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

Federal Register /Vol. EE, No. 11 /Wednesday,' January 17, ?001 /Rules and Regulations 4555
equipment. As indicated, the NMA
court made it clear that regulable
redeposits could be associated with
such activities and, to the extent that
they were, the NN1A decision did not
preclude regulation. Today's rule
explicitly excludes incidental fallback
from the definition of discharge of
dredged material. First, it does not alter
the May 10, 1999, amendment to the
definition of "discharge of dredged
material," which explicitly excluded
incidental fallback from the definition.
In addition, today's rule provides for the
consideration ofproject-specific
evidence which shows that only
incidental fallback results from the
activity. Thus, we have taken the
necessary steps to ensure that we do not
regulate "incidental fallback" when it is
the only material redeposited during
certain removal activities. The Court's
NAHB Motion Decision found our May
10, 1999, amendment consistent with
the injunction in the NMA case, and
today's rule does not change or alter the
underlying provisions of that rule.
Nevertheless, several commenters
have argued that the agencies are
interpreting "incidental fallback" too
narrowly and have not heeded language
in the Court's NAHB Motion Decision
that cautioned against applying a too
narrow definition of incidental fallback
that would be inconsistent with an
objective and good faith reading of the
AMC and NMA decisions. Today's rule,
however, is entirely consistent with that
order and the decisions in AMC and
NMA. Firs[, commenters are incorrect
that we have construed the meaning of
"incidental fallback" too narrowly
because, in formulating the definition in
today's regulation, we were guided by
the descriptions of incidental fallback in
the judicial opinions. The NMA
decision indicates that incidental
fallback " • • returns dredged
material virtually to the spot from
which it came." 145 F. 3d at 1403. it
also describes incidental fallback as
occurring "when redeposit takes place
in substantially the same spot as the
initial removal." 145 F. 3d at 1401.
Similarly, the District Court 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 the same
place from which i[ was removed." 951
F. Supp. at 270. We believe that
adopting a definition that relies heavily
on the judicial formulations of
"incidental fallback" will ensure
consistency with those opinions as well
as help project proponents understand
the agencies' view of "incidental
fallback." We disagree strongly with
commenters who suggested that we are
trying to inappropriately parse the
language of the AMC and NMA
decisions, and believe that our
definition of "incidental fallback" is
based upon a good faith interpretation
of those rulings. See section II C of
today's preamble for additional
discussion of this issue.
Nevertheless, as discussed in section
IiI E of today's preamble, we did not
adopt a definition of incidental fallback
that would turn on whether the material
was redeposited to "the same general
area" from which it was removed. We
believe this formulation could
potentially be read to mean that
incidental fallback would include any
dredged material redeposited in the
same overall site where excavation
occurred, as opposed to the place of
initial removal. We believe such a broad
formulation would not adequately
recognize court decisions that have
found a regulable discharge where
redeposits have occurred even though
only a short distance from the removal
point. See, e.g., Denton, Mango, etc.
Moreover, contrary to one
commenter's contentions, today's rule is
no[ inconsistent with the approach
taken by [he agencies in the 1997
Tulloch Guidance ("Corps of Engineers/
Environmental Protection Agency
Guidance Regarding Regulation of
Certain Activities in Light of American
Mining Congress v. Corps of Engineers,"
April 11, 1997) ("1997 Guidance"). The
commenter pointed to language in the
1997 Guidance stating [hat if there is
"movement of substantial amounts of
dredged material from one location to
another in waters of the United States
(i.e., the material does not merely fall
back at the point of excavation), then
the regulation of that activity is not
affected by the Court's decision."
Pointing to that language, the
commenter went on to assert the 1997
Guidance meant that unless "substantial
amounts" of dredged material were
moved, then no discharge occurs, and
concluded from this that the proposed
rule was inconsistent with the 1997
Guidance. In response, we do not
believe the 1997 Guidance can be
properly read to support the
commenter's conclusions. The language
quoted by the commenter comes from a
portion of the guidance under the
section header "Types of Discharge Not
Addressed by Court Decision." In
addition, it simply provides guidance to
field personnel that where an activity
results in movement of substantial
volumes of dredged material, regulation
of the activity is unaffected by the
court's decision. The 1997 Guidance
thus does not mean we interpreted the
AMC or NA1A decisions to allow
regulation only if relocation of
substantial amounts of dredged material
takes place. In fact, the 1997 Guidance
provides a[ page 3 [hat: "The Court's
decision only has implications for a
particular subset of discharges of
dredged material, i.e., those activities
where the only discharges to waters of
the U.S. are the relativelysmoll volume
discharges described by the Court as
"incidental fallback' "' (emphasis
added). Nothing in today's rule is
inconsistent with the 1997 Guidance.
The preamble to the proposed rule
clearly recognized that there can be
situations where due to [he nature of the
equipment used and its method of
operation, a redeposit may consist of
material limited to "incidental
fallback." In addition, that preamble
recognized (as do the regulations at 33
CFR 323.2(d)(2)(ii) and 40 CFR 232.2),
for example, that the use of equipment
to cut trees above the roots that does not
disturb the root system would not
involve a discharge. Moreover, as
discussed in section ii C of today's
preamble, we have modified today's
final rule to make it even more cleaz that
project-specific information maybe
used to demonstrate that only
"incidental fallback" will result. Despite
the discussion in the proposed rule's
preamble, some commenters contended
that we were overreaching. We believe
that the language changes reflected in
today's rule as well as the discussion in
today's preamble clarify that redeposits
associated with the use of mechanized
earth-moving equipment will only be
regulated if more than incidental
fallback is involved, while making clear
our view that activities involving
mechanized earth-moving equipment
typically result in more than incidental
fallback. Where the redeposits are
limited to incidental fallback, they
would not be regulated.
c. Covers same activities as 1993
Tulloch Rule. A number of commenters
argued that the proposed rule was an
improper attempt to circumvent the
NMA decisions and reinstate the
invalidated 1993 Tulloch Rule. They
contended that the agencies relied on no
new information in developing this rule
and that large segments of the proposed
rule appeared in, and were used to
justify, the 1993 Rule. Moreover, as
opposed [o narrowing the definition of
"discharge of dredged material" as
instructed by the courts, several argued
that the proposed rule simply swept in
the same activities and created a vague
and impossible standard for rebutting
the presumption. Several asserted [hat
the agencies made no attempt to create