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• r ~ Federal Register / Vcl. 55, No. 11 /Wednesday, January 17, 2001 /Rules and Regulations 4553 F.Supp. 270); thus [he definition in today's rule refers to the redeposit of small volumes of dredged material incidental to excavation activities. (See also NMA, 145 F.3d at 1404 (the statutory term "addition" does not cover the situation where material is removed "and a small portion of it happens to Eall back")). The rule language refers to "incidental fallback" as returning dredged material to "substantially the same place" from which it came, a formulation consistent with the AMC and NMA decisions. AMC, 951 F.Supp. at 270; NMA, 145 F.3d. at ]403; see also, NAHB Motion Decision at 13. The examples of incidental fallback given in the rule's definition are drawn from the AMC decision. See, AMC, 951 F.Supp. at 270. We, therefore, believe the definition reflects an objective and good faith reading of the AMC and NMA decisions. See, NAHB Motion Decision, slip o at 14. We believe today's rule both ensures environmental protection consistent with CWA authorities and increases regulatory certainty in a manner fully consistent with the AMC and NMA decisions and the district court injunction. This has been accomplished through regulatory language that serves to put agency staff and the regulated community on notice that absent information to the contrary, it is our expectation 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 discharges of dredged material. in addition, in response to comments, and in order to provide a descriptive standard of what constitutes non-regulable incidental fallback, we have provided in the rule a descriptive definition of that term which we believe to be fully consistent with an objective and good faith reading of the AMC, NMA, and NAHB Motion decisions. At the same time, today's rule is not unnecessarily prescriptive and still allows for the case-by-case consideration of whether a discharge results. In making that determination, the agencies will consider any available information on project plan or design, as well as other information, such as site visits or field observations, during and after project execution. Information which we will consider includes that from project proponents, as well as other available information. [n determining if a regulable discharge of dredged material occurs, we will carefully evaluate whether there has been movement of dredged material away from the place of initial removal. in doing so, we will look to see if earth- moving equipment pushes or relocates dredged material beyond the place of excavation, as well as whether material is suspended or disturbed such that it is moved b}' currents and resettles beyond the place of initial removal in such volume as to constitute other than incidental fallback, and thus be a regulable discharge. See e.g., United States v. M.C.C. of Florida, 722 F.2d 1501 (17th Cir. 1985), vacated on other grounds, 481 U.S. 1034 (1987), readopted in relevant part on remand, 848 F.2d 1133 (11th Cir. 1988) (resettling of material resulting from propeller rotation onto adjacent seagrass beds is jurisdictional). In appropriate situations, we also will include consideration of whether the operation results in the release of pollutants to the environment that were formerly physically or chemically bound up and sequestered from the environment prior to the dredging or excavation of the sediments. See e.g., United States v. Denton, 209 F. 3d 331 (4th Cir. 2000) at 335-336 (discussing release of pollutants in determining sidecasting to be jurisdictional). In considering whether material is relocated, we will look at both horizontal and vertical relocation. For example, sidecasting, which involves horizontal relocation to the side of the ditch, is a regulable discharge. See e.g., Denton, supra; NAHB Motion Decision at n. 3. Similarly, where activities involve the vertical relocation of the material, such as occurs in backfilling of trenches, a regulable discharge results. See e.g., (United States v. Mango, 997 F. Supp. 264, 285 (N.D. N. Y. 1998), affirmed in part, reversed in part on other grounds, 199 F.3d BS [2d Cir. 1999); see, Iroquois Gas Transmission System v. FERC, 145 F.3d 398 at 402 (2nd Cir. 1998) (backfilling of trenches is jurisdictional). We also will take into account the amount or volume of material that is redeposited. Incidental fallback at issue in AMC and NMA was the small-volume fallback from excavation. Similarly, today's rule defines incidental fallback as the "small volumes of dredged material" falling back to substantially the same place as the initial removal. Therefore, we will consider the volume redeposited in deciding whether the activity results in only incidental fal Iback. Thus, the determination of whether an activity results in a regulable discharge of dredged material or produces only incidental fallback involves consideration of the location and the amount of the redeposit. Because of the fact-specific nature of the assessment of these factors, and their interrelated nature, we do not believe it to be feasible or appropriate to establish hard and fast cut-off points for each of these factors. Rather, the totality of the factors will be considered in each case. Finally, we note that the proposed rule would have removed existing paragraph 3(iii) from the Corps' regulations a[ 33 CFR 323.2(d) and the counterpart EPA regulation at 40 CFR 232.2. Those paragraphs contained identical "grandfather" provisions for certain activities [o be completed by August 24, 1995, and were proposed for deletion as being outdated. 65 FR 501211. Today's final rule, consistent with the original proposal, removes those paragraphs from the regulations. III. Discussion of Comments A. Legality of Proposal 1. Proposal as Inconsistent With NMA and Ruling on NAHB Motion to Compel A number of commenters contended that the proposed rule conflicts with the rulings of the courts in AMC, NMA, and the NAHB Motion Decision. Among other things, they chazacterized the rule as an "end-run" around the nationwide injunction affirmed in NMA; "an attempt to re-promulgate [the 1993 Tulloch Rulel;" and an effort to regulate the activities that the NMA court said were not regulable. In particular, these commenters chazacterized the NMA decision as holding that regulating any redeposit of dredged material during removal activities outruns the section 404 provisions of the CWA and that the agencies may only regulate activities that cause a net addition to waters of the U. S. They then argued that the rule is at odds with that holding. In addition, they asserted that the presumption would result in regulating effects as opposed to discharges and would make all excavation and landclearing activities regulated. Several commenters also noted that using a presumption does not address the NMA court's instruction that the agencies attempt to draw a bright line between what is a regulable redeposit versus non regulated incidental fallback. As discussed in more detail in the sections below, we believe that the changes that we have made in today's rule address such concerns. Moreover, we do not agree with the legal analysis in many of the comments. in a number of respects, we believe the commenters have simply read the NMA decision too broadly. The court in NMA stated: "[W]e do not hold that the Corps may not legally regulate some forms of redeposit under its section 404 permitting authority. We hold only that by asserting jurisdiction over 'any