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Federal Resister/ Vol. 66, No. it /Wednesday; January 17, 2001 i Rules and Regulations 4569 Adminisvator Carol Browner's Press Release announcing [he August 16, 2000, proposal reflected a recognition that the agencies do not have the authority to undertake the action reflected in this rule because it called on "Congress to strengthen the Clean Water Act to fully protect and restore America's wetlands." Others felt that in light of the uncertainties and importance of the issue it was appropriate or even necessary to wait for Congressional action before proceeding. We do not agree. We believe today's rule is entirely consistent with the current CWA and relevant case law, and helps to clarify for the regulated community and the agencies what activities aze likely to result in regulable discharges. In keeping with the AMC and NMA cases and the NAHB Motion Decision, today's rule does not provide for regulation of"incidental fallback," and a descriptive definition of that term has been provided in today's rule language. The language in the press release calling on Congress to strengthen the Act was a recognition that the statute, as interpreted in AMCand NMA, does not extend m regulating incidental fallback. Since today's rule does not regulate incidental fallback, but rather articulates an approach to determining whether redeposits of dredged material come within our existing statutory authority, today's rule is consistent with both the press release and the CWA as interpreted by the courts. K Other/ssues 1. Loss Data As noted in the proposed rule, available information indicated that more than 20,000 acres of wetlands were subject to ditching and more than 150 miles of sveam channelized since the NMA decision. The activities causing such "Tulloch" losses typically take place without a CWA section 404 permit, and therefore are not systematically reported to either EPA or the Corps of Engineers. As a result, the numbers are believed to likely underestimate actual Tulloch losses. The proposed rule invited the public to submit further relevant information on Tulloch losses. One commenter suggested that this invitation to submit data on Tulloch losses was an attempt to establish a post hoc rationalization for today's rule. We disagree. The CWA section 404 establishes a regulatory program for discharges of dredged material into waters of the U.S. The Act does not establish a threshold of impacts after which an activity will be regulated, nor as explained in sections iII A 4 and Bi D of today's preamble, does today's rule use an effects based test to establish jurisdiction. As a result, we do not need aggregate data showing extensive Tulloch losses or impacts to justify today's rulemaking. Such information is nonetheless helpful in answering inquiries from the public about the impacts of Tulloch activities, as well as in helping focus our limited resowces on important environmental problems. Many commenters emphasized that the uncertainty created by the NMA decision has led to a surge in wetlands drainage, resulting in deposits into wetlands of both unregulated "incidental fallback" and regulable redeposit oEdredged material. Commenters expressed concern that project proponents may decide that a section 404 permit is not necessary and not contact the Corps for verification. One commenter described a philosophy of "if you don't ask, you don't have to worry about being told no." Several commenters suggested that Tulloch losses will continue to increase until the regulatory definition of "dischazge of dredged material" is clazified and legislation closes the Tulloch "loophole." We appreciate these concerns and believe that by setting forth our expectation as to activities that aze likely to result in regulable discharges, today's rule will help enhance protection of the Nation's aquatic resources. Several commenters asserted that the proposal's estimates of Tulloch losses were conservative, and do not include impacts from numerous activities occurring throughout the U.S. For example, one commenter noted that its State data underestimated total wetland acres drained because estimates were based on less than 80% of identified sites on which unauthorized drainage had occurred. Other commenters emphasized that comprehensive data on Tulloch losses is difficult because developers aze not contacting the Corps of Engineers or EPA about many of their projects. We agree that because Tulloch losses are not systematically reported, we have likely underestimated the magnitude of these losses. Numerous commenters submitted information about wetlands and sveam losses since the decision in NMA, and emphasized that impacts are national in scope. One commenter noted that Tulloch losses have been reported in some of the six ecoregions in the U.S. that have been tazgeted for special investment due to their biological diversity, and expressed concern that future losses in these key regions could have serious impacts on tourism, fishing, and other industries reliant on ecological resources. Many commenters highlighted Tulloch losses in their azeas, or described aquatic resources that could be destroyed by futwe projects unregulated due to the "Tulloch loophole."These examples illustrate the nationwide implications of the NMA decision. Descriptions were received of losses in Arkansas, California, Connecticut, Georgia. Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New York, North Carolina, Ohio, Oregon, Tennessee, Wisconsin, and Virginia, among others. Public comments providing these examples are included in the record for today's rule. Many commenters discussed the environmental effects of Tulloch losses. Some commenters noted that extensive ditching and drainage of wetlands had resulted in siltation, sedimentation, and twbidity violations in designated shellfish waters, primary and secondary fishery nursery azeas, and other sensitive coastal and estuazine waters. Commenters described potential adverse effects of instream mining on anadromous fish habitat in the Pacific Northwest and other regions. Several commenters expressed concern about the potential impacts on prairie potholes and other wetlands that provide important habitat for migratory waterfowl. Several commenters expressed concern about impacts on neighbors of unregulated wetlands drainage. Other adverse environmental effects from Tulloch losses described by commenters included: flooding of neighboring businesses, homes and fazms; degradation of receiving waters; shellfish bed closures; degradation of drinking water supplies; foss of critical habitat; loss of aesthetics; loss of recreational activities such as bird watching; and increased toxics loadings from distwbed sediments. Several commenters discussed the environmental impacts of the discharge of dredged material. One commenter quoted the court decision in Denton, noting that the environmental impacts from the discharge of dredged material "(alre no less harmful when the dredged spoil is redeposited in the same wetland From which it was excavated. The effects of hydrology and the environment are the same." The adverse environmental impacts of discharge described by commenters included such effects as: increased turbidity; reduced light penetration; mortality of aquatic plants and animals; depletion of dissolved oxygen;resuspension of contaminants; release of pollutants (heavy metals, nutrients, and other chemicals) from suspended material;