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i • . Federal Register/ Vol. 66, No. ? 1 /Wednesday, January ;7, 2001 /Rules and Regulations 4563 by definition, incidental to the operation of the bucket and the excavation and that no dredged material is introduced into the jurisdictional azea, meaning a regulable discharge has not occurred. In summary, they believed that the proposed rule was too inclusive and should explicitly exclude certain types of excavation from the presumption of discharge. The preamble to today's rule clearly recognizes that there are situations where, due [o the nature of the equipment used and its method of operation, a redeposit may be limited to "incidental fallback." As emphasized repeatedly, today's rule would continue to exclude incidental fallback from regulation under section 404. We note, however, that backhoes by their nature (i.e., the size of the excavation machinery) are typically used to move more than small volumes of material in the course of excavation, and are thus likely to result in redeposits that exceed the definition of incidental fallback (i.e., "small volumes of dredged material ' ' " [that] " 'falls back to suhstonticlly the same place as the initial removal.") However, the rule allows for project-specific evaluation of whether only incidental fallback occurs, and the definition of incidental fallback includes as an example "the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed." One commenter suggested that discing is not excavation, since there is nc removal, but merely minor displacement. They believed that the proposed rulemaking suggests that disking results in more than incidental fallback, and they question how there can be any fallback of any nature where there is no excavation. Another commenter challenged the reasonableness of the presumption, because not all mechanized activities first "remove" material from waters of the U.S. and therefore such activities could not result in material being redeposited. We acknowledge that there are mechanized activities that do not first excavate or remove material and therefore redepositional discharges do not occur (e.g., the driving of piles in many circumstances). However, we also note that by pushing or redistributing soil, activities other than excavation can result in the addition of dredged material to a new location, and hence produce a regulable discharge. Several commenters discussed the routine operation and maintenance of numerous existing Hood control channels, levees and detention basins. They stated that existing facilities are vital to tax-paying citizens since they are critically needed to protect their health and safety. They also stated the intent of a flood control excavation project is to maintain hydraulic capacity and entirely remove accumulated sediment and debris from the facility, restoring it to its original lines and grades. They contended that the implementation of existing maintenance-related Best Management Practices addresses negative impacts of this work. Additionally they asserted that, under current regulation, no permit is required for excavation, the work can proceed in a timely manner, and costly submittals are not needed. They also contended that their "finished products" enhance, protect and maintain water quality. The commenters were concerned that all of their excavation projects under the proposed rule would be presumed to include an "addition" of pollutants. One commenter, on behalf of a water authority, stated that they frequently engage in a number of activities subject to section 404 of the CWA, and which typically fall under the Nationwide permit program. Such activities include the construction of erosion control structures, channelization for temporary water diversions during construction of facilities, and building pipelines that infrequently occur in waters of the U. S. They stated that their efforts to enhance and restore wetlands often require mechanized landclearing to remove non-native, invasive vegetation. They asserted that, if implemented, the proposed revision would inappropriately deem these activities regulable discharges, when in fact they do not involve discharges beyond incidental fallback. Another commenter stated that they have restored several lakes, ponds, and sediment in streams with the one-step removal process under the Tulloch Rule. They utilize specialized low ground pressure equipment, to provide one step removal of accumulated sediments in a low impact manner to restore lakes, ponds, and streams. They also assert that they are very conscientious to prevent any fall back or otherwise discharges of materials into any waters of the U.S. and that they have very successfully restored many acres of U.S. waters, restoring aquatic habitat and navigability, and property values throughout their particular region of the U.S. They believed a distinction needs to be made between restoration activities to remove sediment from smothered aquatic habitats and draining jurisdictional areas to convert waters of the U. S. [o upland uses. In response, we note that some of the routine discharges from operation and maintenance oEexisting flood control channels, levees and detention basins are exempt from regulation under CWA section 404(f), and the exemption is not affected by this rule. Also, Corps Nationwide and Regional General Permits authorize some of the routine operation and maintenance work. We also note today's rule does not establish new requirements or procedures, and thus does not necessitate costly new submittals. Additionally, today's rule no longer establishes a rebuttable presumption, and project-specific information will be considered in determining whether an activity results in more than incidental fallback. If, as some of these commenters assert, their activities do not result in more than incidental fallback, then they would not be regulated under the CWA, nor are they currently regulated. We also note that because the determination of jurisdiction rests on the presence of a discharge of dredged material, which is not dependent upon either the effects of the activity or the intent of the person, the fact that an activity may or may not be beneficial, or is undertaken with the intent to remove material, does not Form the basis for determining jurisdiction. One commenter was concerned that the proposed rule's presumption would seriously impede the ability of water users to maintain their diversion structures, irrigation ditches, retaining ponds and reservoirs. In light of the fact that the term "waters of the U.S." determines the extent of the Corps jurisdiction under the CWA, they believed that the proposed rule would subject even the most routine maintenance of ditches, headgates and oH-channel storage facilities to the permitting process and that resulting delays would hamper the efficient operation of water delivery systems, and jeopardize safety as well. Today's final rule does not establish a rebuttable presumption, and as discussed in section IS C and IiI A of today's preamble, would not result in the regulation of incidental fallback. We also note that because the determination of jurisdiction rests on the presence of a discharge of dredged material, which is not dependent upon the effects of the activity, the fact that an activity may or may not be beneficial does not form the basis for determining jurisdiction. D. regulation on Basis of Toxics/ Poll u [an t Releases A number of commenters from the science profession provided extensive