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r Federal Register /Vol. 66, No. 11 i Wednesday, January 17, 2001 /Rules and Regulations 4551 term "discharge of dredged material" as including "any addition, including any redeposit, of dredged material, including excavated material, into waters of the U.S. which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation that destroys or degrades waters of the U.S." The American Mining Congress and several other trade associations challenged the revised definition of the term "discharge of dredged material," and on January 23, 7997, the U.S. District Court for the District of Columbia ruled that the regulation exceeded our authority under the CWA because it impermissibly regulated "incidental fallback" of dredged material, and enjoined us from applying or enforcing the regulation. That ruling was affirmed on June 19, 1998, by the U.S. Court of Appeals for the District of Columbia Circuit. Americian Mining Congress v. United Slates Army Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997) ("AMC'); affd sub nom, National Mining Association v. United States Army Carps of Engineers, 145 F.3d 1339 (D.C.Cir. 1998) ("NMA")•. On May 10, 1999, we issued a final rule modifying our definition of "discharge of dredged material" in order to respond to the Court of Appeals' holding in NMA, and to ensure compliance with the District Court's injunction (64 FR 25120). That rule made those changes necessary to conform the regulations to the courts' decisions, primarily by modifying the definition of "discharge of dredged material" to expressly exclude regulation of "incidental fallback." The NMA court did not find that all redeposits are unregulable, and recognized that redeposits at various distances from the point of removal are properly the subject of regulation under the CWA. As explained in the preamble to the May 10, 1999, rulemaking, our determination oEwhether a particular redeposit of dredged material in waters of the U.S. requires a section 404 permit would be done on a case-by-case basis, consistent with our CWA authorities and governing case law. The preamble to that rulemaking also described and summarized relevant case law (see 64 FR 25721), for example, noting that the Nh1A decision indicates incidental fallback ". . .returns dredged material virtually to the spot from which it came" (ta5 F.3d at t403) and also describes incidental fallback as occurring "when redeposit takes place in substantially the same spot as the initial removal." 145 F.3d at 1401. The Nh(A court also noted that "incidental fallback" occurs when a bucket used to excavate material from the bottom of a river, stream, or wetland is raised and soils or sediments fall from the bucket back into the water; the court further noted that "fallback and other redeposits" occur during mechanized landclearing, when bulldozers and loaders scrape or displace wetland soil as well as during ditching and channelization when draglines or backhoes are dragged through soils and sediments. ]45 F.3d at 1403. The preamble also noted that the district court in AMC described incidental fallback as "the incidental soil movement from excavation, such as the soil that is disturbed when dirt is shoveled, or the back-spill that comes off a bucket and falls back into [he same place from which it was removed." 951 F.Supp. at 270. The NMA Court noted that the CWA "sets out no bright line between incidental fallback on the one hand and regulable redeposits on the other" and that "a reasoned attempt to draw such a line would merit considerable deference." (145 F.3d at 1405). The preamble to our May 10, 1999, rulemaking stated that we would be undertaking additional notice and comment rulemaking in furtherance of the CWA's objective to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Subsequent to our May 70, 1999, rulemaking the National Association of Homebuilders (NAHB) and others filed a motion with the district court that issued the AMC injunction to compel compliance with that injunction. The NAHB motion, among other things, asserted that [he May 10, 7999, rule violated the court's injunctlon by asserting unqualified authority to regulate mechanized landclearing. A decision on that motion was still pending at the time we issued our August 16, 2000 proposal (65 FR 50108) to establish a rebuttable presumption that mechanized landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the U.S. will result in regulable discharges of dredged material. As explained in the preamble, the proposed rule set forth: ' 'our expectation that, absent a demonstration to the contrary, the activities addressed in the proposed rule typically will result in more than incidental Fallback and thus result in regulable redeposits oC dredged material. It would not, however, establish a new formal process or new record keeping requirements, and Section 404 permitting and applicatico requirements would continue to apply only to regulable discharges and not to incidental Fallback. 65 FR 50113. As with today's final rule, the proposal addressed only matters related [o the "discharge of dredged material" under section 404 of the CWA. We note that other regulatory authorities maybe applicable to activities in waters of the U. S., including stormwater permitting requirements under CWA section 402, and, in the case of "navigable waters of the U.S." (so-called navigable in fact waters), section 10 of the Rivers and Harbors Act of 1899. Readers should refer to the preamble of the proposal For further information on those authorities (65 FR 50114). The proposed rule had a 60 day comment period, which ended on October 16, 2000. While that public comment period was still open, on September 13, 2000, the district court denied NAHB's motion to compel compliance with the AMC injunction, finding that our eazlier May S0, 1999, rule was consistent with its decision and injunction, and the decision of the D.C. Circuit in NMA. American Mining Congress v. U. S. Army Corps of Engineers, Civil Action No. 93-1754 SSH (D.D.C. September 13, 2000) (hereafter refersed to as "NAHB Motion Decision"). [n that decision the court found that, "Inasmuch as this Court in AMC, and the Cotrrt of Appeals in NMA, invalidated the Tulloch Rule because it regulated incidental fallback, the Court's order enjoining the agencies from applying or enforcing the Tulloch Rule must be understood to baz the agencies from regulating incidental fallback." NAHB Motion Decision, slip op. at 8- 9.The court then went on to determine that by making cleaz that the agencies may not exercise section 404 jurisdiction over redeposits of dredged material to the extent that the redeposits involve only incidental fallback, the May 10, 1999, rulemaking did not violate the court's injunction and is consistent with the decisions in AMC and NMA. Id. at 10-11. C. Discussion of Final Rule We received approximately 9,650 comments on the August 16. 2000, proposal (because the numbers given are rounded off, we refer to them as "approximate.") Approximately 9,500 were various types of individual or form letters from the general public expressing overall support Eor the rule or requesting it be strengthened. We received approximately I50 comments from various types of organizations, state or local agencies, or commercial entities. 75 of which provided detailed