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Federal Register /Vol. 66, No. 11 /Wednesday, January 17, 2001(Rules and Regulations 4552 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- specificconsideration 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 ofearth-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 shik 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 a[ 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 beaz 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 ttme-consuming, confusing, technically challenging and cost prohibitive. Other commencers 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 deinonsuation 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. I[ 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 shik the burden of proof as to CWA jurisdiction from the government to the regulated community and the final rule clazifies 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 cleaz that it does not shift the burden of showing that a regulable dischazge 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 atime- 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 aze 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 dischazges 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 [he 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 45025j15026), and interested readers are referred to that discussion for further details.