits, may be needed to assess whether an 
activity has actually resulted in any regulable discharges.
    The agencies' goal is to work cooperatively with the public to 
ensure that their activities in the Nation's waters are fully 
consistent with the requirements of the Act and its implementing 
regulations, including today's rule. The Corps of Engineers is the 
principal contact for the public both in the context of responding to 
questions that arise prior to conducting any proposed activity in 
waters of the U.S., as well as monitoring permitted and unpermitted 
activities as they proceed in waters to verify compliance with permit 
conditions or, in the case of unpermitted activities, to ensure that no

[[Page 4568]]

regulable discharge takes place. Consistent with its statutory 
responsibilities and relevant Memoranda of Agreement between EPA and 
the Corps, EPA also may serve as the lead agency in determining whether 
a regulable discharge has occurred.
    It is a more effective use of agency resources and more efficient 
for project proponents to coordinate with the Corps before an activity 
in waters of the U.S. occurs to determine whether or not the project 
triggers the need for a CWA permit. We strongly recommend that anyone 
proposing projects which, for example, involve earth-moving activities 
using mechanized equipment such as bulldozers or backhoes contact the 
Corps well in advance of the project to determine whether or not a 
regulable discharge will occur. As appropriate, the Corps will also be 
involved in working with the public on a project-specific basis to 
monitor ongoing or completed projects which proceed without a section 
404 permit through site visits, remote sensing, field investigations 
and so forth to verify that no regulable discharges have occurred.
    With respect to streamlining the permit process for discharges that 
may involve incidental fallback, we note that neither the proposal nor 
today's rule establishes new procedural or informational requirements. 
In addition, we have provided additional discussion in today's preamble 
(see section II C) as well as a descriptive definition of incidental 
fallback in order to clarify the factors and information relevant to 
making the determination of incidental fallback versus regulable 
discharge. Given that case-specific evidence regarding whether an 
activity results only in incidental fallback will be considered, 
general authorizations based on a common set of circumstances would be 
inappropriate.
    We have undertaken a number of successful efforts to ensure that 
activities regulated under the section 404 program are evaluated in an 
efficient manner, while ensuring environmental protection. In 
particular, with regard to the comment on the development and use of 
Nationwide General permits, such permits have provided an efficient 
process for allowing discharges with truly minimal impacts to move 
forward with little regulatory review, consistent with conditions that 
provide for aquatic resource protection. Despite successive annual 
increases in the use of general permits over the last ten years, 
processing times have remained low. Some 63,780 general permits 
required a priori action on the part of the Corps in Fiscal Year 2000 
(as compared with approximately 4,313 individual permits), and these 
were evaluated in an average time of only 19 days.
    A number of commenters addressed the issue of discretion by the 
agencies in implementing today's rule. The majority of these commenters 
advocated that discretion on the part of Corps Districts should be 
minimized. Several commenters stressed the need for consistent 
interpretation and application of the rule, citing the fact that 
several State and local jurisdictions have multiple Corps Districts. 
Other commenters noted that national guidance or consultation with the 
Headquarters offices of the agencies should be required, particularly 
if any local operating procedures for the rule are developed. One 
commenter recommended that Corps field staff document all 
communications with potential dischargers and submit such information 
to Corps and EPA Headquarters for periodic review. One commenter 
indicated that if any determination is a ``close call'' with regard to 
whether or not a discharge constitutes incidental fallback, it should 
be considered regulated in order to err on the side of protecting 
wetlands. One commenter asked for clarification that previous 
understandings with Corps Districts regarding certain ``Tulloch'' 
activities would remain in effect, specifically mentioning the preamble 
text in the proposed rule regarding the cutting of vegetation, as well 
as the use of vehicles and other ``landclearing and excavation 
practices that have been deemed to fall within the exclusions . . . 
under the Tulloch Rule.'' Another commenter provided a specific example 
of guidance provided by a District that the commenter asserted ran 
counter to the agencies interpretation of the NMA decision: that 
entities ``may engage in instream mining and dredging if the intent of 
the work is to create a discharge of dredged material that results only 
in incidental fallback.''
    We concur with those commenters that advocate consistent 
implementation of today's rule across Corps Districts, but also 
recognize that the case-specific nature of incidental fallback 
determinations necessitates some element of discretion. We have 
developed guidance on program implementation in light of the AMC and 
NMA decisions (issued on April 11, 1997, and updated on July 10, 1998), 
as well as provided further guidance in the May 10, 1999, rulemaking 
and today's rulemaking action. As additional issues are raised in the 
application of today's rule that lend themselves to additional 
guidance, we will provide such guidance. Moreover, to the extent that 
regional circumstances allow regional guidance to be provided on 
circumstances common to a particular part of the country, we will 
provide that as well. In the preparation of any regional guidance and 
in the consideration of ``close calls,'' our headquarters will provide 
oversight and review to assist our field staff in reaching 
determinations that are consistent with governing law.
    With respect to previous understandings with Corps Districts 
regarding the regulation of certain ``Tulloch'' activities, today's 
rule describes how potential discharges will be addressed. While the 
lack of specific details in many of the specific comments prevents us 
from making a determination here, we can clarify that the cutting of 
vegetation above the roots is not regulated as a discharge of dredged 
material under section 404. 33 CFR 323.2(d)(2)(ii) and 40 CFR 232.2. 
Likewise, driving vehicles such as cars, off-road vehicles, or farm 
tractors through a wetland in a manner in which such vehicle is 
designed to be used generally is not subject to regulation under CWA 
section 404. See our August 4, 1995, guidance entitled ``Applicability 
of Clean Water Act Section 404 to Vehicle Use in Waters of the U.S.'' 
Landclearing and excavation practices are discussed above in section 
III C of today's preamble. With respect to the comment on guidance said 
to have been provided by a District that entities ``may engage in 
instream mining and dredging if the intent of the work is to create a 
discharge of dredged material that results only in incidental 
fallback,'' the proper consideration is not the intent of the 
discharger, but whether, in fact, the activity results in only 
incidental fallback.
G. Need to Amend CWA
    One commenter, while disagreeing with the NMA decision and its 
reasoning, indicated that besides rulemaking, the agencies also should 
seek action by Congress to amend the CWA so as to clarify agency 
authority to fulfill their duty under the CWA to protect the Nation's 
waters. Other commenters who were opposed to the proposed rulemaking 
expressed the view that it was necessary to obtain an amendment to the 
CWA before, or instead of, proceeding with rulemaking. Many of these 
commenters believed that the proposed rule exceeded the agencies' 
authority under the CWA (see discussion in section III A of today's 
preamble) and thus could not be undertaken without an amendment to the 
Act. In fact, one such commenter suggested that language in EPA

[[Page 4569]]

Administrator Carol Browner's Press Release announcing the August 16, 
2000, proposal reflected a recognition that the agencies do not have 
the authority to undertake the action reflected in this rule because it 
called on ``Congress to strengthen the Clean Water Act to fully protect 
and restore America's wetlands.'' Others felt that in light of the 
uncertainties and importance of the issue it was appropriate or even 
necessary to wait for Congressional action before proceeding. We do not 
agree. We believe today's rule is entirely consistent with the current 
CWA and relevant case law, and helps to clarify for the regulated 
community and the agencies what activities are likely to result in 
regulable discharges. In keeping with the AMC and NMA cases and the 
NAHB Motion Decision, today's rule does not provide for regulation of 
``incidental fallback,'' and a descriptive definition of that term has 
been provided in today's rule language. The language in the press 
release calling on Congress to strengthen the Act was a recognition 
that the statute, as interpreted in AMC and NMA, does not extend to 
regulating incidental fallback. Since today's rule does not regulate 
incidental fallback, but rather articulates an approach to determining 
whether redeposits of dredged material come within our existing 
statutory authority, today's rule is consistent with both the press 
release and the CWA as interpreted by the courts.

H. Other Issues

1. Loss Data
    As noted in the proposed rule, available information indicated that 
more than 20,000 acres of wetlands were subject to ditching and more 
than 150 miles of stream channelized since the NMA decision. The 
activities causing such ``Tulloch'' losses typically take place without 
a CWA section 404 permit, and therefore are not systematically reported 
to either EPA or the Corps of Engineers. As a result, the numbers are 
believed to likely underestimate actual Tulloch losses. The proposed 
rule invited the public to submit further relevant information on 
Tulloch losses.
    One commenter suggested that this invitation to submit data on 
Tulloch losses was an attempt to establish a post hoc rationalization 
for today's rule. We disagree. The CWA section 404 establishes a 
regulatory program for discharges of dredged material into waters of 
the U.S. The Act does not establish a threshold of impacts after which 
an activity will be regulated, nor as explained in sections III A 4 and 
III D of today's preamble, does today's rule use an effects-based test 
to establish jurisdiction. As a result, we do not need aggregate data 
showing extensive Tulloch losses or impacts to justify today's 
rulemaking. Such information is nonetheless helpful in answering 
inquiries from the public about the impacts of Tulloch activities, as 
well as in helping focus our limited resources on important 
environmental problems.
    Many commenters emphasized that the uncertainty created by the NMA 
decision has led to a surge in wetlands drainage, resulting in deposits 
into wetlands of both unregulated ``incidental fallback'' and regulable 
redeposit of dredged material. Commenters expressed concern that 
project proponents may decide that a section 404 permit is not 
necessary and not contact the Corps for verification. One commenter 
described a philosophy of ``if you don't ask, you don't have to worry 
about being told no.'' Several commenters suggested that Tulloch losses 
will continue to increase until the regulatory definition of 
``discharge of dredged material'' is clarified and legislation closes 
the Tulloch ``loophole.'' We appreciate these concerns and believe that 
by setting forth our expectation as to activities that are likely to 
result in regulable discharges, today's rule will help enhance 
protection of the Nation's aquatic resources.
    Several commenters asserted that the proposal's estimates of 
Tulloch losses were conservative, and do not include impacts from 
numerous activities occurring throughout the U.S. For example, one 
commenter noted that its State data underestimated total wetland acres 
drained because estimates were based on less than 80% of identified 
sites on which unauthorized drainage had occurred. Other commenters 
emphasized that comprehensive data on Tulloch losses is difficult 
because developers are not contacting the Corps of Engineers or EPA 
about many of their projects. We agree that because Tulloch losses are 
not systematically reported, we have likely underestimated the 
magnitude of these losses.
    Numerous commenters submitted information about wetlands and stream 
losses since the decision in NMA, and emphasized that impacts are 
national in scope. One commenter noted that Tulloch losses have been 
reported in some of the six ecoregions in the U.S. that have been 
targeted for special investment due to their biological diversity, and 
expressed concern that future losses in these key regions could have 
serious impacts on tourism, fishing, and other industries reliant on 
ecological resources. Many commenters highlighted Tulloch losses in 
their areas, or described aquatic resources that could be destroyed by 
future projects unregulated due to the ``Tulloch loophole.'' These 
examples illustrate the nationwide implications of the NMA decision. 
Descriptions were received of losses in Arkansas, California, 
Connecticut, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, 
Nebraska, New York, North Carolina, Ohio, Oregon, Tennessee, Wisconsin, 
and Virginia, among others. Public comments providing these examples 
are included in the record for today's rule.
    Many commenters discussed the environmental effects of Tulloch 
losses. Some commenters noted that extensive ditching and drainage of 
wetlands had resulted in siltation, sedimentation, and turbidity 
violations in designated shellfish waters, primary and secondary 
fishery nursery areas, and other sensitive coastal and estuarine 
waters. Commenters described potential adverse effects of instream 
mining on anadromous fish habitat in the Pacific Northwest and other 
regions. Several commenters expressed concern about the potential 
impacts on prairie potholes and other wetlands that provide important 
habitat for migratory waterfowl. Several commenters expressed concern 
about impacts on neighbors of unregulated wetlands drainage. Other 
adverse environmental effects from Tulloch losses described by 
commenters included: flooding of neighboring businesses, homes and 
farms; degradation of receiving waters; shellfish bed closures; 
degradation of drinking water supplies; loss of critical habitat; loss 
of aesthetics; loss of recreational activities such as bird watching; 
and increased toxics loadings from disturbed sediments.
    Several commenters discussed the environmental impacts of the 
discharge of dredged material. One commenter quoted the court decision 
in Deaton, noting that the environmental impacts from the discharge of 
dredged material ``[a]re no less harmful when the dredged spoil is 
redeposited in the same wetland from which it was excavated. The 
effects of hydrology and the environment are the same.'' The adverse 
environmental impacts of discharge described by commenters included 
such effects as: increased turbidity; reduced light penetration; 
mortality of aquatic plants and animals; depletion of dissolved oxygen; 
resuspension of contaminants; release of pollutants (heavy metals, 
nutrients, and other chemicals) from suspended material;

[[Page 4570]]

biological uptake of pollutants; sedimentation and smothering of 
benthic organisms; algal population explosions; fish kills; nuisance 
odors; and a decline in biodiversity. As we noted in our discussion of 
the comments concerning the use of an effects based test to establish 
jurisdiction (see section III A 1 d of today's preamble), today's rule 
does not attempt to regulate activities beyond the scope of the CWA or 
base our jurisdiction on effects.
    Some commenters characterized as unsubstantiated the preamble's 
estimates of wetland acres lost and stream miles channelized after the 
Tulloch Rule's invalidation. One commenter also suggested that data on 
Tulloch losses should be grouped by industry category. We agree that 
precise comprehensive data on Tulloch impacts is difficult to collect. 
The estimates discussed in the proposal reflect projects that have come 
to the attention of agencies' field offices, through field 
observations, individual reports, and/or newspapers and other 
information sources. We believe that the preamble estimates of Tulloch 
losses are conservative, because persons undertaking such activities 
often proceed under the assumption that no authorization from the Corps 
is required. The proposal's request for information on Tulloch losses 
is intended to help ensure available data is as complete as possible. 
We do not agree, however, that the collection and categorization of 
data by industry is necessary, because today's rule does not regulate 
by industry category but on the basis of discharges to waters of the 
U.S.
    One commenter asserted that Tulloch losses have been more than 
offset by mitigation required for permitted losses, because the 
preamble to the proposal cites estimates of over 20,000 acres of 
unregulated wetlands loss after invalidation of the Tulloch Rule, plus 
an estimated 21,500 acres of wetlands lost through authorized 
activities in 1999, with 46,000 acres of compensatory mitigation 
obtained in 1999. However, only permitted losses resulted in obtaining 
compensatory mitigation. Compensatory mitigation ratios for permitted 
losses are typically higher than 1:1 to address a variety of factors 
considered during permit evaluation, such as the expected likelihood of 
success; the percentage of restoration, enhancement, and/or 
preservation intended; the temporal loss of functions and values before 
the mitigation is fully functioning; and other relevant considerations. 
Tulloch losses, on the other hand, involve activities which are not 
subject to environmental review or compensatory mitigation. Thus, the 
compensatory mitigation figures reported in the proposed rule's 
preamble were designed to offset permitted losses only, not Tulloch 
losses.
    One commenter disagreed about implications of wetlands losses, 
expressing doubt about whether wetlands losses might result in a 
potential for increased flooding, and characterizing the link between 
the two as an unsupported assumption. We note, however, that an 
extensive body of scientific literature indicates that wetlands 
typically store water at least temporarily, keeping it from flowing 
further downhill and downstream, thereby helping reduce the frequency 
and severity of flooding. For example, the U.S. Geological Survey's 
National Water Summary on Wetlands Resources (1996) notes that ``[i]n 
drainage basins with flat terrain that contains many depressions (for 
example, the prairie potholes and playa lake regions), lakes and 
wetlands store large volumes of snowmelt and (or) runoff. These 
wetlands have no natural outlets, and therefore this water is retained 
and does not contribute to local or regional flooding.'' Other studies, 
such as the 1994 report by the Interagency Floodplain Management Review 
Committee, similarly have found links between wetlands losses and 
flooding. Sharing the Challenge: Floodplain Management Into the 21st 
Century, at Vol. 1, pg. ix; Vol. V at pp 79-88.
2. Miscellaneous Issues
    One commenter raised an issue with respect to whether or not snow 
plowed into headwater creeks would be regulated by today's rule. 
Although we recognize that other Federal or State requirements may 
govern such an activity, we do not regulate snow plowing into waters of 
the U.S. under section 404. Today's rule addresses discharges of 
dredged material, which snow is not. However, if during a snow removal 
operation, snowplows, front loaders, bulldozers, or similar equipment 
discharge gravel, sand, or other material into waters of the U.S. or 
move sediment or soil to new locations within a water of the U.S., then 
such activities would be regulated under section 404.
    Some commenters raised concerns about the definition of ``waters of 
the U.S.,'' expressing the view that the term is very broad and may be 
overly inclusive. Today's rule clarifies the definition of the term 
``discharge of dredged material'' regulated under CWA section 404. It 
does not address the definition or scope of ``waters of the U.S.'' We 
are contemplating initiating rulemaking to clarify the definition of 
``waters of the U.S.'' (see the Unified Regulatory Agenda, 65 FR 23574 
(April 24, 2000)), and would encourage public comments on a proposed 
definition at that time. We also note issues related to the scope of 
``waters of the U.S.'' are currently pending before the Supreme Court 
in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 
Engineers (No. 99-1178) (SWANCC).
    One commenter indicated support for the deletion of the 
``grandfather'' provision that was a part of the previous definition of 
dredged material. We agree, and today's final rule deletes that 
provision as being out of date and no longer necessary.
    A number of commenters raised issues that, while related to 
wetlands regulation, were not germane to the proposed rule. Examples 
include comments regarding delineation methodology or geographic 
jurisdiction of the section 404 program, fill material regulation or 
the agencies proposed rulemaking regarding the definition of fill 
material, and general statements about section 404 regulation. These 
comments have been made available to other relevant dockets or 
addressed, as appropriate, in the record for today's rule.
3. Economic Issues
    Many commenters opposed to the rule expressed concern over its 
economic effects. Some of the commenters raising economic concerns 
believed that the proposal would have regulated ``incidental fallback'' 
or was a return to the Tulloch Rule invalidated by the court in AMC and 
NMA. Many of the comments raising economic issues questioned the 
discussion in the proposed rule's preamble that it did not alter or 
enlarge section 404 program jurisdiction or create information 
requirements. Other commenters expressed concern with the expense and 
difficulty of rebutting the presumption contained in the proposed rule, 
especially when, in their view, this was a standardless proposition. 
Another asserted their belief that the reference in the proposed rule 
preamble to ``potentially'' regulated entities was misleading, as all 
persons engaging in excavation activities listed in the rule would be 
regulated. Some of the commenters believed the proposal would have an 
annual economic effect of more than $100 million dollars, and that 
issuance of the proposal without a detailed economic analysis or 
consulting with affected entities violated the requirements of the

[[Page 4571]]

Regulatory Flexibility Act (RFA) as Amended by the Small Business 
Regulatory Enforcement Fairness Act or the Unfunded Mandates Reform Act 
(UMRA). Some of the commenters expressed concern that, coupled with the 
changes made in the Corps Nationwide Permit Program, the proposal would 
result in increased delays in obtaining authorizations; one commenter 
believed the proposal somehow superceded existing Nationwide Permits. 
Others questioned how the proposed rule could be deemed to have small 
economic effects when the preamble to the proposal noted upwards of 
20,000 acres of wetlands were subject to ditching and more than 150 
miles of streams channelized. Others questioned why, if the rule was 
not economically significant, it was deemed a ``significant regulatory 
action'' for purposes of Executive Order 12866. One commenter expressed 
concern over the absence of a grandfather provision.
    We continue to believe that the economic impacts of the rule will 
be insignificant. While some of the commenters expressing concern with 
economic impacts believed they would have to consult in advance with 
the Corps or that all excavation activities would be subject to 
regulation, this is not the case. Nothing in today's rule alters the 
current regulatory provisions that exclude incidental fallback from 
regulation as a discharge, provisions which were found to comply with 
the AMC and NMA decisions by the court in its NAHB Motion Decision. 
Today's rule does not alter that status quo, and we thus do not agree 
with commenters whose economic concerns were premised on the proposal 
somehow enlarging program jurisdiction or reinstating the invalidated 
Tulloch Rule. See also section III A of today's preamble for further 
discussion.
    Moreover, as noted in section II C of today's preamble, the final 
rule has been clarified in a number of respects to make clear it is not 
creating or imposing new process or information requirements and will 
not result in substantially increased workloads. First, it no longer 
uses a rebuttable presumption. Second, the final rule has been 
clarified to expressly provide that it does not alter any burden in any 
administrative or judicial proceeding under the CWA. Finally, we have 
provided a descriptive definition of incidental fallback which helps to 
clarify for both the regulated community and regulatory staff the type 
of redeposits which are not subject to regulation. In this respect, it 
may actually reduce costs for the potentially regulated entities 
conscientiously attempting to comply with the existing regulations. 
Moreover, as noted and discussed numerous times in today's preamble, 
the final rule continues to provide for project-specific considerations 
in determining if more than incidental fallback results. In this 
regard, the proposed rule's preamble reference to ``potentially'' 
regulated entities was intended to convey this case-by-case nature, and 
the final rule preamble thus continues to use that formulation. For all 
of these reasons, we continue to believe that today's rule does not 
have substantial economic effects, and does not trigger the 
requirements of the RFA as amended or UMRA.
    Today's rule does not affect section 404 Nationwide permits for 
dredged material discharges. Rather, it clarifies the types of 
activities which we regard as being likely to result in regulable 
discharges. Where only incidental fallback results, a regulable 
discharge of dredged material does not occur, and there is no 
obligation to obtain coverage under either an individual or a 
Nationwide permit. Some of the commenters expressed concern over 
lengthy permit review times under Nationwide and individual permits; we 
do not believe that the facts warrant these concerns and have included 
the most recent available statistics on permit review time in the 
administrative record for informational purposes, although, as just 
noted, the rule does not alter existing requirements for permit 
coverage. With regard to commenters raising concerns over the economic 
effects of changes that have been made in the Nationwide permit program 
(see 65 FR 12818), although outside the scope of today's rule, we note 
that the Corps has prepared and is continuing to work on economic 
documentation related to that program.
    We do not believe there is any inconsistency in the discussion of 
Tulloch losses in the proposed rule's preamble and the conclusion that 
the rule will not have significant economic effects. As evidenced by 
photos from field visits, some of those losses were accompanied by 
substantial relocation and movement of dredged material, and thus seem 
to reflect the mistaken belief that any excavation or drainage activity 
is exempt from regulation under CWA section 404, regardless of the 
presence of a discharge. Activities resulting in a discharge of dredged 
material already are subject to regulation under CWA section 404 and 
today's rule does not alter this jurisdictional prerequisite.
    With regard to questions concerning consistency of our conclusion 
that the rule does not have significant economic impacts even though it 
was submitted for review under Executive Order 12866, we have clarified 
in today's preamble (see section IV B below) that this submittal is not 
made on the basis of economic effects, but rather on the portion of 
that Executive Order addressing, among other things, rules which 
involve legal or policy issues arising out of legal mandates or the 
President's priorities. In light of past litigation challenging the 
1993 Tulloch Rule and the importance of effectively protecting our 
Nation's aquatic resources, the proposed and final rules were submitted 
for review under Executive Order 12866. Finally, with regard to the 
commenter expressing concern over the absence of a grandfather 
provision, we have not included one as today's rule still provides for 
consideration of project-specific information, and does not create new 
substantive or procedural requirements. We thus do not believe a 
grandfather provision is appropriate.
4. Tribal and Federalism Issues
    Several commenters raised concerns that the proposed rule would 
have substantial direct effects on States, and so is subject to the 
``Federalism'' Executive Order 13132 (64 FR 43255 (August 10, 1999)). 
One commenter additionally noted that the proposed rule imposes 
significant compliance costs on Tribal governments, and therefore must 
comply with the consultation requirements of Executive Order 13084. 
Some commenters were concerned specifically about the potential 
information burden of rebutting the presumption. We disagree that 
today's rule will have a substantial direct impact on States or impose 
significant compliance costs on Tribes. Today's rule does not change 
CWA section 404 program jurisdiction, nor affect a discharger's 
obligation to obtain a section 404 permit for discharges of dredged 
material into waters of the U.S. Section 404 always has regulated the 
``discharge of dredged material.'' Today's rule simply clarifies 
program expectations of what activities are likely to result in a 
regulable discharge. In addition, today's rule does not use the 
proposal's rebuttable presumption formulation, and has been clarified 
to expressly state it does not shift any burden in any administrative 
or judicial proceeding under the CWA.
    Two commenters suggested that the CWA section 404 program itself 
was inconsistent with federalism principles, because it imposed on the 
traditional State area of regulating land use or is only weakly 
connected to a Federal responsibility. Such comments are

[[Page 4572]]

beyond the scope of today's rulemaking. However, we do not agree that 
the section 404 program is inconsistent with federalism principles. 
Controlling the impacts of pollution and protecting natural resources 
has long been a matter of joint Federal and State concern, and the 
Federal government long has legislated in the field of environmental 
pollution control and resource protection. Section 404 does not 
constitute conventional land use planning or zoning, but instead is a 
form of environmental protection and pollution control that leaves the 
ultimate determination of land use to State and local authorities 
consistent with Federal pollution control requirements. In a case 
involving impacts of mining on Federal lands, the U.S. Supreme Court 
expressed the distinction this way: ``Land use planning in essence 
chooses particular uses for the land; environmental regulation, at its 
core, does not mandate particular uses of the land but requires only 
that, however the land is used, damage to the environment is kept 
within prescribed limits.'' (California Coastal Commission v. Granite 
Rock Co., 480 U.S. 572, 587 (1987)). Section 404 does not dictate the 
particular use for a parcel of property; it regulates the manner in 
which the proposed use can be accomplished by avoiding and/or 
mitigating the environmental impacts of a discharge of dredged or fill 
material into waters of the U.S.
    One commenter argued that the proposed rule unlawfully expanded 
Constitutional limits to the Corps' ability to protect biological 
resources, by including protection of habitat with significant 
biological value but little or no commercial value. The commenter 
stated that such habitat does not involve interstate commerce, and as a 
result is beyond Federal powers and should be protected by State and 
local governments. This issue is not within the scope of today's 
rulemaking and raises questions about the definition of ``waters of the 
U.S.'' which are currently pending before the U.S. Supreme Court in 
SWANNC. In addition, nothing in today's rule limits a State or local 
government's ability to protect habitat and other resources.
    One commenter suggested that Federal regulation is not necessary 
because ample State and local authority exists to protect wetlands. 
Again, this issue is beyond the scope of today's rulemaking. We 
disagree about the lack of a need for a Federal presence in wetlands 
regulation. The Federal wetlands program both addresses interstate 
issues arising from wetlands protection, and helps support the States' 
own environmental objectives. For example, the section 404 program 
helps protect States from the effects that filling of wetlands in one 
State may have on water quality, flood control, and wildlife in another 
State. States with wetlands programs might coordinate closely with the 
Federal program, as a means of avoiding duplication and reducing any 
administrative burden. For example, States might choose to coordinate 
their environmental studies with Federal initiatives or to use Federal 
expertise in identification and mapping of wetlands. We also note that 
in the SWANCC case, eight states filed an amicus brief explaining the 
benefits of 404 regulation to the states and expressing their support 
for such regulation (CA, IA, ME, NJ, OK, OR, VT, and WA).
    One commenter argued that no Federal reason has been demonstrated 
for regulating activities such as ditching and channelization, and the 
proposal should not be finalized until an economic analysis is 
completed that supports a valid Federal reason to ``expand'' the Corps' 
authority. Another commenter noted that the NMA decision has forced a 
number of States to incur significant financial costs by acting to stem 
further wetlands destruction, and that limited funding has prevented 
some States from stepping into the post-NMA loophole. We note that 
today's rule does not regulate on the basis of ditching and drainage 
activities, but instead on the presence of a discharge of dredged 
material into waters of the U.S., as called for under the CWA. Today's 
rule does not expand the scope of CWA section 404 program jurisdiction, 
nor establish a new program or new required processes affecting the 
regulated community. For these reasons, we do not agree that today's 
rule requires an economic analysis such as that called for by the 
commenter.
    We note that many Federal environmental programs, including CWA 
section 404, were designed by Congress to be administered at the State 
or Tribal level whenever possible. The clear intent of this design is 
to use the strengths of the Federal and State and Tribal governments in 
a partnership to protect public health and the Nation's resources. EPA 
has issued regulations governing State and Tribal assumption of the 
section 404 program (40 CFR part 233). The relationship between EPA and 
the States and Tribes under assumption of the section 404 Program is 
intended to be a partnership. With assumption, States and Tribes assume 
primary responsibility for day-to-day program operations. EPA is to 
provide consistent environmental leadership at the national level, 
develop general program frameworks, establish standards as required by 
the CWA, provide technical support to States and Tribes in maintaining 
high quality programs, and ensure national compliance with 
environmental quality standards. Currently two States (New Jersey and 
Michigan) have assumed the section 404 program.
    One Tribal commenter felt that the proposed rule impinges on Tribal 
sovereignty, in that it does not allow Tribal decisions to undertake 
ditching activities for flood control without Federal review. This 
commenter also contended that the agencies did not comply with 
Executive Order 13084 which would have required that the agencies 
consult with the Tribes on the proposed rule under certain 
circumstances. The commenter stated that the agencies' conclusion that 
the proposed rule will not significantly effect Indian communities nor 
impose significant compliance costs on Indian Tribal governments is 
erroneous. As mentioned above, today's rule does not change program 
jurisdiction. In addition, it does not create any new formal process. 
In fact, unlike the proposal, the final rule does not employ a 
rebuttable presumption, and also has been clarified to expressly 
provide that it does not shift any burden in any administrative or 
judicial proceeding under the CWA. We thus believe the rule does not 
create an impingement to Tribal sovereignty or significantly affect 
Tribal communities.

IV. Administrative Requirements

A. Paperwork Reduction Act

    This action does not impose any new information collection burden 
or alter or establish new record keeping or reporting requirements. 
Thus, this action is not subject to the Paperwork Reduction Act.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or

[[Page 4573]]

State, local, or Tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' in 
light of the provisions of paragraph (4) above. As such, this action 
was submitted to OMB for review. Changes made in response to OMB 
suggestions or recommendations are documented in the public record.

C. Executive Order 13132 (Federalism).

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires us to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have federalism implications. As explained in 
sections II and III of today's preamble, the rule does not alter or 
enlarge section 404 program jurisdiction and therefore does not affect 
a discharger's (including State dischargers) obligation to obtain a 
section 404 permit for any discharge of dredged material into waters of 
the U.S. Rather, the rule identifies what types of activities are 
likely to give rise to an obligation to obtain such a permit under the 
definition of ``discharge of dredged material'' contained in our 
existing regulations. It will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, Executive Order 13132 does not apply to this rule.

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

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice-and-comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, a small entity is defined as: (1) A small business based on 
SBA size standards; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district, or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, we certify that this action will not have a significant 
economic impact on a substantial number of small entities. As explained 
in sections II and III of today's preamble, the rule does not alter or 
enlarge section 404 program jurisdiction and therefore does not change 
any discharger's obligation to obtain a section 404 permit for any 
discharge of dredged material into waters of the U.S. Rather, the rule 
identifies what types of activities are likely to give rise to an 
obligation to obtain such a permit under the existing regulatory 
program. Moreover, we also do not anticipate that provision of project-
specific information that a regulable discharge does not occur would 
result in significant costs.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    We have determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. As explained in sections II and III of today's 
preamble, the rule does not alter or enlarge section 404 program 
jurisdiction and therefore does not affect a discharger's obligation to 
obtain a section 404 permit for any discharge of dredged material into 
waters of the U.S. Rather, the rule identifies what types of activities 
are likely to give rise to an obligation to obtain such a permit under 
the definition of ``discharge of dredged material'' contained in our 
existing regulations. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. For the same reasons, 
we have determined that this rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. Thus, 
today's rule is not subject to the requirements of section 203 of UMRA.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (the NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note), directs us to use voluntary consensus standards in our 
regulatory activities unless to do so would be

[[Page 4574]]

inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs us to provide Congress, through 
OMB, explanations when we decide not to use available and applicable 
voluntary consensus standards.
    This rule does not involve technical standards. Therefore, we did 
not considering the use of any voluntary consensus standards.

G. Executive Order 13045

    Executive Order 13045, entitled Protection of Children From 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Was initiated after April 21, 
1997, or for which a notice of proposed rulemaking was published after 
April 21, 1998; (2) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (3) concerns an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children. If the regulatory action meets all 
three criteria, we must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives that we considered.
    This final rule is not subject to Executive Order 13045 because it 
is not an economically significant regulatory action as defined by 
Executive Order 12866. As explained in sections II and III of today's 
preamble, the rule does not alter or enlarge section 404 program 
jurisdiction and therefore does not affect a discharger's obligation to 
obtain a section 404 permit for any discharge of dredged material into 
waters of the U.S. Rather, the rule identifies what types of activities 
are likely to give rise to an obligation to obtain such a permit under 
the definition of ``discharge of dredged material'' contained in our 
existing regulations. Furthermore, it does not concern an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children.

H. Executive Order 13084

    Under Executive Order 13084, we may not issue a regulation that is 
not required by statute, if it significantly or uniquely affects the 
communities of Indian Tribal governments and imposes substantial direct 
compliance costs on those communities, unless the Federal government 
provides the funds necessary to pay the direct compliance cost incurred 
by the Tribal governments, or we consult with those governments. If we 
comply by consulting, Executive Order 13084 requires us to provide the 
Office of Management and Budget, in a separately identified section of 
the preamble to the rule, a description of the extent of our prior 
consultation with representatives of affected Tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires us to develop an effective process permitting elected 
officials and other representatives of Indian Tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian Tribal governments, nor does it impose 
significant compliance costs on them. As explained in sections II and 
III of today's preamble, the rule does not alter or enlarge section 404 
program jurisdiction and therefore does not affect a discharger's 
obligation to obtain a section 404 permit for any discharge of dredged 
material into waters of the U.S. Rather, the rule identifies what types 
of activities are likely to give rise to an obligation to obtain such a 
permit under the definition of ``discharge of dredged material'' 
contained in our existing regulations. Accordingly, the requirements of 
section 3(b) of Executive Order 13084 do not apply to this rule.

I. Environmental Documentation

    As required by the National Environmental Policy Act (NEPA), the 
Corps prepares appropriate environmental documentation for its 
activities affecting the quality of the human environment. The Corps 
has made a determination that today's rule does not constitute a major 
Federal action significantly affecting the quality of the human 
environment, and thus does not require the preparation of an 
Environmental Impact Statement (EIS). One commenter expressed the view 
that an Environmental Impact Statement (EIS) was necessary for the 
rule. However, as we noted in the proposed rule's preamble, the Corps 
prepares appropriate NEPA documents, when required, covering specific 
permit situations. The implementation of today's rule would not 
authorize anyone (e.g., any landowner or permit applicant) to perform 
any work involving regulated activities in waters of the U.S. without 
first seeking and obtaining an appropriate permit authorization from 
the Corps. As explained in sections II and III of today's preamble, the 
rule does not alter or enlarge section 404 program jurisdiction and 
therefore does not affect a discharger's obligation to obtain a section 
404 permit for any discharge of dredged material into waters of the 
U.S. Rather, the rule identifies what types of activities are likely to 
give rise to an obligation to obtain such a permit under the definition 
of ``discharge of dredged material'' contained in our existing 
regulations. Accordingly, the Corps continues to believe an EIS is not 
warranted and has prepared an environmental assessment (EA) for the 
rule.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective February 16, 2001.

List of Subjects

33 CFR Part 323

    Water pollution control, Waterways.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water 
pollution control.

Corps of Engineers

33 CFR Chapter II

    Accordingly, as set forth in the preamble 33 CFR part 323 is 
amended as set forth below:

PART 323--[AMENDED]

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

    Authority: 33 U.S.C. 1344.


    2. Amend section 323.2 as follows:
    a. In paragraph (d)(1) introductory text, remove the words 
``paragraph

[[Page 4575]]

(d)(2)'' and add, in their place, the words ``paragraph (d)(3)''.
    b. Redesignate paragraphs (d)(2) through (d)(5) as paragraphs 
(d)(3) through (d)(6), respectively.
    c. Add new paragraph (d)(2).
    d. In newly redesignated paragraph (d)(4), in the first sentence of 
paragraph (d)(4)(i) remove each time they appear the words ``paragraphs 
(d)(4) and (d)(5)'' and add, in their place, the words ``paragraphs 
(d)(5) and (d)(6)'', remove paragraph (d)(4)(iii), and redesignate 
paragraph (d)(4)(iv) as new paragraph (d)(4)(iii).
    The addition reads as follows:


Sec. 323.2  Definitions.

* * * * *
    (d) * * *
    (2)(i) The Corps and EPA regard the use of mechanized earth-moving 
equipment to conduct landclearing, ditching, channelization, in-stream 
mining or other earth-moving activity in waters of the United States as 
resulting in a discharge of dredged material unless project-specific 
evidence shows that the activity results in only incidental fallback. 
This paragraph (i) does not and is not intended to shift any burden in 
any administrative or judicial proceeding under the CWA.
    (ii) Incidental fallback is the redeposit of small volumes of 
dredged material that is incidental to excavation activity in waters of 
the United States when such material falls back to substantially the 
same place as the initial removal. Examples of incidental fallback 
include soil that is disturbed when dirt is shoveled and the back-spill 
that comes off a bucket when such small volume of soil or dirt falls 
into substantially the same place from which it was initially removed.
* * * * *

    Dated: January 8, 2001.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.

Environmental Protection Agency

40 CFR Chapter I

    Accordingly, as set forth in the preamble 40 CFR part 232 is 
amended as set forth below:

PART 232--[AMENDED]

    1. The authority citation for part 232 continues to read as 
follows:

    Authority: 33 U.S.C. 1344.


    2. Amend section 232.2 as follows:
    a. In paragraph (1) introductory text of the definition of 
``Discharge of dredged material'', remove the words ``paragraph (2)'' 
and add, in their place, the words ``paragraph (3)''.
    b. In the definition of ``Discharge of dredged material'', 
redesignate paragraphs (2) through (5) as paragraphs (3) through (6), 
respectively.
    c. In the definition of ``Discharge of dredged material'', add new 
paragraph (2).
    d. In the first sentence of newly redesignated paragraph (4)(i) 
remove each time they appear the words ``paragraphs (4) and (5)'' and 
add, in their place, the words ``paragraphs (5) and (6)'', remove 
paragraph (4)(iii), and redesignate paragraph (4)(iv) as new paragraph 
(4)(iii).
    The addition reads as follows:


Sec. 232.2  Definitions.

* * * * *
    Discharge of dredged material * * *
    (2)(i) The Corps and EPA regard the use of mechanized earth-moving 
equipment to conduct landclearing, ditching, channelization, in-stream 
mining or other earth-moving activity in waters of the United States as 
resulting in a discharge of dredged material unless project-specific 
evidence shows that the activity results in only incidental fallback. 
This paragraph (i) does not and is not intended to shift any burden in 
any administrative or judicial proceeding under the CWA.
    (ii) Incidental fallback is the redeposit of small volumes of 
dredged material that is incidental to excavation activity in waters of 
the United States when such material falls back to substantially the 
same place as the initial removal. Examples of incidental fallback 
include soil that is disturbed when dirt is shoveled and the back-spill 
that comes off a bucket when such small volume of soil or dirt falls 
into substantially the same place from which it was initially removed.
* * * * *

    Dated: January 9, 2001.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[FR Doc. 01-1179 Filed 1-16-01; 8:45 am]
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