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

4568 Federal Register/Vol. 66, No. 1? !Wednesday, January 17, 2001 i Rules and Regulations
place in substantially the same spot as
the initial removal." 145 F.3d at 1401).
Moreover, as explained in section II C
of today's preamble, in response to
comments on the need for a definition
of incidental fallback, we have modified
the final rule to include a descriptive
definition consistent with relevant case
law. Since the definition of incidental
fallback reflects discussion in the ArVIC
and NMA opinions of incidental
fallback, and those cases were discussed
in the preamble [o the proposed rule, we
do not believe that this revision to our
proposal necessitates reproposal.
A number of commenters requested
that the agencies adopt a "brightline
test" to distinguish between incidental
fallback on the one hand and regulable
discharges on the other. Some of the
commenters opposed to the proposed
rule expressed the view that the
proposal was contrary to the NMA
decision and the preamble to the
agencies' earlier May 10, 1999,
rulemaking, in that it did not provide a
sufficiently reasoned or clear attempt to
draw a line between incidental fallback
and regulable redeposits. We believe
that the descriptive definition of
incidental fallback in today's rule will
provide greater certainty, but do not
agree that the court in NMA mandated
that we take any particular approach to
defining our regulatory jurisdiction.
NMA only stated that "a reasoned
attempt by the agencies to draw such a
line would merit considerable
deference." 145 F.2d at 1405 (footnote
omitted). As discussed previously, a
descriptive definition of incidental
fallback has been added to today's final
rule. We do not believe that a more
detailed definition is appropriate at this
time.
Some comments suggested drawing a
bright line on the basis of measurable
criteria such as cubic yards of dredged
material, total acres of land disturbed,
gallons of water removed, tons of
sediment disposed, or similar measures.
Although consideration of factors such
as the volume and amount of the
material and nature and distance of
relocation are relevant in determining
whether incidental fallback or a
regulable dischazge occurs, these factors
are inter-twined with one another, and
do not lend themselves to a segregable
hard and fast quantification of each
specific factor (or combination of
factors) so as to give rise to a hard and
fast test. Moreover, we are not aware of.
nor have commenters suggested, a
sound technical or legal basis on which
to establish brightline quantifiable
limits on such factors. For example, we
do not believe it is technically sound or
feasible to simply establish universally
applicable cut-off points for amount or
distance.
Another commenter requested a
brightline test be established by having
the rule state a presumption against
discharge for incidental soil movement
associated with mechanized
landclearing and excavation activities.
More specifically, [his commenter
recommended that the rule provide that
no discharge results from incidental soil
movement associated with mechanized
landclearing, ditching, channelization,
draining, in-stream mining, or other
mechanized excavation activity such as
when (t) excavated soils and sediments
fall from a bucket, blade or other
implement back to the same general area
from which it was removed; (2) surface
soils, sediments, debris or vegetation are
scraped, displaced or penetrated
incidental to the use of machinery; (3)
excavation machinery is dragged
through soils or sediments; or (4)
vegetative root systems are exposed, or
trees and stumps are knocked down or
uplifted, incidental to the use of
machinery. The commenter's
recommendation went onto provide
that otherwise the Agency may
demonstrate on a case by case basis that
mechanized excavation activity in
waters of the U.S. results in the
discharge of dredged material.
We do not agree with this suggestion
for a number of reasons. First, we
believe a test of the "same general area
from which it was removed" for
determining whether incidental fallback
has occurred could create the
impression that material redeposited in
virtually any pazt of the work azea
would not be a dischazge, which we
believe would be too broad of a test. As
both NMA and Denton recognize, for
example, placement of dredged material
in as close a proximity to the excavation
point as the side of a ditch can result in
a regulable redeposit. We thus believe a
formulation based upon use of a "same
general area test" to be too expansive to
properly convey that short-distance
relocations can result in regulable
discharges. As discussed in section [1 C
of today's preamble, we do believe a fair
and objective reading of the AMC and
NMA cases and [he NAHH Motion
Decision, as well as other relevant
redeposit cases discussed in that section
of the preamble, is that incidental
fallback occurs when redeposit takes
place in "substantially" the same place
as the initial removal, and have so
provided in today's final rule.
Moreover, the examples provided by
the commenter (e.g., dragging of
equipment, scraping or displacement of
soil or vegetation, uplifring of tree roots)
often can result in the relocation and
redeposit in waters of the U.S. of
substantial volumes of material over
considerable distances so as to
constitute more than incidental fallback
under the AMC and NMA opinions. The
approach suggested by this commenter
reflects perhaps a different conception
of what constitutes incidental fallback
than is contained in today's rule. If
incidental fallback were to include any
material incidentally redeposited in the
course of mechanized activity, the
establishment of a presumption of
exclusion of the activities listed by the
commenter might follow as reasonable.
As discussed immediately above in this
section, however, we believe that this
formulation is not warranted and would
be too broad. We believe that we have
properly described incidental fallback
in today's rule, and that it would not be
reasonable to assume the activities
listed by the commenter only cause
incidental fallback. In fact, as today's
rule clazifies, we regard such activities
as typically resulting in more than
incidental fallback, absent project-
specific information to the contrary.
However, there is substantial flexibility
under today's rule to consider the types
of activities listed by the commenter
and determine on a case-by-case basis
whether a specific project is subject to
regulation.
Other commenters recommended that
while the term "discharge" should not
encompass the fallback of material
precisely to the same spot during
excavation activities, when the
movement of the dredged material raises
new environmental concerns (such as
release of pollutants into the water
column or more ready erosion of the
material and movement downstream),
this relocation should be treated as a
discharge. These and other commenters
also requested that the rule make clear
[hat a permit is required for excavation
and channelization activities which
release even small amounts of
pollutants (such as heavy metals or
PCHs) into the water column or which
would result in their Vansport
downstream. For reasons stated
previously, we do not agree that
whether an activity results in new
environmental concerns should be used
as the basis for establishing jurisdiction.
As discussed in both the proposed rule's
and today's preamble, the nature and
amount of transport and resettling of
excavated material downstream From
the azea of removal, or release of
pollutants previously bound up in
sediment beyond the place of initial
removal, are relevant factors to consider
in determining if movement and
relocation other than incidental Fallback