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Federal Register/ Vol. 6fi, Nc. 1: /Wednesday, January 17, 2CC1 /Rules and F.egulatiors 453 consistent with the court's decision in NMrt. 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, i[ 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 A,LIC 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 ntay 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 onyaddition of a pollutant into waters of the U.S., regazdless 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 no[ 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 "{aalback" (i.e., in substantially [he 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 regazd 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 Denton and implicitly rejected by many others. Two commenters quoted Denton to stress that: "• •[t)he idea that there could be an addition of a pollutant without an addition of material seems to us entirely unremazkable, 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 Denton, 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 landcleazing 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(C)(t) 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 409(fj); 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 azgument that a spill is not a "discharge."). We agree that Denton and the other cases cited offer additional support. Denton 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 Denton and NMA. NAHB Motion Decision at t6. We believe today's rule is consistent with Denton, 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 AMG 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 tha discharge of dredged material. Some commenters suggested that today's rule also be guided by CWA section 404(fj(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