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4568 Federal Register/Vol. 66, No. ::/Wednesday; Jazruary 17, 2001lRt:les and Regulations regulable discharge takes place. Consistent with its statutory responsibilities and relevant Memoranda of Agreement between EPA and the Corps, EPA also may serve as the lead agency in determining whether a regulable discharge has occwred. It is a more effective use of agency resources and more efficient far project proponents to coordinate with the Corps before an activity in waters of the U.S. occurs to determine whether or not the project Viggers the need for a CWA permit. We strongly recommend that anyone proposing projects which, for example. involve earth-moving activities using mechanized equipment such as bulldozers or backhoes contact the Corps well in advance of the project to determine whether or not a regulable discharge will occur. As appropriate, the Corps will also be involved in working with the public on a project- specificbasis to monitor ongoing or completed projects which proceed without a section 404 permit through site visits, remote sensing, field investigations and so forth to verify that no regulable discharges have occurred. With respect to streamlining the permit process for discharges that may involve incidental fallback, we note that neither the proposal nor today's rule establishes new procedural or informational requirements. In addition, we have provided additional discussion in today's preamble (see section R C) as well as a descriptive definition of incidental fallback in order to clarify the factors and information relevant to making the determination of incidental fallback versus regulable discharge. Given that case-specific evidence regarding whether an activity results only in incidental fallback will be considered, general authorizations based on a common set of circumstances would be inappropriate. We have undertaken a number of successful efforts to ensure that activities regulated under the section 404 program are evaluated in an efficient manner, while ensuring environmental protection. In particular, with regard to the comment on the development and use oENationwide General permits. such permits have provided an efficient process for allowing discharges with truly minimal impacts to move forward with little regulatory review, consistent with conditions that provide Eor aquatic resource protection. Despite successive annual increases in the use of general permits over the last ten years, processing times have remained low. Some 63.780 general permits required a priori action on the part of the Corps in Fiscal Year 2000 (as compared with approximately 4,313 individual permits), and these were evaluated in an average time of only 19 days. A number of commenters addressed the issue of discretion by the agencies in implementing today's rule. The majority of these commenters advocated that discretion on the part of Corps Districts should be minimized. Several commenters stressed the need for consistent interpretation and application of the rule, citing the fact that several State and local jurisdictions have multiple Corps Districts. Other commenters noted that national guidance or consultation with the Headquarters offices of the agencies should be required, particularly if any local operating procedures for [he rule are developed. One commenter recommended that Corps field staff document all communications with potential dischargers and submit such information to Corps and EPA Headquarters for periodic review. One commenter indicated that if any determination is a "close call" with regard to whether or not a discharge constitutes incidental fallback, it should be considered regulated in order to err on the side of protecting wetlands. One commenter asked for clarification that previous understandings with Corps Districts regarding certain "Tulloch" activities would remain in effect, specifically mentioning the preamble text in the proposed rule regarding the cutting of vegetation, as well as the use of vehicles and other "landclearing and excavation practices that have been deemed to fall within the exclusions . . under the Tu/loch Rule." Another commenter provided a specific example of guidance provided by a District that the commenter asserted ran counter to the agencies interpretation of the NMA decision: that entities "may engage in insVeam mining and dredging if the intent of the work is to create a discharge of dredged material that results only in incidental fallback." We concw with those commenters that advocate consistent implementation of today's rule across Corps Districts, but also recognize that the case-specific nature of incidental fallback determinations necessitates some element of discretion. We have developed guidance on program implementation in light of the AMCand NMA decisions (issued on April 11, 1997, and updated on July 10. 1998), as well as provided further guidance in the May 10, 1999, rulemaking and today's rulemaking action. As additional issues are raised in the application of today's rule that lend themselves to additional guidance, we will provide such guidance. Moreover, to the extent that regional circumstances allow regional guidance to be provided on circumstances common to a particular part of the country, we will provide that as well. In the preparation of any regional guidance and in the consideration of "close calls," our headquarters will provide oversight and review to assist ow field staff in reaching determinations that are consistent with governing law. With respect to previous understandings with Corps Districts regarding the regulation of certain "Tulloch" activities, today's rule describes how potential discharges will be addressed. While the lack of specific details in many oEthe specific comments prevents us from making a determination here, we can clarify that the cutting of vegetation above the roots is not regulated as a dischazge of dredged material under section 404. 33 CFR 323.2(dJ(2)(ii) and 90 CFR 232.2. Likewise, driving vehicles such as cars, off-road vehicles, or fazm tractors through a wetland in a manner in which such vehicle is designed to be used generally is not subject to regulation under CWA section 904. See our August 4, 1995, guidance entitled "Applicability of Clean Water Act Section 404 to Vehicle Use in Waters of the U.S." Landclearing and excavation practices are discussed above in section TR C of today's preamble. With respect to the comment on guidance said to have been provided by a District that entities "may engage in instream mining and dredging if the intent of the work is to create a discharge of dredged material that results only in incidental fallback; 'the proper consideration is not the intent of the discharger, but whether, in fact, the activity results in only incidental fallback. G. Need to Amend CWA One commenter, while disagreeing with the NMA decision and its reasoning, indicated that besides ru]emaking, the agencies also should seek action by Congress to amend the CWA so as to clarify agency authority to fulfill their duty under the CWA to protect the Nation's waters. Other commenters who were opposed to the proposed rulemaking expressed the view that it was necessary to obtain an amendment to the CWA before, or instead of, proceeding with rulemaking. Many of these commenters believed that the proposed rule exceeded the agencies' authority under the CWA (see discussion in section III A of today's preamble) and thus could not be undertaken without an amendment to [he Act. In fact, one such commenter suggested that language in EPA