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' 4554 Federal Register/Vol. E(i, No. 11/1Nednesday, January 1', 2001!Rules and Ragulations redeposit,' including incidental fallback, the Tulloch Rule outruns the Corps' statutory authority." 145 F. 3d at 1905. Thus, the court explicitly recognized that some redeposits are regulable and indicated that the agencies' attempt to draw a line between incidental fallback and regulable redeposits would be entitled to deference. The court also acknowledged that sidecasting, the placement of removed soil in a wetland some distance from the point of removal, has always been regulated by the agencies; and finally, it recognized that removal of dirt and gravel from a streambed and its subsequent redeposit in the waterway after segregation of minerals constitutes an addition. The court's acceptance of these principles undercuts the conclusion suggested by some that its statement that "incidental fallback represents a net withdrawal, not an addition" must be read to mean that activities that involve removal of material can never constitute a discharge. Similarly, the court's statement that "Congress could not have contemplated that the attempted removal of 100 tons [of dredged spoilt could constitute an addition simply because only 99 tons were actually taken away" must also be reconciled with the court's clear recognition that some redeposits constitute an addition. In addition, the Court's NAHB Motion Decision supports the agencies' view that a more narrow reading of the NMA decision than some commenters are advocating is correct. The court stated: Inasmuch as this Court in AMC, and the Court 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 Ifoo[¢o[e omitted] ' 'The May 30th Rule is facially consistent with the Court's i¢junction because it eliminates §404 jurisdiction over incidental fallback, and removes the language assening jurisdiction over "any" redeposit of dredged material. The rule makes clear that the age¢cies may not exercise § 404 jurisdiction over redeposits of dredged material to the eaten( [ha! the redeposits involve only incidental fallback [citation omitted) (emphasis added). Court's Denial of Motion to Compel, at 9-10. Thus, the sweeping claims that "any redeposit" and all removal activities are beyond the scope of the CWA can not be substantiated based on NMA or other existing law. Today's rule provides a definition of "incidental fallback" that adheres to the judicial guidance provided in the AMC and NMA cases and the NAHB Motion Decision, while making clear to the public the types of activities that we believe aze properly regulated. a. Excavation not covered. The contention that excavation and other removal activities can never be regulated fails to recognize that "discharges of pollutants" can occur during removal activities even where the ultimate goal is withdrawal of material. That the CWA definition of "pollutants" does not include "incidental fallback from dredging operations" is of no significance, contrary to the suggestion of one commenter, because it does include "dredged spoil." Several commenters referenced dictionary definitions of "excavate" and "discharge" to buttress their view that a removal activity can not involve a discharge. One commenter, in particular, argued that "discharge" denotes an intentional act, and that redeposits from excavation activity may not be regulated because they do not involve an intentional act. These definitions, however, do not indicate whether, in a given situation, pollutants were added to waters of the U.S. within the meaning of the CWA, the only issue we are concerned with here. First, as indicated in section III. A. 4 of this preamble, there is no support under the CWA for the position that a discharge must be an intentional act. [n addition, as indicated in the preamble to the proposed rule, as a general matter. excavation and other earth-moving activities that are undertaken using mechanized earth-moving equipment typically result in the addition of a pollutant to navigable waters because the nature of such equipment is to move large volumes of material within and around the excavation site. The court in NMA also recognized that redeposits associated with earth- moving activities could be regulated. ("But we do not hold that the Corps may not legally regulate some forms of redeposit under its section 404 permitting authority." 145 F. 3d at 1405.). As described in the preamble to the proposed rule, the machinery used for excavation, mechanized landclearing, and other removal activities generally results in substantial soil movement beyond the area from which the malarial is being removed (See also section IiI D of today's preamble). This substantial soil movement and distribution of material makes the situations involving mechanized earth-moving equipment akin to the numerous cases in which the courts have found that the redeposit of material constituted the discharge of a pollutant. See e.g., Avoyelles Sportsmen's League v. Marsh, 775 F. 2d 897, 923 (5th Cir. 1983)(recognized that the term "discharge" covers the redepositing of materials taken from wetlands); United Stales v. Mango, 997 F. Supp. 264, 285 (N.D. N. Y. 1998), affirmed in part, reversed in part on other grounds, 199 F. 3d 85 (2d Cir. 1999)(found that backfilling of trenches with excavated material was a discharge); United S[a[es v. M.C.C. of Florida, Inc., 772 F. 2d 1501 (11th Cir. 1985)(holding that redeposition of seabed materials resulting from propeller rotation onto adjacent sea grass beds was an "addition" of dredged spoil); S/ingerDrainage Inc., CWA Appeal No. 98-10 (EPA Environmental Appeals Board Decision (EAB)(holding that backfilling by a Hoes trenching machine is a regulable dischazge of dredged material, not incidental fallback)(appeal pending); United Stoles v. Deacon, 209 F. 3d 331 (4th Cir. 2000)(holding that sidecasting is a regulated discharge); see also United States v, Huebner, 752 F. 2d 1235 (7th Cir.), cert denied, 474 U.S. 817 (1985) (sidecasting materials along a ditch and then using a bulldozer to spread material over several acres constituted a discharge of dredged material). We do recognize, however, that some excavation activities by using specialized techniques or precautions may be conducted in such a manner that no discharge of dredged material in fact occurs. Today's rule specifically provides Eor consideration of project- specific information as to whether only incidental fallback results in determining jurisdiction under section 404. For example, we acknowledge that some suction dredging operations can be conducted in such a manner that if the excavated material is pumped to an upland location or other container outside waters of the U.S. and the mechanized removal activity takes place without re-suspending and relocating sediment downstream, then such operations generally would not be regulated. Other examples of activities that would generally not be regulated include discing, harrowing, and harvesting where soil is stirred, cut, or turned over to prepare for planting of crops. These practices involve only minor redistribution of soil, rock, sand, or other surface materials. The use of K- G blades and other forms of vegetation cutting such as bush hogging or mowing that cut vegetation above the soil line do not involve a discharge of dredged material. b. Toa narrow reading of "incidental fallback". Several commenters incorrectly equate "incidental fallback" with all dredged spoil that is redeposited in regulated waters as a result of activities using mechanized