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

, Federal Register (Vol. 66, No. ? 1 ('vVednesday,- January 17, 2001 /Rules and Regu]ations 455
used to establish what is more than
incidental fallback. As previously noted
in section iII A 1 d of today's preamble
and also discussed below, we do not
believe that use of an effects-based test
for jurisdiction is appropriate in light of
the AMC and NMA decisions.
Other commenters strongly opposed
the idea that the transport of dredged
material downstream or the release of
pollutants as a result of excavation
activities should be treated as a
discharge. Some of these commenters
asserted that consideration of impacts
on water quality resulted in the use of
an "effects-based test" to establish
jurisdiction, which they indicated was
not allowable under the NMA decision.
Others expressed the view that such an
interpretation would result in regulation
of incidental fallback and thus not be
allowable.
These comments refer to the
discussion in the proposed rule's
preamble regarding the information that
we would use to evaluate whether a
regulable dischazge has occurred.
Among other things, that preamble
stated:
In evaluating (whether regulable discharges
have occunedl. the permitting authority will
consider the nature of the equipment and its
method of operation and whether
redeposited material is suspended in the
water column so as to release contaminants
or increase turbidity, as well as whether
downstream transportation and reloca0on of
redeposited dredged material results.
65 Fed. Reg. at 50113.
The agencies continue to believe [hat
when determining whether a dischazge
has occurred, it is relevant and
appropriate to consider whether an
activity results in the release and
distribution of sequestered pollutants
into the water column or in suspended
material being carried away from the
place of removal before settling out. In
such cases, a pollutant is being added to
a new location. This is not the use of an
"effects-based test" to establish the
existence of a discharge, but rather
recognizes that when pollutants are
released or relocated as a result of the
use of earth-moving equipment, this can
result in the "addition" of a "pollutant"
from a "point source" to "waters of the
U.S.," and thus constitute a regulable
discharge. In Dea[on, the Fourth Circuit
recognized that one of the reasons
sidecasting should be treated as a
regulable discharge is that: "When a
wetland is dredged, however, and the
dredged spoil is redeposited in the
water or wetland, pollutants that had
been trapped may be suddenly
released." Denton, 209 F.3d at 336. The
N,I~fA court indicated that resuspension
should not be used to regulate
excavation and dredging activities that
result only in incidental fallback. 145
F.3d at 1407. We would consider the
nature and amount of any resuspension
and transport in determining whether a
regulable dischazge occurred.
We also do not agree [hat allowing for
consideration of the release of
pollutants contained in the dredged
material into the water column and the
transport of suspended material
downstream would necessarily result in
the regulation of incidental fallback.
These are relevant factors in
determining if material has been moved
to a new location, and consequently
resulted in the addition of a pollutant to
a new area. However, in evaluating
these considerations, we would take
into account the volume and location of
redeposited material so as not to
regulate incidental fallback.
A number of other commenters
requested that the proposed rule be
strengthened so as [o require a permit
for excavation and channelization
activities which release even small
amounts of pollutants (such as heavy
metals or PCBs) into the water column
or which would result in their transport
down stream. Under today's rule, such
pollutants (which constitute dredged
material by virtue of having been
dredged or excavated from waters of the
U.S.) (see e.g., 40 CFR 232.2 (defining
dredged material as "material that is
dredged or excavated from waters of the
U.S.)) would be regulated if
resuspended and transported to a
location beyond tha place of initial
removal in such volume so as to
constitute other than incidental fallback.
We believe that is the appropriate test
for evaluating any redeposit of dredged
material, for reasons stated previously,
As explained elsewhere in today's
preamble, we expect that the use of
mechanized earth-moving equipment in
waters of the U.S. will generally result
in a regulable discharge. However, we
do not believe that it is appropriate to
per se treat the redeposits described by
these comments as a discharge of
dredged material, as consideration
needs to be given to the factors o(each
particulaz case in making a regulatory
decision.
E. Need for Brigh[line Test
Many commenters expressed concern
that the proposal did not provide a clear
definition of what constitutes a
regulable discharge or incidental
fallback. Many of these commenters
were concerned that without clear
standards that the regulated community
or the regulators can use in order to
determine when an activity is subject to
federal jurisdiction, the proposal would
have resulted in a system that was
arbitrary and uncertain and was too
vague in light of the CWA's civil and
criminal penalty scheme. Some oEthese
commenters expressed the view that
without clear standazds the rule would
be void for vagueness, not meet the due
process standard of providing fair
warning of what activities are regulated,
or violate the Constitution's non-
delegation doctrine as construed in
American Trucking Association v.
Browner, 175 F.3d 1027 (D.C. Cir. 1999).
Commenters also expressed concern
that this would result in uncertainty and
the need for subjective case-by-case
determinations. Many of those
concerned with the lack of a definition
requested the proposal be withdrawn
and re-proposed to include such a
provision; some of these also indicated
that guidance on what constitutes a
regulable dischazge versus incidental
fallback needs to take the form of a rule,
and should not be attempted through
informal guidance.
Our May 10, 1999, rulemaking
amended the substantive aspects of the
definition of "dischazge of dredged
material" to provide that we no longer
would regulate "any" redeposit, and
that "incidental fallback" was not
subject to regulation. That continues to
be the case under today's final rule. As
noted in section II B of today's
preamble, the May 10 rulemaking was
considered by the NMA court in its
September 13, 2000, opinion and found
to be incompliance with the AMCand
NMA opinions and associated
injunction. NAHB Motion Decision at
10. Today's rule does not alter the
substantive regulatory definition of
what constitutes a discharge. Rather
than create arbitrary or uncleaz
standazds as some commenters have
claimed, today's rule provides
additional clarification for both industry
and the regulatory agencies as to what
types of activities aze likely to result in
regulable dischazges.
In addition, the preamble to the
proposed rule did provide guidance as
to the agencies' views on what
constitutes a regulable redeposit versus
incidental fallback. For example, that
preamble explained that as the NMA
court and other judicial decisions
recognize, the redeposit of dredged
material "some distance" from the point
of removal (see NMA, 145 F.3d at 1407)
can be a regulable dischazge. Similarly,
the preamble noted the language from
the NMA opinion describing what
constitutes incidental fallback:
involving the return of "...dredged
material virtually to the spot from
which it came" (145 F.3d at 1403), as
well as occurring "when redeposit takes