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' ~ 455'& Federal Register/Vol,~~6, No. 71!Wednesday, ;anuary 17, 2001/Rules and Regulations a "brightline" distinction between incidental fallback and regulable redeposits as encouraged by the courts and instead, simply shifted the burden to the regulated community. The end result, they argued, would be that the agencies would regulate activities that are not appropriately within the scope of the CWA, because, among other reasons, people lack the resources, wherewithal, or information to rebut the presumption. The changes that we have made in the rule language further clarify the distinctions between our approach today and the 1993 Tulloch Rule. We believe that today's rule reflects important differences with the 1993 Tulloch Rule that make our action consistent with the lJMA rulings. First, as discussed previously in this preamble, today's amendments along with those made on May 10, 1999, explicitly and repeatedly exclude incidental fallback from the definition of "discharge of dredged material." Today's rule also provides a descriptive definition of incidental fallback and explicitly indicates that project-specific evidence maybe used to show that only incidental fallback will result from the activity. These provisions are a direct response to the IVMA rulings and to the comments that we received. In contest, the relevant sections of the 1993 Tulloch Rule included any redeposit, including redeposits consisting of only incidental fallback. Similarly, contrary to the suggestion of one commenter, the rebuttable presumption would not have recast in different legal language the central hypothesis of the Tulloch Rule that every redeposit of dredged material was a discharge subject to regulation under section 404. The commenter referenced language from the 7993 Preamble stating that it is "virtually impossible to conduct mechanized landclearing, ditching, channelization or excavation in waters of the United States without causing incidental redeposition of dredged material (however small or temporary) in the process." 58 FR at 45017. in contrast, the position that we are taking today does not cast the jurisdictional net so broadly. Both the rebuttable presumption in the proposal and today's rule are more narrow in scope because we are not regulating incidental fallback. As discussed in the previous paragraph, the regulations defining the discharge of dredged material were amended on May 10, 1999, to make clear that incidental fallback is not encompassed within that definition and today's rule does not alter that exclusion. Second, some commenters claimed that the rebuttable presumption that was in the proposed rule is the same as the de minimis exception [hat was added to the regulations as part of the 1993 Tulloch Rule and continues to be a part of the definition of dischazge of dredged material today. 33 CFR 323.2(d)(3J; 40 CFR 232.2. We believe that this comment misunderstands the relationship between today's rule and the de minimis exception contained in the 1993 Tulloch Rule. We have not reopened in this rulemaking the de minimis exception from the 1993 rule, since that provision is irrelevant to determining whether an activity results in a discharge of dredged material. As promulgated in the 1993 rule, the de minimis exception provides that section 404 authorization is not required for the incidental addition of dredged material associated with an activity that would not destroy or degrade a water o[ the U.S. Under the 1993 rule, mechanized landclearing, ditching, channelization, or other excavation activity that results in a redeposit into waters of the U.S. were presumed to destroy or degrade waters of the U.S., unless the project proponent demonsvated prior to proceeding with the activity that it would not cause such effects. 33 CFR 323.2(d)(3); 40 CF'R 232.2. Thus, the de minimis exception in the existing regulations and its associated presumption address the issue of whether otherwise regulable discharges are excluded from section 404 authorization because of minimal effects on the environment, and does not, as some commenters suggested, serve as a means of asserting authority over activities outside our jurisdiction based on the effects of activities. By contrast, today's rule addresses the issue of whether a regulable discharge of dredged material is even involved. Today's rule does not eliminate the requirement fora "discharge." Instead it reflects the agencies' view that regulable discharges generally are expected to occur when certain activities using mechanized earth-moving equipment are undertaken. The proposed rule described this view in terms of a presumption but allowed project proponents to demonstrate that their activities caused only incidental fallback, which is beyond section 404 jurisdiction. Today's rule does not use the words "presumption" or "presume" to avoid any misunderstanding that we are attempting to shift CWA burdens to the project proponent. If the activity involves only incidental fallback, it would not be regulated regardless of the level of associated environmental impact because the statutory prerequisite of a discharge has not occurred. Moreover, unlike the treatment oEmechanized activities when attempting to qualify for the de minimis exception, neither the proposed nor final rules require that the project proponent affirmatively demonstrate to the agencies that no discharge will occur prior to proceeding with his activities. Thus, the de minimis exception and today's rule serve different purposes and operate differently within the context of the regulation and for that reason the de minimis exception was not reopened as part of this rulemaking. [n addition, one commenter charged that by adopting a rebuttable presumption similar to the one proposed in the 1992 proposal but that was dropped prior to final promulgation in 7993, the agencies make clear their intent to sweep into regulation specific activities rather than determine actual discharges. In response, we note [hat the 1992 proposal actually contained an irrebutable presumption that was more inclusive than what we promulgated in the 7993 Tulloch Rule and than either the proposed or final rules we are addressing today. In fact, contrary to the sentiment expressed in the comment, the allowance for project-specific evidence that the activity results in only incidental fallback reflects our effort to restrict regulation to only regulable discharges. We do not believe that it is of any significance that there is overlap between the activities addressed by today's rule and the 1993.Tulloch Rule. The NMA court did not find that all activities potentially encompassed by that rule were beyond the scope of the CWA, but rather that incidental fallback was excluded. NAHB Motion Decision. Thus, it is no surprise that the two rules address some of the same activities. d. Improperly relies on an "effects" test. Several commenters argued that the proposed rule improperly relies on the broad goals of the CWA and an "effects test" as the basis for establishing jurisdiction. They contended that this approach is inconsistent with the NMA- related decisions and with other cases addressing the basis for jurisdiction under the CWA. They stated further that the CWA was not intended to provide comprehensive protection for wetlands. We believe that the commenters misunderstood the purpose and effect of the proposal, as well as have misread the conclusions in the NAHB Motion Decision about an effects based test of jurisdiction. First, the agencies agree that the CWA regulates "discharges" and today's rule