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

455Zt" Federal Register /Val. 66, No. 11 /'Nednesday, January 1', 20011 Rules and Regulations
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 323
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 232
[FRL-1x933-2]
and thus involve a regulable discharge
of dredged material.
As a result of the comments we
received, today's final rule reflects
several modifications from the proposal.
In response to concerns raised by some
commenters that the proposal would
have shifted the burden of proof to the
regulated community as to what
constitutes a regulable discharge, we
have revised the language to make clear
that this is not the case. Additionally,
we received numerous comments
requesting that we provide a definition
of"'incidental fallback" in the
regulatory language. In response, today's
final rule does contain such a definition,
which is consistent with past preamble
discussions of that issue and is drawn
from language contained in the relevant
court decisions describing that term.
Today's final rule will both enhance
protection of the Nation's aquatic
resources, including wetlands, and
provide increased certainty and
predictability for the regulated
community. At the same time, it
continues [o allow for case-by-case
evaluations as to whether a regulable
discharge of dredged material results
from a particular activity, thus retaining
necessary program flexibility to address
the various fact-specific situations that
aze presented.
EFFECTIVE DATE: February I6, 2001.
FOR FURTHER INFORMATION CONTACT: For
information on today's rule, contact
either Mr. Mike Smith, U.S. Army Corps
of Engineers, ATTN CECW-0R, 441 "G"
Street, NW, Washington, DC 20314-
3000, phone: [phone], or Mr.
John Lishman, U.S. Environmental
Protection Agency, Office of Wetlands,
Oceans and Watersheds (4502F), 1200
Pennsylvania Avenue N.W.,
Washington, DC 20460, phone: (202)
260sJ180.
Further Revisions to the Clean Water
Act Regulatory Definition oT
"Discharge of Dredged Material"
AGENCIES: Army Corps of Engineers,
Department of the Army, DOD; and
Environmental Protection Agency.
ACTION: Final rule.
SUMMARY: The U.S. Army Corps of
Engineers (Corps) and the
Environmental Protection Agency (EPA1
are promulgating a final rule to amend
our Clean Water Act (CWA) section 404
regulations defining the term "dischazge
of dredged material." Today's final
action is being taken to follow-up on our
eazlier proposed rulemakfng of August
36, 2000, in which we proposed to
amend the regulations to establish a
rebuttable presumption that mechanized
landclearing, ditching, cbannelization,
in-stream mining, or other mechanized
excavation activity in waters of the U. S.
result in more than incidental fallback,
Category I Examples of potentially
regulated entities
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
Persons or entities that discharge
material dredged or excavated from
waters of the U. S. could be regulated by
today's rule. The CWA generally
prohibits the discharge of pollutants
into waters of the U.S. without a permit
issued by EPA or a State approved by
EPA under section 402 of the Act, or, in
the case of dredged or fill material, by
the Corps or an approved Slate under
section 404 of the Act. Today's rule
addresses the CWA section 404
program's definition of "discharge of
dredged material," which is important
for determining whether a particular
dischazge is subject to regulation under
CWA section 404. Today's rule sets
forth the agencies' expectations as to the
types of activities that aze likely to
result in a dischazge of dredged material
subject to CWA section 404. Examples
of entities potentially regulated include:
State/Tribal govemments or instrumentalities .......................................... StateRribal agencies or Instrumentalities that discharge dredged mate-
rial into waters of the U.S.
Local governments or instrumentalities .................................................... Local govemments or instrumentalities that discharge dredged matedal
into waters of the U.S.
Federal govemment agencies or Ins[rumentalities .................................. Federal govemment agencies or instrumentalities that discharge
dredged material into waters of the U.S.
Industrial, commercial, or agricultural entities .......................................... Industrial, commercial, or agricultural entitles that discharge dretlged
material into waters of the U. S.
Land developers and landowners ............................................................ Land developers and landowners that tlischarge dredged material into
waters of the U.S.
This table is not intended to be
exhaustive, but rather provides a guide
[or readers regarding entities that are
likely to be regulated by this action.
This table lists the types of entities that
we are now aware of that could
potentially be regulated by this action.
Other types of entities not listed in the
table could also be regulated. To
determine whether your organization or
its activities are regulated by this action
you should carefully examine EPA's
applicability criteria in section 230.2 of
Title 40 of the Code of Federal
Regulations, the Corps regulations at
part 323 of Title 33 of [he Code of
Federal Regulations, and the discussion
in section II of today's preamble. If you
have questions regarding the
applicability of this action to a
particulaz entity, consult one of the
persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Background
A. Pldin Language
In compliance with President
Clinton's June 1, 1998, Executive
Memorandum on Plain Language in
government writing, this preamble is
written using plain language. Thus, the
use of "we" in [his action refers to EPA
and the U. S. Army Corps of Engineers
(Corps), and the use of "you" refers to
the reader.
B. Overview of Previous Rulemdking
Activities and Related Litigation
Section 404 of the CWA authorizes
the Corps (or a State with an approved
section 404 permitting program) to issue
permits for the discharge of dredged or
fill material into waters of the U.S. Two
States (New Jersey and Michigan) have
assumed the CWA section 404
permitting program. On August 25, 1993
(58 FR 45008), we issued a regulation
(the "Tulloch Rule") that defined the