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~ Federal Register/Vo~6, CJo, lli Wednesday; January ;7, 20• Rules and Regulations 4571 Regulatory Flexibility Act (RFAj as Amended by the Small Business Regulatory Enforcement Fairness Act or the Unfunded Mandates Reform Act (U1vIRAj. Some of the commenters expressed concern that, coupled with the changes made in the Corps Nationwide Permit Program, the proposal would result in increased delays in obtaining authorizations; one commenter believed the proposal somehow superceded existing Nationwide Permits. Others questioned how the proposed rule could be deemed to have small economic effects when the preamble to the proposal noted upwards of 20,000 acres of wetlands were subject to ditching and more than 150 miles of streams channelized. Others questioned why, if the rule was not economically significant, it was deemed a "significant regulatory action" For purposes of Executive Order 12866. One commenter expressed concern over the absence ofa grandfather provision. We continue to believe that the economic impacts of the rule will be insignificant. While some of the commenters expressing concern with economic impacts believed they would have to consult in advance with the Carps or that all excavation activities would be subject to regulation, this is not the case. Nothing in today's rule alters the current regulatory provisions that exclude incidental fallback from regulation as a discharge, provisions which were found to comply with the AMC and iVMA decisions by the court in its NAHB Motion Decision. Today's rule does not alter that status quo, and we thus do not agree with conunenters whose economic concerns were premised on the proposal somehow enlarging program jurisdiction or reinstating the invalidated Tulloch Rule. See also section III A of today's preamble for Further discussion. Moreover, as noted in section 11 C of today's preamble, the final rule has been clariFied in a number of respects to make clear it is not creating or imposing new process or information requirements and will not result in substantially increased workloads. First, it no longer uses a rebuttable presumption. Second, the final rule has been clarified to expressly provide that it does not alter any burden in any administrative or judicial proceeding under the CWA. Finally, we have provided a descriptive definition of incidental fallback which helps to clarify for both the regulated community and regulatory staff the type of redeposits which are not subject to regulation. in this respect, it may actually reduce costs For the potentially regulated entities conscientiously attempting to comply with the existing regulations. Moreover, as noted and discussed numerous times in today's preamble, the final rule continues to provide for project-specific considerations in determining if more than incidental fallback results. In this regard, the proposed rule's preamble reference to "potentially" regulated entities was intended to convey this case-by-case nature, and the final rule preamble thus continues to use that formulation. For all of these reasons, we continue to believe that today's rule does not have substantial economic effects, and does not trigger the requirements of the RFA as amended or Today's rule does not affect section 404 Nationwide permits for dredged material dischazges. Rather, it clarifies the types of activities which we regard as being likely to result in regulable discharges. Where only incidental fallback results, a regulable discharge of dredged material does not occur, and there is no obligation to obtain coverage under either an individual or a Nationwide permit. Some of the commenters expressed concern over lengthy permit review times under Nationwide and individual permits; we do not believe that the facts warrant these concerns and have included the most recent available statistics on permit review time in the administrative record for informational purposes, although, as just noted, the rule does not alter existing requirements for permit coverage. With regard to commenters raising concerns over the economic effects of changes that have been made in the Nationwide permit program (see 65 FR 12818), although outside the scope of today's rule, we note that the Corps has prepared and is continuing to work on economic documentation related to that program. We do not believe there is any inconsistency in the discussion of Tulloch losses in the proposed rule's preamble and the conclusion that the rule will not have significant economic effects. As evidenced by photos from field visits, some of those lasses were accompanied by substantial relocation and movement of dredged material, and thus seem to reflect the mistaken belief that any excavation or drainage activity is exempt from regulation under CWA section 404, regardless of the presence of a discharge. Activities resulting in a discharge of dredged material already are subject to regulation under CWA section 404 and today's rule does not alter this jurisdictional prerequisite. With regard to questions concerning consistency of our conclusion that the rule does not have significant economic impacts even though it was submitted for review under Executive Order 12866, we have clazified in today's preamble (see section IV B below) that this submittal is not made on the basis of economic effects, but rather on the portion of that Executive Order addressing, among other things, rules which involve legal or policy issues azising out of legal mandates or the President's priorities. In light of past litigation challenging the 1993 Tulloch Rule and the importance of effectively protecting our Nation's aquatic resources, the proposed and final rules were submitted for review under Executive Order 12866. Finally, with regard to [he commenter expressing concern over the absence of a grandfather provision, we have not included one as today's rule still provides for consideration of project- specific information, and does not create new substantive or procedural requirements. We thus do not believe a grandfather provision is appropriate. 4. Tribal and Federalism Issues Several commenters raised concerns that the proposed rule would have substantial direct effects on States, and so is subject to the "Federalism" Executive Order 13132 (64 FR 43255 (August 10, 1999)). One commenter additionally noted that the proposed rule imposes significant compliance costs on Tribal governments, and therefore must comply with the consultation requirements of Executive Order 13084. Some commenters were concerned specifically about the potential information burden of rebutting the presumption. We disagree that today's rule will have a substantial direct impact on States or impose significant compliance costs on Tribes. Today's rule does not change CWA section 404 program jurisdiction, nor affect a discharger's obligation to obtain a section 404 permit for discharges of dredged material into waters of the U.S. Section 404 always has regulated the "discharge of dredged material." Today's rule simply clarifies program expectations of what activities are likely to result in a regulable discharge. In addition, today's rule does not use the proposal's rebuttable presumption formulation, and has been clarified to expressly state it does not shift any burden in any administrative or judicial proceeding under the CWA. Two commenters suggested that the CWA section 404 program itself was inconsistent with federalism principles, because it imposed on the traditional Stale area of regulating land use or is only weakly connected to a Federal responsibility. Such comments are