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4560 FQderal Register / Vo:. E6, No. 11 / ~"+'ednesday; January 17, 2001 /Rules and Regulations that section 404(f)(2) reflects an explicit Congressional intent to regulate minor and unintentional soil movements [hat 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 regazding how the term "discharge" should be interpreted, despite the fact that the section does no[ define [he 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. 16), the commenter azgued 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" dischazges 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(fj(1) similarly supported the idea that a permit should generally be required for activities [hat drained wetlands. For example, the commenter noted section 404(fJ(1)(a) provides an exemption for "minor drainage" associated with Farming and silvicultural activity. If dischazges 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(4)(11 provides guidance for interpreting the term "discharge." Section 404(fj(t) 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 dischazge under the Act. We agree that section 404(f), and in particular the use of the term "incidental" in section 404(£)(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 dischazges of dredged material. Numerous commenters affirmed the validity of the examples of activities in the preamble of the proposed rule that aze presumed to result in a dischazge 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 (or 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 Callback results. Other commenters maintained that the presumption was not reasonable, arguing that it was at odds with controlling legal precedent. These commenters argued that [o 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 dischazges that result. Some asserted [hat 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. Ona 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 it 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