PERMFILE47064

• Permit No: M2001001
• IBM Index Class Name: Permit File
• Doc Date: 1/17/2001
• Doc Name: FEDERAL REGISTER
• Section_Exhibit Name: EXHIBIT K 3
• Media Type: D
• Archive: No

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4562 Federal Register/ Vcl 66, No. 11 /'vVednesday', January 17, 2001 /Rules and Regulztiors
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 acase-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
azeas 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 (I 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 [he 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 t 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 aze
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
[he 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 aze
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 downsveam
impacts are minimal.
We acknowledge that the presence or
absence of water in a jurisdictional
stream or other jurisdictional azea is a
project-specific Eact that would need to
he considered in deciding whether an
activity results in only incidental
fallback or a regulable dischazge. 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
anew 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. Dischazges 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 particulaz
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
^ote that in the NAHFJ 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 dischazge
depends upon project-specific
considerations, which today's final rule
provides for. See also sectioc I![ A 1 of
today's preamble Eor 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,