PERMFILE47064

• Permit No: M2001001
• IBM Index Class Name: Permit File
• Doc Date: 1/17/2001
• Doc Name: FEDERAL REGISTER
• Section_Exhibit Name: EXHIBIT K 3
• Media Type: D
• Archive: No

455l~ Federal Register/ Vo). 56, No. 11 /Wednesday,. January 17, 2001 /Rules and Regulations
comments, with approximately 50 of
these expressing opposition to the rule.
Organizations opposing the rule were
primarily construction and development
interests, mining and commerce
interests, as well as local agencies or
water districts with agricultural, flood
control, or utility interests. These
commenters often expressed the view
that the proposal was inconsistent with
the AMC and NMA opinions and the
CWA. These comments also often
expressed concern that the rebuttable
presumption would be difficult or
impossible to rebut and should be
removed from the rule, and also
frequently stated that a definition of
incidental fallback was necessary, with
many expressing preference for a
"brightline" definition.
Organizations supporting the proposal
or its strengthening included state and
local natural resource and
environmental protection agencies and
environmental organizations. In
addition, one detailed letter from a
group of wetland scientists associated
with a variety of institutions was
received, and expressed support for the
proposed rule and its strengthening.
Commenters favoring the rule or its
svengthening generally believed that
the proposed rule's presumption that
mechanized landclearing, ditching,
channelization, in-stream mining, or
other mechanized excavation activity in
waters of the U.S. result in more than
incidental fallback, and thus involve a
regulable discharge of dredged material,
was appropriate. Many of these
commenters, especially environmental
organizations, requested that the rule be
strengthened in a number of ways,
particularly by identifying certain
activities as always requiring a permit,
and making clear that if chemical
constituents are released into the water
column or if material is moved in a way
that permits its more ready erosion and
movement downstream, a regulable
discharge occurs. In addition, many of
the commenters favoring the proposed
rule or requesting that it be strengthened
also expressed the view that it should
define incidental fallback.
We have carefully considered all the
comments received on the proposal in
developing today's final rule. A detailed
discussion of those comments and our
responses is set out in section III of
today's reamble.
Like the proposal, todav's rule
modifies our definition of "discharge of
dredged material" in order to clarify
what types of activities we believe are
likely to result in regulable discharges.
As described in the preamble to the
proposed rule (65 FR 50111-501131.
based on the nature of the equipment,
we believe that the use of mechanized
earth moving equipment to conduct
landclearing, ditching, channelization,
in-stream mining, or other mechanized
excavation activity in waters of the U.S.
is likely to result in regulable discharges
of dredged material.
However, in response to comments
we received expressing concern that the
proposal would result in a shift in the
burden of proof and impose undue
burdens on project proponents to
"prove a negative," we have made a
number of changes to clarify that this is
not our intent and will not be a result
of this rule. Because these concerns
primarily appeared to azise out of the
proposed rule's use of a rebuttable
presumption formulation, we have
redrafted the rule language to eliminate
use of a rebuttable presumption.
As we had explained in the proposed
rule preamble, the proposal was
intended to express our expectation that
the activities in question typically result
in regulable discharges, not to create a
formal new process or record keeping
requirements (65 FR 50113). The rule
now provides that the agencies 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 U. S. as resulting in a
discharge of dredged material unless
project-specific evidence shows that the
activity results in only incidental
fallback
By no longer employing a rebuttable
presumption, we believe it is more
evident that we are not creating a new
process or altering existing burdens
under the CWA to show a regulable
discharge of dredged material has
occurred. To make this point
unmistakably clear, we also have added
a new sentence to the rule language that
expressly provides the rule does not and
is not intended to shift any burden in
any administrative or judicial
proceeding under the CWA. In addition,
the rule language has been clarified to
make it more evident that we will not
look to project proponents alone to
provide information that only incidental
fallback results. Thus, the rule language
now refers to "project-specific evidence
show(ing) [hat the activity results in
only incidental fallback." While this
might consist in large part of
information from project proponents,
we also will look to all available
information, such as that in agency
project files or information gained from
site visits, when determining ii a
discharve of dredged material results.
We a~so received a number of
comments questioning how the
presumption contained in the proposed
rule might apply to particular
equipment, or asserting that the
presumption in the proposal was too
broad. We thus aze clarifying in the final
rule language itself that we are
addressing mechanized "earth-moving"
equipment (e.g., bulldozers, graders,
backhoes, bucket dredges, and the like).
Earth-moving equipment is designed to
excavate or move about large volumes of
earth, and we believe it is reasonable
and appropriate for the agencies to view
the use of such equipment in waters of
the U. S. as resulting in a discharge of
dredged material unless there is case
specific information to the contrary. The
administrative record of today's rule
contains additional information on the
nature of this equipment and its
operation.
We received a large number of
comments, both from those opposed to
the proposed rule, as well as those
supporting [he proposal (or its
strengthening), requesting us to provide
a definition of "incidental fallback."
The proposed rule had not done so,
instead providing preamble discussion
of the relevant case law addressing that
term, as well es referring readers to the
preamble to our earlier May 10, 1999,
rule (65 FR 50109-50110; 64 FR 25121).
Subsequent to the proposal, as many of
the commenters opposed to the proposal
noted, the court, in its decision on the
NAHB motion to compel compliance
with the AMC court's injunction,
cautioned against parsing the AMC and
NMA language to render an overly
narrow definition of incidental fallback.
NAHB Motion Decision, slip opinion
12-14.
In light of numerous comments
requesting [hat a definition of incidental
fallback be included in the regulations,
and consistent with our preamble
discussions of relevant case law and the
mere [event dISCUSSIOR In the Conrt's
NAHB Motion Decision, we have
provided a descriptive definition in the
final rule. That language, which is based
on the AMC and NMA, cases and the
NAHB Motion Decision, provides that:
Incidental fallback is the redeposit of small
volumes of dredged material that is
incidental to ezcava[ion 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 Iha[ is disturbed when
dirt is shoveled and the back-spill that comes
off a bucket when such small volume o(soil
or dirt Falls into substantially the same place
from which it was initially removed.
This language is fully consistent with
the spirit and intent of [hose decisions.
As noted in the AMC decision,
incidental fallback involves "incidental
soil movement from excavation" (951