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•. ` r~ ~^ Federal Register/Vol. 66, [Vc. 11/Wednesday; January 17, 2001!Rules and Regulations 4575 (d)(2)" and add. in their place, the words " aragraph (d)(3)". b. Redesignate paragraphs (d)(2) through (d)(5) as paragraphs (d)(3) through (d)(6), respectively. c. Add new paragraph (dJ(2). d. in newly redesignated paragraph (d)(4), in the first sentence of paragraph (d)(4)(i) remove each time they appear the words "paragraphs (d)(4) and (d)(5)" and add, in their place, [he words "paragraphs (d)(5) and (d)(6)", remove paragraph (d)(4)(iii), and redesignate paragraph (d)(4J(iv) as new paragraph (d)(4)(iii). The addition reads as follows: §323.2 Definitions. (d) . . (2)(i) The Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback. This pazagraph (i) does not and is not intended [o shift any burden in any administrative or judicial proceedingg under the CWA. (ii) incidental fallback is the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed. Dated: January 8, 2001. Joseph W. Westphal, Assistant Secretory of the Army(Ci vil Works), Deportment of the Army. Environmental Protection Agency 40 CFR Chapter I Accordingly, as set forth in the preamble 40 CFR part 232 is amended as set forth below: PART 232-{AMENDED] 1. The authority citation for part 232 continues to read as follows: Authority: 33 U.S.C. 1344. 2. Amend section 232.2 as follows: a. In paragraph (3) introductory text of the definition of "Discharge of dredged material", remove the words "paragraph (2)" and add, in their place, the words "paragraph (3)". b. In the definition of "Discharge of dredged material", redesignate paragraphs (2) through (5) as paragraphs (3) through (6), respectively. c. In the definition of "Discharge of dredged material", add new pazagraph (2). d. [n the first sentence of newly redesignated pazagraph (4)(i) remove each time they appear the words "paragraphs (4) and (5)" and add, in their place, the words "paragraphs (5) and (6)", remove paragraph (4)(iii), and redesignate paragraph (4)(iv) as new pazagraph (4)(iii). The addition reads as follows: §232.2 Deflnftions. Discharge of dredged material " (2)(i) The Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback. This paragraph (i) does not and is not intended to shift any burden in any administrative or judicial proceeding under the CWA. (ii) Incidental fallback is the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material Ealls back to substantially the same place as the initial removal. Examples of incidental fallback include sail that is disturbed when dirt is shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed. Dated: January 9, 2001. Carol M. Browner, Administrator, Environmental Protection Agency. IFR Doc. 01-1179 Fi]ed 1-16-01; 8:45 am] e1lLJNG CODE 6560-60~