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. 06, No. :1 / Vlednesday; January 17, 2001 /Rules and Regulations X557
has occurred. Thus, these factors are
relevant to determining whether a
redeposit other than incidental fallback
occurs, and are not used to assert
jurisdiction on the basis of
environmental effects.
Other comments urged that the rule
identify certain activities as always
requiring a permit or consisting of a
regulable discharge. Examples
mentioned in such comments included
sidecasting, backfilling, and stockpiling;
those supporting strengthening of the
proposal also included bulldozing,
grading, and leveling as always
requiring a section 404 permit. As
previously discussed in section iI C of
today's preamble and the preamble to
the proposed rule, case law has found
a number of activities (e.g., sidecasting,
backfilling of trenches) to be regulable
discharges under section 404. We
believe the preamble discussion on
these points to be sufficiently cleaz and
that inclusion of such specific examples
in the regulation itself is unnecessary.
To the extent grading and leveling
involve redistribution of soils in waters
of the U.S. around a site to create a level
area, such activities would appear to
typically involve not only a dischazge of
dredged material (through the pushing
of dredged material from one location to
another) but also possibly fill material
(by filling low areas). See Avoyelles
(movement of soils to depressed aeeas as
discharge of fill material). In any event,
case law on redeposit issues continues
to evolve over time. Accordingly, we do
not believe the listing of specific
examples of discharges in the regulation
itself to be appropriate.
F. Clarity of Proposal and
Implementation Issues
1. Clarity
A number of commenters sought
clarification with regard to section
4040, as they were concerned or
confused by [he references to section
404(f) in the preamble to the proposed
rule. Most of these commenters
interpreted the preamble language to
indicate that the rule would establish
that certain silviculture or farming
activities described in section 404(f) as
being exempt from permit requirements
would now be subject to regulation,
pazticularly because these activities may
involve the types of machinery and
actions referenced in the proposal.
We regret [hat the references to
section 404(fJ in the preamble may have
caused confusion regarding the
relationship of section 4U4(t) to the
rulemaking and emphasize that today's
rule does not change the interpretation
or use of the exemptions in any manner.
Today's rule concerns [he fundamental
issue of what activities result in a
discharge that is regulated under section
404. The section 404(f) exemptions
describe those activities that. although
resulting in a discharge, do not require
a permit if they are conducted
consistent with that provision.
Activities covered by section 404(E),
including silviculture, ranching, and
agriculture, involving the use of
equipment and methods such as those
described in the rulemaking remain
exempt, subject to the provisions of
section 404(f), and are not altered by
today's rule.
2. Comment Period
Two commenters requested an
extension of the public comment period
in order to better gauge the effects of the
rule on their membership. One of these
requested additional time to assess the
potential impacts of the proposal on
their industry and also requested a
public hearing on the proposal. The
other commenter expressed the view
that the proposal was fundamentally
different from previous iterations of the
Tulloch Rule, and sought additional
time in order to obtain more information
on the physical settings and the use of
many types of equipment by its
membership. We believe that a 60-day
comment period was adequate time to
obtain widespread and effective public
comment amd that extending the public
comment period or holding a public
hearing is unnecessary. in general, it
appeazs the public understood the
proposal and was able to provide
comments in a timely fashion. Of the
approximately 9,650 comments that
were received, only two sought an
extension of the comment period, and
only one of [hose requested a hearing.
in addition, those two commenters did
file specific and substantive comments
within the 60-day comment period.
3. Implementation
A number of commenters raised
issues associated with the
implementation of the rule, including
the ability of the agencies to effectively
enforce, monitor, and budget for it, as
well as the appropriate exercise of
discretion on behalf of the agencies.
Several commenters indicated that the
agencies need to dedicate enough staff
and other resources necessary to
effectively enforce the rule. One
commenter specifically recommended
that the agencies request the necessary
funding from Congress to allow effective
implementation. Another commenter
specifically mentioned the need for the
agencies (or States or local governments)
to monitor activities not requiring a
permit, to determine if they were in Fact
not resulting in a discharge. One of
these commenters supported review and
documentation of completed projects
determined a priori to no[ result in a
discharge, to ensure that in fact no
discharge resulted. One commenter who
supported the objective of the proposed
rule nonetheless recommended that we
streamline the permitting process
associated with activities that may
involve incidental fallback. Another
commenter specifically cited concern
that the Corps would not be able to
efficiently process permits and asserted
that the processing of Nationwide
General Permits is not as efficient as the
agencies contend.
We concur with the commenters who
stated that it was important for us to
have adequate resources to effectively
enforce, monitor, and otherwise
implement the proposed rule.
Consistent with agency priorities for
aquatic resource protection and our
overall missions, we do propose budgets
to adequately accomplish our CWA
statutory objectives. Effective
enforcement and monitoring is an
important part of the section 904
regulatory program. We will coordinate
with State and local partners to ensure
that today's rule, as well as wetlands
regulations, in general, have effective
compliance. Over the last two years,
unreported Tulloch activities presented
a challenge to us in obtaining
information on the extent and nature of
wetlands destruction that has occurred
following the /VMA decision. While
many of these challenges remain, we
believe that satisfactory monitoring, in
cooperation with others, can be
accomplished to adequately track the
results of today's rule. We agree that
pre-project information alone should
not necessazily be the basis for
concluding that an activity results only
in incidental fallback and that other
measures, such as field investigation or
site visits, may be needed to assess
whether an activity has actually resulted
in any regulable discharges.
The agencies' goal is to work
cooperatively with the public to ensure
that their activities in the Nation's
waters are fully consistent with the
requirements of the Act and its
implementing regulations, including
today's rule. The Corps of Engineers is
the principal contact for the public both
in the context of responding to
questions that arise prior to conducting
any proposed activity in waters of the
U.S., as well as monitoring permitted
and unpermitted activities as they
proceed in waters to verify compliance
with permit conditions or, in the case of
unpermitted activities, to ensure that no