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' , Federa: Register /Vol. 66, Nc. 11 /Wednesday, ?anuazy 17, 2001 /Rules 2nd Regulations 4557 in no way establishes an effects-based test for asserting CWA jurisdiction. As was indicated in the proposal, the presence of a "discharge" of dredged or fill material into waters of the U. S. is a prerequisite to jurisdiction under section 404. The purpose of this rule is to provide further clarification of what constitutes a "discharge of dredged material." As indicated, we 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 there is project-specific information to the contrary. Thus, although significant adverse environmental effects can result from activities undertaken using mechanized earth-moving equipment, the jurisdictional basis is the presence of regulable discharges. To the extent these comments are addressing the de minimis exception contained in the 1993 rule, the comments are outside the scope of this rulemaking because we have not reconsidered that provision here. We note that the continued operation of this existing regulatory provision is consistent with AMC and IVMA. The NAHB Motion Decision affirmatively rejected the position that "the Court's injtmction must be understood to bar application and enforcement of the effects-based test of jurisdiction ' ' because the Court also rejected this component of the Tulloch Rule ' ` ' [citation omitted.)" The Court stated The Court rejected this [es[ because the agencies ware using it to assert jurisdiction over otherwise uon-regulable activities; [he Court expressly did not determine whether the effects-based test o[ jurisdictio^ would be valid if applied to activities that otherwise come within the scope of the Act. [citation omitted) Thus, where the effects-based test is mot applied to otherwise nom-regulable activities under the Act (such as incidental fallback), the Gourt's injumctiom does mot baz its application. NAHB Motion Decision, n. 8. Likewise today's rule is not in conflict with the Slinger decision as asserted by one of the commenters. In Slinger Drainage, Inc., EPA's Environmental Appeals Board affirmed EPA's general view that "the pivotal consideration for purposes of deciding whether an individual activity is or is not subject to [he section 404 permitting requirement is whether a discharge of dredged material takes place." In re: Slinger Drainage, Inc., CWA Appeal No. 98-10 (September 29, ]999)(slip opinion), at 19. Notably, the EPA Environmental Appeals Board also stated in that opinion that the requirement for a discharge "is not to say that the'effects' of a particular activity are of no concern. In a broad sense effects are the driving force behind the entire regulatory scheme to protect wetlands." Id. Finally, one commenter suggested that discussions in the proposed rule's preamble concerning the release of contaminants in the water column indicate that the agencies "base their finding of jurisdiction on analysis of the effects of the mechanized landclearing, ditching, or other activity." This is incorrect. Rather than being regulated based on the effect on water quality, as discussed in section III D of today's preamble, the transport of dredged material downstream or the release of previously bound-up or sequestered pollutants (which are in and part of the dredged material) may constitute a discharge, not by virtue of associated environmental impacts, but by virtue of being added to a new location in waters of the U. S. In evaluating whether suspension or downstream transport results in a regulable discharge or only incidental fallback, we would consider the nature and amount of such suspension and transport. e. Inconsistency with District Court "specified disposal site" rationale. Several commenters contended that today's rule ignores the AMC court's analysis of "specified disposal sites." We do not see today's rule as inconsistent with this aspect of the court's decision. The court in AMC held that, even if the term "addition of a pollutant" were broad enough to cover incidental fallback, the language "specified disposal sites" in section 404(a) would have led the court to the same holding. Because today's rule does not regulate incidental fallback, it is entirely consistent with this aspect of the court's opinion. Moreover, the court's reasoning in AMC was that the 1993 rule effectively made all excavation sites into disposal sites, rendering the statutory language "at specified disposal sites" superfluous. Today's rule does not render the statutory language superfluous because we are only asserting jurisdiction over redeposits that occur outside the place of initial removal. 2. Proposal as Inconsistent With [he CWA Several other claims were made that today's rule is not consistent with the CWA. Those claims included several pronouncements that the CWA only regulates discharges and that the legislative history demonstrates that Congress did not intend the CWA to regulate minor discharges associated with dredging, mechanized landclearing, excavation, ditching, channelization, and other de minimis discharges. One commenter disagreed with the proposition that section 404(EJ(2) supports the proposed rule because it reflects Congressional recognition that these activities result in discharges. This commenter cited an excerpt from the NMA court decision- that the court was "reluctant to draw any inference [from section 404(f)] other than that Congress emphatically did not want the law to impede these bucolic pursuits"-to support his assertion. Moreover, one commenter argued that the lack of a specific reference to excavation activities in the CWA is further evidence that small-volume, incidental deposits accompanying landclearing and excavation activities were not intended to be covered under section 404. Several commenters also contended that the CWA does not require a person to make a prima facie showing that activities are exempt from regulation under the Act and the agencies can not administratively impose this requirement. As discussed in section III A d, we recognize that the statute and legislative history require a discharge for the requirements of the CWA to apply. The definition of discharge of dredged material contained in today's rule is, therefore, grounded on the statutory term "discharge of a pollutant" contained in section 502(12) of the Act and relevant court decisions that have construed the discharge requirement. We think, however, that some commenters' assertion that legislative intent mandates a broad construction of the term "incidental fallback" finds no support either in section 502(12) (defining "discharge of a pollutant" to include "anvaddition of onypollutant" (emphasis added)) or section 404(f). We do not agree that the 1972 and 1977 legislative histories generally indicate that Congress did not intend to regulate minor discharges resulting from certain activities, including excavation. To the contrary, while Congress was focused on preserving the Corps' autonomy with respect to navigational dredging, i[ is clearly over-reading the history to suggest that other types of removal activities implicitly were contemplated and rejected by the choice of words such as "discharge," "pollutant," "dredge spoil," or "disposal sites," as one commenter suggested. Moreover, the treatment of incidental discharges in the 1977 Act helps illustrate Congress' view of these types of discharges. The 404(t) exemption was necessary because Congress recognized that, absent an exemption, regulation of discharges "incidental to" certain