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455'8, Federal Register/Vol. 65, No. 1?/1"/ednesday, January• 17, 20C1/Rules and Regulations activities was encompassed within section 404 under certain circumstances. There is no support in the Act or legislative history for concluding that so-called "minor" discharges associated with excavation were intended by Congress to be categorically excluded from the Act. In fact, the very use of the word "incidental" in section 404(fl(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(fl(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(fl exemptions as follows: 404(fl provides that Federal permits will ^ot be required far [hose narrowly defined activities that cause little or no adverse effects either individually or cumulatively. While i[ is understood that same oC 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 cvcula[io^ or reduce the reach or size of the water body. 3 A Legislative History of the Clean Water Acl 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 Ili 1 b, we recognize that there will be situations when the project-specific information indicates [hat 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 aze 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 Denton, Mango, M.G.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 dischazge 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 Denton, 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. Denton 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." Tn 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' [o'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. 2000J(slip opinion) at a-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 W ith Applicable Law Several other commenters asserted their view that the proposal was