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45'70 Federal Register/ Vol, 66, No. 11! Wednesday; January i; , ?001 /Rules a: d Regulations biological uptake of pollutants; sedimentation and smothering of benthic organisms; algal population explosions; fish kills; nuisance odors; and a decline in biodiversity. As we noted in our discussion of the comments concerning the use of an effects based test to establish jurisdiction (see section III A 1 d of today's preamble), today's rule does not attempt to regulate activities beyond the scope of the CWA or base our jurisdiction on effects. Some commenters characterized as unsubstantiated the preamble's estimates of wetland acres lost and stream miles channelized afrer the Tulloch Rule's invalidation. One commenter also suggested that data on Tulloch losses should be grouped by indusVy category. We agree that precise comprehensive data on Tulloch impacts is difficult to collect. The estimates discussed in the proposal reflect projects that have come to the attention of agencies' field offices, through field observations, individual reports, and/or newspapers and other information sources. We believe that the preamble estimates of Tulloch losses aze conservative, because persons undertaking sucb activities often proceed under the assumption that no authorization from the Corps is required. The proposal's request for information on Tulloch losses is intended to help ensure available data is as complete as possible. We do not agree, however, that the collection and categorization of data by industry is necessazy, because today's rule does not regulate by industry category but on the basis of discharges to waters of the U.S. One commenter asserted that Tulloch losses have been more than offset by mitigation required for permitted losses, because the preamble to the proposal cites estimates of over 20,000 acres of unregulated wetlands loss afrer invalidation of the Tulloch Rule, plus an estimated 21,500 acres of wetlands lost through authorized activities in 1999, with 46,000 acres of compensatory mitigation obtained in 1999. However, only permitted losses resulted in obtaining compensatory mitigation. Compensatory mitigation ratios for permitted losses are typically higher than t:l to address a variety of factors considered during permit evaluation, such as the expected likelihood of success: the percentage of restoration, enhancement, and/or preservation intended; the temporal loss of functions and values before the mitigation is fully functioning; and other relevant considerations. Tulloch losses, on the other hand, involve activities which are not subject to environmental review or compensatory mitigation. Thus, [he compensatory mitigation figures reported in the proposed rule's preamble were designed tc offset permitted losses only, not Tulloch losses. One commenter disagreed about implications of wetlands losses, expressing doubt about whether wetlands losses might result in a potential for increased flooding, and characterizing the link between the two as an unsupported assumption. We note, however, that an extensive body of scientific literature indicates that wetlands typically store water at least temporazily, keeping it from flowing Further downhill and downstream, thereby helping reduce the frequency and severity of flooding. For example, the U.S. Geological Survey's National Water Summary on Wetlands Resources (1996) notes that "[iln drainage basins with Flat terrain that contains many depressions (for example, the prairie potholes and playa lake regions), lakes and wetlands store large volumes of snowmelt and (or) runoff. These wetlands have no natural outlets, and therefore this water is retained and does not contribute to local or regional flooding." Other studies, such as the 1994 report by the Interagency Floodplain Management Review Committee, similarly have [ound links between wetlands losses and flooding. Shazing the Challenge: Floodplain Management into the 21st Century, at Vol. 1, pg. ix; Vol. V at pp 79-88. 2. Miscellaneous Issues One commenter raised an issue with respect to whether or not snow plowed into headwater creeks would be regulated by today's rule. Although we recognize that other Federal or State requirements may govern such an activity, we do not regulate snow plowing into waters of the U. S. under section 404. Today's rule addresses discharges of dredged material, which snow is not. However, if during a snow removal operation, snowplows, front loaders, bulldozers, or similar equipment dischazge gravel, sand, or other material into waters of the U.S. or move sediment or soil to new locations within a water of the U.S., then such activities would be regulated under section 404. Some commenters raised concerns about the definition of "waters of the U.S.," expressing the view that the term is very broad and maybe overly inclusive. Today's rule clazifies the definition of the term "discharge of dredged material" regulated under CWA section 404. It does not address the definition or scope of "waters of the U.S." We are contemplating initiating rulemaking to clazify the definition of "waters of the U.S." (see the Unified Regulatory Agenda, 65 FR 23574 (April 24, 2000)), and would encourage public comments on a proposed definition at that time. We also note issues related to the scope of "waters of the U.S." are currently pending before the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (No. 99-1178) (SWANCC). One commenter indicated support for the deletion of the "grandfather" provision that was a part of the previous definition of dredged material. We agree, and today's final rule deletes that provision as being out of date and no longer necessary. A number of commenters raised issues'that, while related to wetlands regulation, were not germane to the proposed rule. Examples include comments regarding delineation methodology or geographic jurisdiction of the section 404 program, fill material regulation or the agencies proposed rulemaking regarding the definition of fill material, and genera] statements about section 404 regulation. These comments have been made available to other relevant dockets or addressed, as appropriate, in the record for today's rule. 3. Economic Issues Many commenters opposed to the rule expressed concern over its economic effects. Some of the commenters raising economic concerns believed that the proposal would have regulated "incidental fallback" or was a return to the Tulloch Rule invalidated by the court in AMC and NMA. Many of the comments raising economic issues questioned the discussion in the proposed rule's preamble that it did not alter or enlazge section 404 program jurisdiction or create information requirements. Other commenters expressed concern with the expense and difficulty of rebutting the presumption contained in the proposed rule, especially when, in their view, this was a standardless proposition. Another asserted their belief that the reference in the proposed rule preamble to "potentially" regulated entities was misleading, as all persons engaging in excavation activities listed in the rule would be regulated. Some of the commenters believed the proposal would have an annual economic effect of more than $100 million dollars, and that issuance of the proposal without a detailed economic analysis or consulting with affected entities violated the requirements of the