Wednesday,
August 16, 2000
Fart IV
Department of
Defense
Department of the Army, Corps of
Engineers
33 CFR Part 323
Environmental
Protection Agency
40 CFR Part 232
Further Revisions to the Clean Water Act
Regulatory Definition of "Discharge of
Dredged Material"; Proposed Rule
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50108
Federal Register/Vol. 65, No. 159/Wednesday, August 16, 2000/Proposed Rules
DEPARTMENT OF DEFENSE
Department of tha Army, Corp* of
Engineers
33 CFR Part 323
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 232
[FRL-6852-1]
Further Revision* to the Clean Water
Act Regulatory Definition of
"Discharge of Dredged Material"
AGENCIES: U.S. Army Corps of
Engineers, Department of the Army,
DOD; and Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The U.S. Army Corps of
Engineers (Corps) and the
Environmental Protection Agency (EPA)
are publishing a proposed rule that
would amend our Clean Water Act
(CWA) section 404 regulations defining
the term "discharge of dredged
material." Today's proposal is intended
to identify types of activities that are
likely to result in a discharge of dredged
material subject to CWA section 404.
The proposal would enhance protection
of the Nation's aquatic resources,
including wetlands, by amending the
regulations to establish a rebuttable
Eresumption that mechanized
in del oaring, ditching, channelization.
in-stream mining, or other mechanized
excavation activity in waters of the
United States result in more than
incidental fallback, and thus involve a
regulable discharge of dredged material.
DATES: Written comments must be
submitted by October 16, 2000.
ADDRESSES: Written comments and
enclosures should be mailed or hand-
delivered to: Office of the Chief of
Engineers, ATTN CECW-OR (3 F73),
Further Revisions to Definition of
Discharge of Dredged Material, 441 G
Street, NW., Washington, DC 20314-
1000. Comments may also be submitted
electronically to:
CECWOR@HQ02.USACE.Army.Mil.
Electronic comments must be submitted
as a Word Perfect, Word, or ASCH file,
and avoid the use of special characters
or any form of encryption.
We request that commenters submit
any references cited in their comments.
We also request that commenters submit
an original and 2 copies of their written
comments and enclosures. Commenters
that want receipt of their comments
acknowledged should include a self-
addressed, stamped envelope. All
comments must be postmarked,
delivered by hand, or provided by e-
mail. No facsimiles (faxes) will be
accepted.
A copy of the supporting documents
for this proposed rule is available for
review at the U.S. Army Corps of
Engineers, located at 441 G Street, NW.,
Room 3F73, Washington, DC 20314-
1000. For access to docket materials,
call (202) 761-4598 between 9 a.m. and
3:30 p.m. for an appointment.
FOR FURTHER INFORMATION CONTACT: For
information on the proposed rule,
contact either Mr. Mike Smith, U.S.
Army Corps of Engineers, ATTN
CECW-OR (3F73), 441 G Street. NW.,
Washington, DC 20314-1000, phone:
(202) 761-4598, or Mr. John Lishman,
U.S. Environmental Protection Agency,
Office of Wetlands, Oceans and
Watersheds (4502F), 1200 Pennsylvania
Avenue N.W., Washington, DC 20460,
phone: (202) 260-9180.
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
Persons or entities that discharge
material dredged or excavated from
waters of the U.S. could be regulated by
today's proposed rule. The CWA
generally prohibits the discharge of
pollutants into waters of the U.S.
without a permit issued by EPA or a
State approved by EPA under section
402 of the Act, or, in tha case of dredged
or fill material, by the Corps or an
approved State under section 404 of the
Act. Today's proposal addresses the'
CWA section 404 program's definition
of "discharge of dredged material,"
which is important for determining
whether a particular discharge is subject
to regulation under CWA section 404.
Today's proposal identifies types of
activities that are likely to result in a
discharge of dredged material subject to
CWA section 404. Examples of entities
potentially regulated include:
Category
Examples of potentially regulated entities
Stale/Tribal governments or instrumentalities
Local governments or inslrumentalittes
Federal government agencies or instrumentalities .....
Industrial, commercial, or agricultural entities
Land developers and landowners
State/Tribal agencies or instrumentalities that discharge dredged mate-
rial into waters of the U.S.
Local governments or instrumentalities that discharge dredged material
into waters of the U.S.
Federal government agencies or instrumentalities that discharge
dredged material into waters of the U.S.
Industrial, commercial, or agricultural entities that discharge dredged
material into waters of the U.S.
Land developers and landowners that discharge dredged material into
waters of the U.S.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities that are
likely to be regulated by this action.
This table lists the types of entities that
wo aia now aware of that could
potentially be regulated by this action.
Other typos of entities not listed in the
table could also be regulated. To
determine whether your organization or
its activities are regulated by this action,
you should carefully examine EPA's
applicability criteria in section 230.2 of
Title 40 of the Code of Federal
Regulations, the Corps regulations at
part 323 of Title 33 of the Code of
Federal Regulations, and the preamble
discussion in Section III of today's
proposal. If you have questions
regarding the applicability of this action
to a particular entity, consult one of the
persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Background
A. Plain Language
In compliance with President
Clinton's June 1,1998, Executive
Memorandum on Plain Language in
government writing, this preamble is
written using plain language. Thus, the
use of "we" in this action refers to EPA
and the U.S. Army Corps of Engineers
(Corps), and the use of "you" refers to
the reader.
B. Litigation Involving Previous
Rulemaking
Section 404 of the CWA authorizes
the Corps (or a State with an approved
section 404 permitting program) to issue
permits for the discharge of dredged or
fill material into waters of the U.S. Two
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50109
States (New Jersey and Michigan) have
assumed the CWA section 404
permitting program. On August 25, 1993
(58 FR 45008), we issued a regulation
(the "Tulloch rule") that defined the
term "discharge of dredged material" as
including "any addition, including any
redeposit, of dredged material,
including excavated material, into
waters of the United States which is
incidental to any activity, including
mechanized landclearing, ditching,
channelization, or other excavation that
destroys or degrades waters of the
United States." The American Mining
Congress and several other trade
associations challenged the revised
definition of the term "discharge of
dredged material," and on January 23,
1997, the U.S. District Court for the
District of Columbia ruled that the
regulation exceeded our authority under
the CWA because it impermissibly
regulated "incidental fallback" of
dredged material and enjoined us from
applying or enforcing the regulation.
That ruling was affirmed on June 19,
1998, by the U.S. Court of Appeals for
the District of Columbia Circuit.
American Mining Congress v. United
States Army Corps of Engineers, 951
F.Supp. 267 (D.D.C. 1997) ("AMC'};
affd sub nom, National Mining
Association v. United States Army
Corps of Engineers, 145 F.3d 1339
(D.C.Cir. 1998) ("NAM"). Because that
decision addresses the definition of the
"discharge of dredged material," it does
not affect, nor would today's proposal
alter, the requirements governing
discharges of fill material.
The NMA court described incidental
fallback as returning "* * * dredged
material virtually to the spot from
which it came" (145 F.3d at 1403), as
well as occurring "when redeposit takes
place in substantially the same spot as
the initial removal." 145 F.3d at 1401.
The court concluded that incidental
fallback is not an "addition" of a
pollutant, and that, therefore, our
assertion of authority to regulate any
redeposit of dredged material exceeded
our authority under the CWA: "We hold
only that by asserting jurisdiction over
'any redeposit,' including incidental
fallback, the Tulloch rule outruns the
Corps's statutory authority." 145 F.3d at
1405 (emphasis in original).
Information from our District and
Regional offices and the States, included
in the administrative record, indicates
that since the District Court decision,
upwards of 20,000 acres of wetlands
were subject to ditching and more than
150 miles of streams channelized
without undergoing section 404
environmental review or mitigation.
Losses on this scale carry the potential
for increased flooding or runoff and
harm to downstream property, pollution
of streams and rivers, degradation of
water quality, and loss of aquatic
habitat. In comparison, wetlands
activities taking place under section 404
permitting are subject to careful review
in order to avoid and minimize impacts,
and unavoidable losses are subject to
mitigation in order to compensate for
the loss of wetlands functions and
values. In fiscal year 1999,
approximately 21,500 acres of permitted
wetlands losses took place, but these
were offset by approximately 46,000
acres of compensatory mitigation.
The losses due to ditching and stream
channelization reflect best available
estimates using information from EPA
Regional offices, Corps District Offices, ,
and the States. Given that the activities
causing such losses take place without
review under the CWA section 404
permit program and are not
systematically reported or tracked, we
believe that these numbers are likely to
be under-estiinates. We invite the public
to submit further relevant information,
which should be sent to the address
specified in the ADDRESSES section of
this preamble.
C. Rulemaking To Respond to NMA
Decision
On May 10, 1999, we issued a final
rule modifying our definition of
"discharge of dredged material" in order
to respond to the Court of Appeals"
holding in NMA, and to ensure
compliance with the District Court's
injunction (64 FR 25120). That rule
made those changes necessary to
conform the regulations to the Court's
decision, primarily by modifying the
definition of "discharge of dredged
material" to expressly exclude
regulation of "incidental fallback." As
explained in the preamble to that
rulemaking, our determination of
whether a particular redeposit of
dredged material in waters of the U.S.
requires a section 404 permit would be
done on a case-by-case basis, consistent
with our CWA authorities and
governing case law.
The preamble to our May 10, 1999,
rulemaking stated that we would be
undertaking additional notice and
comment rulemaking in furtherance of
the CWA's objective to "restore and
maintain the chemical, physical, and
biological integrity of the Nation's
waters." The NMA Court did not find
that all redeposits are unregulable, and
recognized that redeposits at various
distances from the point of removal are
properly the subject of regulation under
the CWA. The Court also noted that the
CWA "sets out no bright line between
incidental fallback on the one hand and
regulable redeposits on the other" and
that "a reasoned attempt to draw such
a line would merit considerable
deference." (145 F.3d at 1405).
Since the NMA decision, there has
been confusion around the country as to
what activities are likely to result in
regulable discharges of dredged
material. Today's proposal would
establish a rebuttable presumption that
mechanized landclearing, ditching,
channelization, in-stream mining, or
other mechanized excavation activity in
waters of the U.S. will result in
regulable discharges of dredged
material. Based on our experience with
dredging and excavation activities,
including the administrative record
underlying the Tulloch rule, and as
explained further in section HLB. of
today's preamble, the nature of these
activities and the types of equipment
used will by their very nature produce
discharges of dredged material unless
specialized and sophisticated
techniques and equipment are used to
ensure that only incidental fallback will
result.
The agencies are concerned that
without this additional rulemaking,
unregulated discharges consisting of
more than incidental fallback may
continue to occur and result in large-
scale destruction of wetlands and
degradation of many miles of streams
and other waters of the U.S. Such
wetlands loss and water body
degradation have the potential to result
in increased flooding or runoff, harm to
downstream people and property,
pollution of lakes, rivers and streams,
destruction of commercial fisheries,
closures of shellfish beds, diminution
and degradation of drinking water
supplies, and loss of wildlife habitat.
This proposed rulemaking will assist in •
implementing the CWA's express
mandate to regulate the discharge of
dredged material and to serve
Congress's intent to "restore and
maintain the chemical, physical, and
biological integrity of the Nation's
waters." This proposal also will help in
achieving greater consistency in the
application of section 404 of the CWA.
D. Overview of Relevant Case Law
As the NMA Court and other judicial
decisions recognize, the redeposit of
dredged material "some distance" from
the point of removal—including the
distance from a ditch to the edge of a
ditch—constitutes a regulable redeposit.
NMA, 145 F.3d at 1407 (redeposit at
"some distance" from the point of
removal is within the "pre-Tulloch
core"); United States v. Deaton, No. 98—
2256 (4th Cir. 2000) slip op. at 6-10
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(upholding regulation of sidocasting);
United States v. M.C.C. of Florida, 722
F.2d 1501 (llth Cir. 1985), vacated on
othar grounds, 481 U.S. 1034 (1987),
roadoptod in relevant part on remand,
848 F.2d 1133 (llth Cir. 1988)
(radeposit of river bottom sediments on
adjacent sea grass beds is an
"addition").
Indeed, because dredged material by
definition is material that is dredged or
excavated from waters of the U.S. (see,
33 CFR 323.2(c); 40 CFR 232.2), the
discharge of dredged material is by its
very nature a redeposit of such material.
As the Fifth Circuit observed in
Avoyelles: "No one has argued here that
the materials must come from an
external source in order to constitute a
discharge necessitating a Section 404
permit, nor would we expect them to,
since Section 404 refers to 'dredged1 or
'fill'material. * * * '[DJredged1
material is by definition material that
comes from the water itself. A
requirement that all pollutants must
come from outside sources would
effectively remove the dredge-and-fill
provision from the statute." 715 F.2d at
924 n. 43. See also, Deaton, at 12.
Likewise, Avoyelles recognized with
respect to mechanized landclearing that
"the term 'discharge' covers the
rodepositing of materials taken from the
wetlands" Avoyelles Sportsmen's
League v. Marsh, 715 F.2d 897 at 923
(5th Cir. 1983); and for backfilling of
trenches with the excavated material
(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 85 (2d Cir. 1999); Iroquois Gas
Transmission System v. FERC, 145 F.3d
398, 402 (2nd Cir. 1998); see, Slinger
Drainage Inc., CWA Appeal No. 98-10
(EPA Environmental Appeals Board
(EAB) decision holding that backfilling
by a Hoes trenching machine is a
regulable discharge of dredged material,
not incidental fallback)); see also,
Rybachek v. EPA, 904 F.2d 1276 (9th
Cir. 1990) (removal of dirt and gravel
from a slreambsd and its subsequent
redeposit in the waterway after
segregation of minerals is an "addition
of a pollutant" under the CWA subject
to EPA's section 402 regulatory
authority).
Courts have similarly recognized that
sidocasting (the piling of excavated dirt
on the edge of a ditch or elsewhere in
a wetland or other water of the U.S.) has
long been a discharge regulated under
CWA section 404. NMA, 145 F.3d at
1407 (D.C. Cir. 1998) (noting that the
Corps has always regulated
"sidecasting"); see also, 58 FR 45,008,
45,013 (Aug. 25,1993) (noting that
sidecasting has "always been regulated
under Section 404.").
The most recent judicial decision
reaffirming that sidecasting is a
regulable discharge of a pollutant
subject to CWA section 404 is United
States v. Deaton, No. 98-2256 (4th Cir.
2000). That case involved use of a
backhoe, a front-end track loader, and a
bulldozer to dig a 1,240 foot ditch that
intersected non-tidal wetlands in an
effort to drain them, with the contractor
piling the excavated dirt on either side
of the ditch. The government filed a
civil complaint alleging that the Deatons
had violated the CWA by discharging
the material excavated from the ditch
into a wetland without a CWA section
404 permit.
Subsequent to the filing of that
complaint, however, the Fourth Circuit
issued a decision in another case,
United States v. Wilson, 133 F.3d 251
(4th Cir. 1997), in which a divided
panel considered, among other issues,
whether sidecasting was a regulable
discharge. One judge concluded that
sidecasting did not constitute the
discharge of a pollutant under the CWA,
one judge concluded that it did, and one
judge concurred in the judgment
without reaching the sidecasting
question. After the Wilson decision was
issued, the District Court in the Deaton
case entered an order on June 23,1998,
noting that although it agreed with the
judge in Wilson who concluded that
sidecasting is a regulable discharge (see
Wilson, 133 F.3d at 266-75 (op. of
Payne, J.)), the Court predicted that the
Fourth Circuit would adopt the
reasoning of the judge who concluded
that it is not (see Wilson, 133 F.3d at
258-60 (op. of Niemeyer, J.)). Following
an order granting summary judgment for
the Deatons, the government appealed
to the Fourth Circuit.
On appeal, a unanimous panel of the
Fourth Circuit reversed the District
Court decision, holding that sidecasting
is the discharge of a pollutant that
violates the CWA when conducted
without a permit. In the Deaton case,
the defendants sought to use the NMA
decision to argue that "(b)ecause
sidecasting results in no net increase in
the amount of material present in the
wetland * * * it does not involve the
'addition' (or discharge) of a pollutant."
Deaton at 12. The Fourth Circuit,
however, specifically rejected this
argument, determining that:
Contrary to what the Deatons suggest, the
statute does not prohibit the addition of
material; it prohibits "the addition of any
pollutant." The idea that there could be an
addition of a pollutant without an addition
of material seems to us entirely
unremarkable, at least when an activity
transforms some material from a
nonpollutant into a pollutant, as occurred
here. In the course of digging a ditch across
the Deaton property, the contractor removed
earth and vegetable matter from the wetland.
Once it was removed, that material became
"dredged spoil." a statutory pollutant and a
type of material that up until then was not
present on the Deaton property. It is of no
consequence that what is now dredged spoil
was previously present on the same property
in the less threatening form of dirt and
vegetation in an undisturbed state. What is
important is that once that material was
excavated from the wetland, its redeposit in
that same wetland added a pollutant where
none had been before. See 33 U.S.C. sections
1362 (6), (12). Thus. * " ' sidecasting adds
a pollutant that was not present before.
Deaton at 12-13.
In reaching this conclusion, the
Fourth Circuit also found that the
adverse effects of redeposits:
[alre no less harmful when the dredged
spoil is radeposited in the same wetland from
which it was excavated. The effects on
hydrology and the environment are the same.
Surely Congress would not have used the
word "addition" (in "addition of any
pollutant") to prohibit the discharge of
dredged spoil in a wetland, while intending
to prohibit such pollution only when the
dredged material cornea from outside the
wetland. In reaching this conclusion, our
understanding of the word "addition" is the
same as that of nearly every other circuit to
consider the question. Deaton at 18 (citations
omitted).
Backfilling, which involves the
placement of a substantial amount of
excavated material back into the trench,
ditch or hole from which it was
excavated, has also been found to be a
regulable discharge by the courts. For
example, backfilling occurs when a
trench is dug in a wetland and the
dredged material is then pushed back
into the trench from which it came.
Such substantial redeposits of dredged
material into the removal site have been
found to constitute regulable discharges
under CWA section 404. 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 85 (2d Cir. 1999) (backfilling into
ditch is properly subject to section 404);
see, Iroquois Gas Transmission System
v. FERC, 145 F.3d 398 at 402 (2nd Cir.
1998); see also, Slinger Drainage Inc.,
CWA Appeal No. 98-10 (EPA EAB
decision holding that near simultaneous
cutting of trench and backfilling by a
Hoes trenching machine is a regulable
discharge of dredged material, and not
incidental fallback). Similarly, when a
bulldozer blade pushes wetland soils
and vegetation and redeposits these
materials into piles in a water of the
U.S., a regulable discharge occurs.
Avoyelles, supra. Such a discharge may
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result even when material is temporarily
stockpiled. United States v. Bay-
Houston Towing Company, No. 98-
73252 (E.D. Mich. 2000) at 8 -9 (peat
harvesting that involves spreading of
sidecast bog material for future harvest
for a period of time varying from a few-
hours to a few days or more is more
than mere "incidental fallback"); see
also, United States v. Bay-Houston
Towing Company, 33 F.Supp.2d 596,
606—607 (E.D. Mich. 1999) (denial of
motion for summary judgment).
m. Today's Proposed Rule
A. Summary
In order to enhance environmental
protection and help ensure that
regulable discharges are subject to
section 404 in a manner consistent with
the NMA and other judicial decisions,
we have undertaken today's proposed
rulemaking. Today's proposed rule
would modify our definition of
"discharge of dredged material" by
establishing a rebuttable presumption
that regulable discharges result from.
certain types of activities in waters of
the U.S. In particular, the proposal
would apply the rebuttable presumption
to mechanized landclearing, ditching,
channelization, in-stream mining, or
other mechanized excavation activity in
waters of the U.S., including wetlands.
This would be done by adding a new
paragraph (2) to the definition of
"discharge of dredged material" in the
Corps" regulations at 33 CFR 323.2(d)
and in the EPA regulations at 40 CFR
232.2.
In addition, today's proposal would
remove existing paragraph 3(iii) from
the Corps' regulations at 33 CFR
323.2(d) and the counterpart EPA
regulation at 40 CFR 232.2. That
paragraph contains a "grandfather"
provision for certain activities to.be
completed by August 24, 1995, and
further provides the grandfather
provision may not extend beyond
August 25,1996. Because the provision
is now outdated, it would be deleted by
today's proposal.
B. Rebuttable Presumption of Discharge
We believe the proposed approach is
reasonable because it recognizes that, as
a general matter, the activities in
question typically are conducted in a
manner that results in the redeposit of
dredged material that constitutes the
addition of pollutants to waters of the
U.S..'The CWA broadly prohibits the
discharge, without a permit, of any
pollutant into "navigable waters." See
33 U.S.C. 1311(a). The Act defines
"discharge of a pollutant" to mean "any
addition of any pollutant to navigable
waters from any point source." 33
U.S.C. 1362(12). The definition of
pollutant specifically includes "dredge
spoil" that has been "discharged into
water." 33 U.S.C. 1362(6). As the court
in Deaton noted, "It is of no
consequence that what is now dredged
spoil was previously present on the
same property in the less threatening
form of dirt and vegetation in an
undisturbed state. What is important is
that once that material was excavated
from the wetland, its redeposit in that
same wetland added a pollutant where
none had been before. See 33 U.S.C.
1362(6), (12)." Deaton, at 12. "In
deciding to classify dredged spoil as a
pollutant, Congress determined that
plain dirt, once excavated from waters
of the U.S., could not be redeposited
into those waters without causing harm
to the environment." Deaton, at 13.
Activities that would be subject to the
rebuttable presumption typically use
mechanized equipment that redeposits
dredged material in a manner and
amount that is different from, or greater
than, incidental fallback. For example,
during mechanized landclearing,
implements are scraped along the
surface or pushed into the ground and
then moved through the soil, usually by
bulldozers or loaders. The machinery
used in mechanized landclearing
normally scrapes, picks up, moves, or
otherwise displaces debris and soil.
Brushrakes, rootrakes, chunkrakes, disc
harrows, root plows, rippers, bulldozer
plows, and many types of shearing
blades are examples of the type of
equipment used in mechanized
landclearing. Brushrake tines scrape
below the ground level to gather and
stockpile slash and loose rock.
Chunkrakes have bowl shaped blades
frequently up to two feet or more in
diameter, which cut into the ground and
fluff the soil. Disc harrows knock down,
chop and partially bury weeds, brush,
and small saplings by using concave
discs, two feet or more in diameter with
sharp scalloped edges. Rootrakes
remove roots and stumps by use of a
fork-like blade pushed through the soil.
Tractor-mounted shearing blades, which
can weigh up to several thousand
pounds, move large amounts of debris,
soil, and roots when dragged along the
surface of the ground. Rippers and deep
plows are pulled along below the soil
surface to break up hard pans or other
stiff subsoil. The arm which attaches
them to the bulldozer or loader also
drags through the ground, moving soil
aside. Where the disc, tine, or rake
scrapes or penetrates the ground, soil is
displaced in front of the machine and
come to rest in a new location.
Use of equipment such as bulldozers
and graders in mechanized landclearing
typically moves substantial amounts of
soil beyond the spot of removal and
within waters of the U.S. For example,
when a bulldozer is operated in a
wetland, wetland soils are pushed along
by the blade of the bulldozer and are •
redeposited at various points beyond
the spot of removal. When mechanized
equipment, such as graders or
bulldozers, are used to level or grade a
wetland, wetland soils are pushed by
the blades and redeposited elsewhere in
the wetland. These are regulable
discharges of dredged material.
Avoyelles, supra.
Other types of mechanized
landclearing equipment can
substantially disturb and relocate soil
and sediments. Tree pushers and tree
splitters, for instance, normally uproot
trees and redistribute soil. A tree pusher
uses a bar mounted to the front of a
bulldozer or loader while a tree splitter
uses a V-shaped blade which is usually
about 18 to 20 feet in length. A tree
pusher or tree splitter knocks the tree
down and in so doing rips the roots out
of the ground. Any roots remaining are
then typically removed from the ground
by the bulldozer's blade.
We also recognize that not all
equipment used to remove trees disturbs
root systems, or otherwise causes a
discharge of dredged material. Some
tree shears or tree pinchers, for example,
cut vegetation above the ground while
leaving the soils and roots intact, and,
as recognized by the existing regulations
(33 CFR 323.2(d)(2)(ii) and 40 CFR
232.2), this does not result in a
discharge of dredged material.
During excavation, material in either
a solid or semi-solid form is removed
from the waters of the U.S., and, unless
highly specialized techniques are used,
is typically redeposited in areas of
waters of the U.S. beyond the
excavation site. Most ditching and
channelization activities use
mechanized equipment of some type
such as backhoes, bulldozers, dippers,
or bucket dredges. A backhoe, a hoe-
type or pull-type shovel attached to the
back of a front loader, shovels and then
lifts soil or sediments from waters of the
U.S. It is often used during the
construction of ditches or for stream
channelization projects. A dipper and
bucket dredge operate at the end of a
boom attached to a crane or other
vehicle. Buckets are suspended from a
cable and dippers are fixed directly to
the boom. Typically a crane drops the
bucket into the soil or through the water
column to the bottom. The bucket is
filled with soil or sediments and lifted
from the water or off the ground and
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dropped or sidecast on adjacent mounds
or placed directly into vehicles and
moved to another disposal site.
Bucket dredging for ditching and
channelization projects typically is done
with a deadline or other equipment of
this kind. They operate by dropping the
bucket into the soil or sediment and
then dragging it through the soil or
sediment until it is filled. In many
stream channelization projects,
bulldozers push sediments, including
cobble, gravel, and sand, from a
particular place in the stream to another
location. The bulldozer blade is lowered
into the bottom of the stream and moved
forward, which pushes sediment to
another location in the stream or to an
upland area. Because of the soil
movement and relocation of material,
the use of bulldozers, deadlines, and
backhoes, or other equipment of this
kind will almost always result in
discharges to waters of the U.S. For
example, when a deadline or backhoe
gathers dredged material, it displaces
and redeposits soils and sediments to
various distances from the initial
excavation point. This type of
displacement and redeposition also
occurs as a bulldozer pushes sediments
during a stream channelization project.
The mechanized equipment used for
excavation and channelization activities
typically results in suspension and
distribution of material into the water
column where it raises turbidity levels
and may release contaminants into the
water column. The result is that toxics,
metals and other pollutants that were
buried in sediment, held by anaerobic
soils, or taken up by submerged aquatic
vegetation, can be released and
distributed in the water column and
become available to fish and other
aquatic life and degrade water quality.
In addition, the dredged material
suspended in the water column can be
carried far downstream from the
excavation point by river, stream, ditch,
or wetland current before it settles out.
Wetlands perform a vital role in the
hydrologic cycle by trapping sediment
and toxic and nontoxic pollutants before
discharging the water to rivers, streams
or other water bodies. Deaton at 13; U.S.
v. Riverside Bayview Homes, 474 U.S.
121 (1985) at 133-135; Office of
Technology Assessment, U.S. Congress.
1984. Wetlands: Their Use and
Regulation, at 48-50 (hereafter referred
to as "OTA"). Over time, many of these
pollutants decompose, degrade or are
absorbed by wetland vegetation. Deaton
at 13; OTA Report at 48-49. A number
of conditions allow wetland soils to
immobilize trace and toxic metals,
including an anaerobic reducing
environment, neutral pH levels, and the
presence of organic matter. W.J. Mitsch
and J.G. Gosselink. 1986. Wetlands, at
chapter 5. Gambrel, R.P. 1994. "Trace
and Toxic Metals in Wetlands: A
Review." Journal of Environmental
Quality 23: 883-891, 883. Anaerobic
conditions occur when wetland soils are
saturated by water. This is also true of
lake, river, and stream bottoms. As
available dissolved oxygen is consumed
by microbial respiration in the soil,
microbes use oxidized materials that
offer alternate electron acceptors, such
as nitrate, ferric iron, manganic
manganese, and sulfate sulfur. This
helps immobilize metals in wetland
soils. Anaerobic bacterial action can
also treat some toxics. For example,
mercury can, under anaerobic
conditions, be mediated in a wetland by
sulfate reducing bacteria. C.H. Driscoll,
J. Holsapple, C.L. Schofield and R
Munson. 1998. "The Chemistry and
Transport of Mercury in a Small
Wetland in the Adirondack Region of
New York, USA." Biogeochemistry 40:
137-146. (For an additional discussion
of factors affecting bioavailability of
contaminants in sediment, see, U.S.
Army Corps of Engineers, Waterways
Experiment Station. 1991.
Miscellaneous Paper D-91-2, Assessing
Bioaccumulation in Aquatic Organisms
Exposed to Contaminated Sediments).
Wetland plants help attenuate the
flow of surface waters and cause metal-
contaminated particles to settle into
sediment. The rhizomes and roots of the
plants stabilize the wetland bottom,
helping to transform it into a sink for
toxics and contaminated sediment. A.S.
Mungur, R.B.E. Shutes, D.M. Revitt and
M.A. House. 1995. "An Assessment of
Metal Removal from Highway Runoff by
a Natural Wetland." Water Science
Technology Vol. 32, No. 3, 169-175.
Water soluble metals, in particular, are
easily dissolved into water and are
readily taken up by wetland vegetation.
Gambrel at 884-885.
When a wetland system is disrupted
by activities such as excavation and the
dredged material is redeposited, the
bonds that held toxics, heavy metals,
and other pollutants can be broken, and
pollutants can become mobile. "When a
wetland is dredged, however, and the
dredged spoil is redeposited in the
water or wetland, pollutants that had
been trapped may be suddenly
released." Deaton at 13-14; OTA Report
at 49 ("Natural or manmade alterations
of the wetland caused by * * *
dredging and the like, could mobilize
large quantities of toxic materials.")
Using a backhoe to dig a ditch and
redeposit dredged material in a wetland,
for example, can resuspend pollutants,
such as toxics and heavy metals, that
were held by the wetland soils in
anaerobic conditions. Resuspending
sediment creates turbidity, and
suspended particles can settle out in
new sites in the wetland or in
downstream receiving waters. When
sediment is resuspended it becomes
biologically available again—fish and
other organisms can ingest the sediment
and heavy metals, toxics, pesticides,
and other pollutants that were formerly
trapped by the wetland. Pollutants that
were formerly immobilized in wetland
soils will be circulating in the food
chain. Moreover, pollutants in sediment
can become quite mobile when
resuspended in water and break off from
the sediment once the sediment is
resuspended in water. U.S. Army Corps
of Engineers, Waterways Experiment
Station at 24-25.
The longer the sediment is
resuspended in water, the greater the
opportunity for formerly trapped
pollutants, such as PCBs, to break away
from the sediment and enter into the
water column. F.A. DiGiano, C.T. Miller
and J.Yoon. 1993. "Predicting Release of
PCBs at Point of Dredging." Journal of
Environmental Engineering Vol. 119,
No. 1 72-87, 86. The finer particles stay
suspended in water much longer than
heavier particles of sediment. In
addition, such finer particles have a
particular affinity for contaminants (e.g.,
toxics). U.S. Army Corps of Engineers,
Waterways Experiment Station, supra,
at 23. Ingestion of metals, toxics,
pesticides, and other such pollutants
can be extremely harmful to wildlife
and humans, sometimes even in small
concentrations. U.S. Environmental
Protection Agency. 1998. National
Sediment Quality Survey (EPA 823-R-
97-006).
When excavation and redeposit of
dredged material suspends toxics,
metals, dirt and other pollutants in the
water column, suspended pollutants can
be carried downstream by river, stream,
ditch, or wetland current. When
dredged material is excavated and
redeposited in a wetland, pollutants that
were previously buried or covered over
can become exposed. When exposed to
waterflow from the wetland, the newly
exposed pollutants may be carried down
the ditch and transported to new
receiving waters or to other parts of the
wetland. Similarly, when lakes, rivers,
or streams are excavated and dredged
material redeposited, toxics, metals and
other pollutants that were buried in
sediment and held by anaerobic soils
are released to the water column and
become available to fish and other
aquatic life. The suspension and
distribution of toxics and other
pollutants in the water column degrades
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water quality. Increased turbidity can
also harm aquatic life, smothering fish
nurseries, mussels and benthic life and
killing submerged aquatic vegetation.
The current can carry suspended
sediment and dissolved pollutants
downstream. This is particularly true for
smaller particles of sediment and
dissolved chemicals and other
pollutants.
Furthermore, when dredged material
is sidecast, stockpiled, backfilled, or
otherwise redeposited, the chemical
bonds, that held pollutants in anaerobic
wetland soils or lake, river, or stream
bottoms, may be broken, releasing these
pollutants. See, Wilson, 133 F.3d at
273-74 (op. of Payne, J.) (describing
how sidecasting dredged material
threatens to release pollutants contained
in sub-surface soil). See also, Gambrel at
883-884. When soils become oxidized,
pH levels become acidic, and many
metals, particularly inorganic
compounds, change to more mobile
forms and may become bioavailable to
aquatic organisms. In addition,
sediment containing metal complexes
with large molecular-weight organic
material will also become more mobile
as organic matter is lost over time while
sitting in the sidecast or other
redeposited pile of dredged material.
See, Gambrel at 888. Furthermore,
discharging dredged spoil into a
wetland during excavation "can degrade
water quality by obstructing circulation
patterns that flush large expanses of
wetland systems, by interfering with the
filtration function of wetlands, or by
changing the aquifer recharge capability
of a wetland." 40 CFR 230.41(b).
When dredged material is
redeposited, it is exposed to aerobic
conditions, pH levels become acidic,
microbial action changes, and, over
time, its organic matter decomposes. In
other words, the conditions which
optimize the retention of trace and toxic
metals by wetland soils—an anaerobic
reducing environment, neutral pH
levels, microbial action, and organic
matter—are destroyed and toxics, heavy
metals and other pollutants become
available for transport. Thus, toxics,
heavy metals, pesticides and other
pollutants that were formerly trapped by
wetland soils can become available to
the aquatic environment.
Finally, the impacts resulting from
redeposit of dredged material are not
limited to contaminated material alone.
"Indeed, several seemingly benign
substances like rock, sand, cellar dirt,
and biological materials are specifically
designated as pollutants under the
Clean Water Act. Congress had good
reason to be concerned about the
reintroduction of these materials into
the waters of the United States,
including the wetlands that are a part of
those waters." Deaton at 13 (citation
omitted). "Even in a pristine wetland or
body of water, the discharge of dredged
spoil, rock, sand, and biological
materials threatens to increase the
amount of suspended sediment,
harming aquatic life." Deaton at 15.
Such suspension and distribution of
even clean material in the water column
can adversely affect water quality and
aquatic life due to increases in turbidity.
U.S. Environmental Protection Agency.
1999. Protocol for Developing Sediment
TMDLs, First Edition (EPA 841-B-99-
004) at 2-1. Where currents are flowing,
such as in streams and rivers,
redeposited material can be transported
downstream away from the point of
excavation before settling on the bottom.
Excavation and redeposit of material
can also result in vertical redistribution
of sediment layers by relocating
underlying soil or sediments upwards to
the top layer. This can produce
polluting effects due to physical
alteration of aquatic habitat, such as
changes to the waterbody's substrate or
its grain size distribution.
Persons proposing to conduct
activities subject to today's proposal
may rebut the presumption that a
regulable discharge of dredged material
would occur by showing that the
activity is planned and conducted so as
to result only in incidental fallback. As
we discussed in the May 10, 1999,
rulemaking, incidental fallback "returns
dredged material virtually to the spot
from which it came." NMA, 145 F.3d at
1403; see also, NMA, 145 F.3d at 1401
(incidental fallback occurs "when
redeposit takes place in substantially
the same spot as the initial removal);"
see also, AMC, 951 F. Supp. at 270
(incidental fallback is "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 it was removed.")
However, as we discussed in section
II of today's preamble, the exclusion for
incidental fallback does not alter the
well-settled doctrine, recognized in
NMA, that many redeposits of dredged
material in waters of the U.S. constitute
a discharge of dredged -material and
therefore require a section 404 permit.
See, 145 F.3d at 1405, n. 6 (recognizing
that "a redeposit could be an addition
to [a] new location and thus a
discharge"). Deciding whether the
presumption of discharge is rebutted
will involve an evaluation based on the
particular facts of each case. Persons
planning to engage in mechanized
landclearing, ditching, channelization,
in-stream mining, or other mechanized
excavation activity in waters of the U.S.
who believe they can rebut the
presumption that a regulable redeposit
would occur should be prepared to
show, if requested by the permitting
authority, that any redeposits of dredged
material in waters of the U.S. consist
only of incidental fallback, and that no
regulable discharges of dredged material
have occurred. In evaluating such a
claim, the permitting authority will
consider the nature of the equipment
and its method of operation and
whether redeposited material is
suspended in the water column so as to
release contaminants or increase
turbidity, as well as whether
downstream transportation and
relocation of redeposited dredged
material-results.
Section 404(f)(l) of the Act, added in
1977, exempts certain specified
discharges from the section 404 permit
requirement, even though they would
typically be in the form of small volume
redeposits. However, section 404 (f)(2)
further provides for their regulation
when "incidental to any activity having
as its purpose bringing an area of the"
navigable waters into a use to which it
was not previously subject, where the
flow or circulation of navigable waters
may be impaired or the reach'of such
waters be reduced." The language of
section 404(f)(2) and its legislative
history show a Congressional concern
that discharges incidental to the types of
activities specified in section 404(f)(2)
should not escape regulation under
section 404. As a result, when a
redeposit is incidental to the types of
activities specified in section 404(f)(2),
it will be subject to particularly careful
scrutiny by the agencies.
Today's proposal would state our
expectation that, absent a demonstration
to the contrary, the activities addressed
in the proposed rule typically will result
in more than incidental fallback and
thus result in regulable redeposits of
dredged material. It would not,
however, establish a new formal process
or new record keeping requirements,
and section 404 permitting and
application requirements would
continue to apply only to regulable
discharges and not to incidental
fallback. Current practice is to respond
to requests for initial determinations
regarding how or whether certain
activities in waters of the U.S. are
regulated. For example, interested
parties may provide information to the .
Corps regarding the potential
applicability of a nationwide permit in
order to determine whether they should
file an individual permit application.
Parties also may provide the Corps
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information regarding the potential
applicability of the section 404(f)
exemptions in order to determine
whether they should file a permit
application. Similarly, under today's
proposal, project proponents could
provide available information in
advance to show the project is designed
to result in only incidental fallback in
order to determine if the presumption of
a regulable discharge is rebutted. Such
information might include field notes
and still or video photography showing
that the project as executed results only
in incidental fallback.
In response to the NMA decision, we
amended our regulations on May 10,
1999, to make clear that the term
"discharge of dredged material" does
not include "incidental fallback." This
would continue to be the case under the
proposal. Under the current regulations,
the determination of whether an activity
results in a regulable discharge of
dredged material or non-regulable
"Incidental fallback" is made on a case-
by-case basis. This also would continue
to bo the case under today's proposal.
We expect the economic effects of
today's proposal to be small. It would
not alter or enlarge section 404 program
jurisdiction and therefore would not
affect a discharger's obligation to obtain
a section 404 permit for any discharge
of dredged material into waters of the
U.S. Rather, the proposed rule would
identify what types of activities are
likely to give rise to an obligation to
obtain such a permit under the
definition of "discharge of dredged
material" contained in our existing
regulations. Under the proposal, project
proponents may rebut the presumption
of discharge, if requested by the
permitting authority, by demonstrating
the activity was designed and
conducted to avoid regulable
discharges. They also may ask the
permitting authority for an advance
determination on whether the
presumption of a regulable discharge is
rebutted for their project. Because the
. proposal would not change program
jurisdiction, continues to provide that
incidental fallback is not subject to
regulation, and does not establish new
procedures or record keeping
requirements, we believe that the
economic effects of today's proposal
would be small.
IV. Other Federal Statutory and
Regulatory Authorities
Other relevant Federal statutory and
regulatory authorities include section 10
of the Rivers and Harbors Act of 1899,
as well as section 402 of the CWA.
Those authorities are unaffected by the
decision, and nothing in today's
proposal is intended to alter their
potential applicability to activities
addressed by today's proposal.
Section 10 of the Rivers and Harbors
Act generally requires a' permit from the
Corps "for structures and/or work in or
affecting navigable waters of the United
States." 33 CFR 322.3(a). "Navigable
waters of the United States" generally
consist of the territorial sea, tidal
waters, other waters used (now or in the
past), or reasonably susceptible to use,
in carrying goods in interstate
commerce (see 33 CFR part 329 for a
complete definition of "navigable
waters of the United States."). In
contrast, the CWA's geographic reach
extends to the maximum extent
allowable under the Commerce Clause,
reflecting a Congressional intent that it
"be given the broadest possible
constitutional interpretation." S. Rept.
1236, 92d Cong., 2d Sess. 144 (1972)
(see 33 CFR 328.3 and 40 CFR 230.3(s)
for a complete definition of waters of
the U.S. which are subject to the CWA).
However, because section 10 applies to
structures or work in or affecting
"navigable waters of the United States,"
activities such as ditching or
channelization work in "navigable
waters of the United States," or affecting
their navigable capacity, is subject to
regulation under section 10 of the Rivers
and Harbors Act regardless of whether
they result in a "discharge of dredged
material." For further information on
potential applicability of section .10 of
the Rivers and Harbor Act, project
proponents should contact their local
Corps District office. Addresses and
telephone numbers for Corps District
offices can be obtained from the Corps
Regulatory Homepage at http://
www.usace.army.mil/ihet/functions/
cw/cecwo/reg/district.htm. If you do not
have access to the Internet, telephone
numbers for Corps District offices can be
obtained by calling the National
Wetlands helpline at 800-832-7828.
Storm water discharges resulting from
construction activities are subject to
regulation under the CWA section 402
(National Pollutant Discharge
Elimination System or "NPDES")
permitting program. Oil November 16,
1990, EPA promulgated "Phase I" storm
water regulations (55 FR 47990) which
require, among other things, NPDES
permits for storm water discharges into
a municipal separate storm water sewer
system (MS4) or waters of the U.S. when
associated with construction activity
disturbing at least five acres of land.
This requirement also applies to
discharges from construction sites that
are less than five acres if they are part
of a larger common plan of development
or sale disturbing a total of five acres or
greater. These Phase I requirements are
currently in effect.
On December 8, 1999, EPA
promulgated additional ("Phase II")
revisions to the storm water permitting
regulations (64 FR 68721) that, among
other things, require an NPDES permit
for storm water discharges into a MS4
or waters of die U.S. when associated
with construction site activities
disturbing land equal to or greater than
one acre and less than five acres, unless
waived by the NPDES permitting
authority. Construction activity
disturbing less than one acre would also
require a permit if part of a larger
common plan of development or sale
disturbing a total of one acre or greater,
or if individually designated for permit
coverage by the NPDES permitting
authority. NPDES permitting authorities
may waive the Phase II construction
activity requirements where little or no
rainfall is expected during the period of
construction or when analysis indicates
that controls on construction site
discharges are not needed to protect
water quality. Waivers are not available
for construction activity subject to the
phase I requirements (e.g., disturbing
five acres or greater). EPA expects the
storm water permitting requirements for
Phase II construction activity to be
implemented through general permits
similar to those in place for Phase I.
NPDES permitting authorities will issue
these general permits on or before
December 9, 2002. Regulated
construction operators must apply for
permit coverage within 90 days of
general permit issuance. Further
information regarding the storm water
permitting regulations may be obtained
from EPA's website at http://
www.epa.gov/owm/sw/about/
index.htm.
V. Administrative Requirements
A. Paperwork Reduction Act
This action does not impose any new
information collection burden or alter or
establish new record keeping or
reporting requirements. Thus, this
action is not subject to the Paperwork
Reduction Act.
B. Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4, 1993), we must
determine whether the regulatory action
is "significant" and therefore subject to
review by the Office of Management and
Budget (OMB) and the requirements of
the Executive Order. The Order defines
"significant regulatory action" as one
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of S100 million or more, or
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50115
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4J Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
. Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action." As such, this action was
submitted to OMB for review. Changes
made in response to OMB suggestions or
recommendations will be documented
in the public record.
C. Executive Order 13132 (Federalism] •
Executive Order 13132, entitled
"Federalism" (64 FR 43255, August 10,
1999), requires us to develop an
accountable process to ensure
"meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications." "Policies that have
federalism implications" is defined in
the Executive Order to include
regulations that have "substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government."
Under section 6 of Executive Order
13132, we may not issue a regulation •
that has federalism implications, that
imposes substantial direct compliance
costs, and that is not required by statute,
unless the Federal government provides
the funds necessary to pay the direct
compliance costs incurred by State and
local governments, or we consult with
State and local officials early in the
process of developing the proposed
regulation. We also may not issue a
regulation that has federalism
implications and that preempts State
law, unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
This proposed rule does not have
federalism implications. As explained
in section III, the proposal would not
alter or enlarge section 404 program
jurisdiction and therefore would not
affect a discharger's (including State
dischargers) obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the proposed rule would
identify what types of activities are
likely to give rise to an obligation to
obtain such a permit under the
definition of "discharge of dredged
material" contained in our existing
regulations. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Thus, the
requirements of section 6 of the
Executive Order do not apply to this
rule.
D. Regulatory Flexibility Act (RFA) as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 etseq,
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to notice
and comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations and small
governmental jurisdictions.
For purposes of assessing the impacts
of today's rule on small entities, a small
entity is defined as: (1) A small business
based on SBA size standards; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district, or special district with a
population of less than 50,000; and (3)
a small organization that is any not-for-
profit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today's proposed rule on
small entities, we certify that this action
will not have a signficant economic
impact on a substantial number of small
entities. As explained in section HI, the
proposal would not alter or enlarge
section 404 program jurisdiction and
therefore would not change any
discharger's obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the proposed rule would
identify what types of activities are
likely to give rise to an obligation to
obtain such a permit under the existing
regulatory program. Moreover, we also
do not anticipate that the information-
sharing contemplated for seeking to
rebut the presumption under today's
proposal would result in significant
costs.
We continue to be interested in the
potential impacts of the rule on small
entities and welcome comments on
issues related to such impacts.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104—4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result'in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
SlOO million or more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most costteffective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
We have determined that this rule
does not contain a Federal mandate that
may result in expenditures of SlOO
million or more for State, local, and
Tribal governments, in the aggregate, or
the private sector in any one year. As
explained in section in, the proposal
would not alter or enlarge section 404
program jurisdiction and therefore
would not affect a discharger's
obligation to obtain a section 404 permit
for any discharge of dredged material
into waters of the U.S. Rather, the
proposed rule would identify what
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50116
Federal Register/Vol. 65, No. 159/Wednesday, August 16, 2000/Proposed Rules
typos of activities are likely to give rise
to an obligation to obtain such a permit
under the definition of "discharge of
dredged material" contained in our
existing regulations. Thus, today's rule
is not subject to the requirements of
sections 202 and 205 of the UMRA. For
the same reasons, we have determined
that this rule contains no regulatory
requirements that might significantly or
uniquely affect small governments.
Thus, today's rule is not subject to the
requirements of section 203 of UMRA.
F. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law
104-113, section 12(d) (15 U.S.C. 272
note), directs us to use voluntary
consensus standards in our regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
tost methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
us to provide Congress, through OMB,
explanations when we decide not to use
available and applicable voluntary
consensus standards.
This proposed rulemaking does not
involvo technical standards. Therefore,
wo are not considering the use of any
voluntary consensus standards. We
welcome comments on this aspect of the
proposed rulemaking and specifically,
invite the public to identify potential
applicable voluntary consensus
standards and to explain why such
standards should be used in this
regulation.
G. Executive Order 13045
Executive Order 13045, entitled
Protection of Children From
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997),
applies to any rule that: (1) is
determined to be "economically
significant" as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
wo have reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
wo must evaluate the environmental
health or safety effects of the planned
rule on children, and explain why the
planned regulation is preferable to other
potentially effective and reasonably
feasible alternatives that we considered.
This regulation is not subject to
Executive Order 13045 because it is not
an economically significant regulatory
action as defined by Executive Order
12866. As explained in section III, the
proposal would not alter or enlarge
section 404 program jurisdiction and
therefore would not affect a discharger's
obligation to obtain a section 404 permit
for any discharge of dredged material
into waters of the U.S. Rather, the
proposed rule would identify what
types of activities are likely to give rise
to an obligation to obtain such a permit
under the definition of "discharge of
dredged material" contained in our
existing regulations. Furthermore, it
does not concern an environmental
health or safety risk that we have reason
to believe may have a disproportionate
effect on children.
H. Executive Order 13084
Under Executive Order 13084, we
may not issue a regulation that is not
required by statute, that significantly or
uniquely affects the communities of
Indian Tribal governments, and that
imposes substantial direct compliance
costs on those communities, unless the
Federal government provides the funds
necessary to pay the direct compliance
cost incurred by the Tribal governments,
or we consult with those governments.
If we comply by consulting. Executive
Order 13084 requires us to provide
OMB, in a separately identified section
of the preamble to the rule, a
description of the extent of our prior
consultation with representatives of
affected Tribal governments, a summary
of the nature of their concerns, and a
statement supporting the need to issue
the regulation. In addition, Executive
Order 13084 requires us to develop an
effective process permitting elected
officials and other representatives of
Indian Tribal governments "to provide
meaningful and timely input in the
development of regulatory policies on
matters that significantly or uniquely
affect their communities."
Today's rule does not significantly or
uniquely affect the communities of
Indian Tribal governments, nor does it
impose significant compliance costs on
them. As explained in section III, the
proposal would not alter or enlarge
section 404 program jurisdiction and
therefore would not affect a discharger's
obligation to obtain a section 404 permit
for any discharge of dredged material
into waters of the U.S. Rather, the
proposed rule would identify what
types of activities are likely to give rise
to an obligation to obtain such a permit
under the definition of "discharge of
dredged material" contained in our
existing regulations. Accordingly, the
requirements of section 3(b) of
Executive Order 13084 do not apply to
this rule.
/. Plain Language
Executive Order 12866 and the
President's memorandum of June 1,
1998, require Federal government
agencies to write all rules in plain
language. We invite your comments on
ways to make this proposed rule easier
to understand. For example:
• Have we organized the material to
suit your needs?
• Are the requirements in the rule
clearly stated?
• Does the rule/preamble language
contain technical language or jargon that
isn't clear?
• Would a different format (grouping
and order of sections, use of headings,
paragraphing) make the rule/preamble
easier to understand?
• Would more (but shorter) sections
be better?
• Could we improve clarity by adding
tables, lists, or diagrams?
. ' • What else could we do to make the
rule easier to understand?
/. Environmental Documentation
As required by the National
Environmental Policy Act (NEPA), the
Corps prepares appropriate
environmental documentation for its
activities affecting the quality of the
human environment. The Corps has
made a preliminary determination that
today's proposed rule does not
constitute a major Federal action
significantly affecting the quality of the
human environment, and thus does not
require the preparation of an
Environmental Impact Statement (EIS).
Among the reasons for this conclusion
is the feet that the Corps prepares
appropriate NEPA documents, when
required, covering specific permit
situations. The implementation of the
procedures prescribed in this proposed
regulation would not authorize anyone
(e.g., any landowner or permit
applicant) to perform any work
involving regulated activities in waters
of the U.S. without first seeking and
obtaining an appropriate permit
authorization from the Corps.
Accordingly, the Corps expects to
prepare an environmental assessment
(EA) for the rule.
List of Subjects
33 CFR Part 323
Water pollution control, Waterways.
40 CFR Part 232
Environmental protection,
Intergovernmental relations, Water
pollution control.
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Federal Register/Vol. 65. No. 159/Wednesday, August 16. 2000/PTOposed Rules 50117
Corp* of Engineers
33 CFR Chapter 0
Accordingly, as set forth in the
preamble 33 CFR part 323 is proposed
to be amended as set forth below:
PART 323— {AMENDED]
1. The authority citation for part 323
continues to read as follows:
Authority: 33 U.S.C 1344.
2. Amend § 323.2 as follows:
a. In paragraph (d)(l) introductory
text, remove the words "paragraph
(d)(2)" and add, in their place, the
words "paragraph (d)(3)".
b. Redesignate paragraphs (d)(2)
through (d)(5) as paragraphs (d}(3)
through (d)(6), respectively.
c. Add new paragraph (d)(2).
d. In newly redesignated paragraph
(d)(4), in the first sentence of paragraph
(d)(4)(i) remove each time they appear
the words "paragraphs (d)(4) and (d)(5)"
and add, in their place, the words
"paragraph (d)(5) and (d)(6)", remove
paragraph (d)(4)(iii), and redesignate
paragraph (d)(4)(iv) as new paragraph
The addition reads as follows:
§323,2 Definitions.
*****
(d)
(2) A discharge of dredged material
shall be presumed to result from
mechanized landclearing, ditching,
channelization, instream mining, or
other mechanized excavation activity in
waters of the United States. This
presumption is rebutted if the party
proposing such an activity demonstrates
that only incidental fallback will result
from its activity.
* » * » *
Dated: August 9, 2000.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works),
Department of the Army.
Environmental Protection Agency
40 CFR Chapter I
Accordingly, as set forth in the
preamble 40 CFR part 232 is proposed
to be amended as set forth below:
PART 232—{AMENDED]
1. The authority citation for part 232
continues to read as follows:
Authority: 33 U.S.C 1344.
2. Amend § 232.2 as follows:
a. In paragraph (1) introductory text of
the definition of "Discharge of dredged
material", remove the words "paragraph
(2)" and add, in their place, the words
"paragraph (3)".
b. In the definition of "Discharge of
dredged material", redesignate
paragraphs (2) through (5) as paragraphs
(3) through (6), respectively.
c. In the definition of "Discharge of
dredged material", add new paragraph
(2).
d. In the first sentence of newly
redesignated paragraph (4)(i) remove
each time they appear the words
"paragraphs (4) and (5)" and add, in
their place, the words "paragraph (5)
and (6)", remove paragraph (4)(iii), and
redesignate paragraph (4)(iv) as new
paragraph (4)(iii).
The addition reads as follows":
§232.2 Definition*.
*****
Discharge of dredged material * * *
(2) A discharge of dredged material
shall be presumed to result from
mechanized landclearing, ditching,
channelization, in-stream mining, or
other mechanized excavation activity in
waters of the United States. This
presumption is rebutted if the party
proposing such an activity demonstrates
that only incidental fallback will result
from its activity.
*****
Dated: August 8, 2000.
Carol M. Browner,
Administrator,,EnvironmentaI Protection
Agency.
[FR Doc. 00-20792 Filed 8-15-00; 8:45 am|
BILLING CODE 8WO-SO-U
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