Wednesday
August 25. 1993
843Z93003
Part V
Department of
Defense
Department of the Army
Corps of Engineers
33 CFR Parts 323 and 328 .
Environmental
Protection Agency
40 CFR -Part 110,et al.
Clean Water Act Regulatory Programs;
Final
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45008 Federal Register Y Vol. 58, No. 163 / Wednesday. August 25. 1993 / Rules and Regulations
DEPARTMENT OF DEFENSE
Department of the Army
Corp* of Engineer*
33 CFR Parts 323 and 328
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part* 110,112,116,117,122,
230,232 and 401
Clean Water Act Regulatory Programs
AGENCIES: U.S. Army Corps of
Engineers, Department of the Army,
DOD; and Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The U.S. Army Corps of
Engineers (Corps) end the
Environmentel Protection Agency (EPA)
are issuing today final regulations that
implement the following actions with
regard to the Clean Water Act (CWA) •
Section 404 regulatory program: (1)
Modification of the definition of
"discharge of dredged material;" (2)
clarification of when the placement of
pilings is a discharge of fill material;
and (3) codification of the current policy
that prior converted croplands are not
waters of the United States. EPA is also
issuing conforming changes to the
definition of "waters of the United
States" and "navigable waters" in other
CWA program regulations. The first two
changes implement the settlement
agreement in Ncrth Carolina Wildlife
Federation v. Tullach, Civil No. C90-
713-CTV-5-BO (E.D.N.C. 1992).
EFFECTIVE DATE: This rule becomes
effective on (Insert 30 days from the
publication in the Federal Register].
FOR FURTHER INFORMATION CONTACT:
Mr. Michael Davis, Office of the
Assistant Secretary of the Army for Civil
Works at (703) 695-1376 or Mr. Sam
Collinson (Corps) at (202) 272-0199 or •
Mr. Gregory Peck (EPA) or Ms. Hazel
Groman (EPA) at (202) 260-7799.
SUPPLEMENTARY INFORMATION:
I. Background
On February 28,1992, the Federal
government agreed to settle a lawsuit
Brought by the North Carolina Wildlife
Federation and the National Wildlife
Federation (North Carolina Wildlife
Federation, et al. v. Tulloch, Civil No.
C90-713-OV-5-BO (E.D.N.C. 1992)) .
involving CWA Section 404 as it
pertains to certain activities in waters of
the United States. In accordance with
the settlement agreement, the Corps and
EPA proposed changes to their
regulations on June 16.1992 to clarify
that mechanized landclearing, ditching,
channelization, and other excavation
activities involve discharges of dredged
material when performed in waters of
the United States, and that these
activities would be regulated under
Section 404 of the CWA when they have
or would have the effect of destroying
or degrading waters of the United States,
including wetlands. 57 FR 26894. In
addition, the Corps and EPA agreed to
propose to incorporate into the Section
404 regulations the substantive
provisions of Corps Regulatory
Guidance Letter (RGL) 90-8 to clarify
the circumstances under which the
placement of pilings have the effect of
"fill material" and is subject to
regulation under Section 404. The
agencies stated that the proposal would
not affect, in any manner, the existing
statutory exemptions for normal
fanning, ranching, and silviculture
activities in Section 404(f)(l).
In addition to the changes proposed
in accordance with the settlement
agreement, the Corps and EPA proposed
to incorporate into the Section 404
regulations the substantive provisions of
Corps RGL 90-7 to clarify that prior
converted croplands are not waters of
the United States for purposes of the
CWA. EPA also proposed conforming
changes to the definitions of "waters of
the United States" and "navigable
waters" for all other CWA program
regulations contained in 40 CFR parts
110,112,116,117,122, and 401 to
provide consistent definitions in all
CWA program regulations.
Overall, these changes were proposed
in order to promote national
consistency, more clearly notify the
public of regulatory requirements,
ensure that the Section 404 regulatory
program is more equitable to the
regulated public, enhance the protection
of waters of the United States, and
clarify which areas in agricultural crop
production would not be regulated as
waters of the United States.
The proposed changes were published
in the Federal Register on June 16,
1992, for public comment. The
comment period closed on August 17,
1992. We received over 6,300
comments. The significant issues raised
by public comments and the changes
that have been made from the proposed
rule are discussed below.
n. General Comments on She Proposed
Rule
Several commentors raised general
1 issues with regard to the proposed rule.
These comments are addressed first
below. Comments relating to the
specific components of the rule are
addressed in the following sections of
this preamble.
Several commentors expressed
concern that the agencies had agreed to
propose these revisions as part of a
settlement agreement with plaintiffs in
the Tulloch lawsuit. These commentors
felt that this procedural posture for the
- rulemaking impaired the agencies'
ability to conduct the rulemaking
impartially and based upon a good faith
consideration of all public comments, as
required by the Administrative •
Procedure Act. The commitments the
agencies entered in the settlement of the
Tulloch case have not, in any way,
bound the agencies to roach a
predetermined outcome in this
rulemaking. The agencies agreed in the
settlement agreement to propose certain
revisions to their regulations in
exchange for the plaintiffs' agreement to
stay that litigation. The settlement
agreement in no way binds the agencies
to an outcome in the final rule, but
provides that the plaintiffs in the
lawsuit will dismiss their action if the
final rule is "substantially similar" in
language and effect as the proposal. The
agencies do not view the settlement
agreement as narrowing our discretion
in any manner to adopt a final rule that
best reflects relevant legal and policy
considerations under Section 404.
Because this rulemaking is of great
national significance to the Section 404
program, EPA and the Corps have
pursued this rulemaking based upon
careful consideration of all the policy
issues raised in the proposal and
, addressed by public comments. The
agencies would not adopt policies in
this final rule that we do not believe are
appropriate merely to avoid reinitiation
• of litigation in the Tulloch lawsuit. As
reflected by the discussion in this
preamble, the agencies have fully
considered all the public comments
received on the proposal, and we have
therefore fully complied with the
procedural requirements of the
Administrative Procedure Act
Severe} commentors recommended
that no decision on the final rule be
made until a wetland definition was
agreed upon by Congress. Two
commentors stated that the wetlands
definition was too broad and that it was
not applicable across the country.
Similarly, two commentors stated that.
because the rulemaking regarding the
wetlands delineation manual was not
yet complete, it was inappropriate to
propose changes that would expand
activities in wetlands covered under the
program, thereby increasing uncertainty
about the Federal government's
regulation of wetlands. Several
commentors were concerned about how
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Federal Register / Vol. », No. 163 / Wednesday, August 25, 1993 / Rules and Rsgoiatfons 45009
the functions and values of wetlands
would be addressed or requested that ft
wetland classification system be
developed. Some commentors requested
that no decision be made until such a
system was developed.
We do not agree that these concerns
should delay promulgation ef this rule.
With the exception of the prior
convened (PC) cropland aspect of this
rulemaking. this rule addresses the
scope of activities regulated under
Section 404. The question of what
activities result in a discharge of
dredged or fill material is distinct and
separate from the issue of what areas
constitute wetlands, or how wetlands
functions and values are considered in
the permitting process. Today's rule will
enable the Corps and EPA to make
appropriate determinations as to
whether an activity occurring in waters
.of the U.S. is subject to regulation under
Section 404, however wetlands are
defined. Therefore, there 'is no reason to
delay this rulemaking pending
completion of the delineation manual
rulemaking. With regard to the PC
cropland portion of this rule, the
agencies dc not.believe that completion
of this rulemaking should await
conclusion of the manual ruTgmatinp
The proposed revisions to the
delineation manual did not alter the
policy finding in Corps RGL 90—7 **"»<
PC cropland is not wetlands under the
Act Since the applicability of Section
404 to PC cropland is not an issue in the
delineation manual rulemaking,
delaying completion of this rule is not
warranted. In any case, EPA and the
Corps are both currently making
wetlands delineations using the 1987
Corps Manual. Corps of Engineers. •
Wetland Delineation Manual (Technical
Report 4—07-1, Department of the Army,
Corps of Engineers, Waterways
Experiment Station. Vicksburg, MS). We
believe that the guidance in that Manual
is entirely consistent with our statutory
and regulatory authorities under the
CWA.
Several commentors requested .dial
the comment period be extended. We
believe that a 60-day comment period
wcs sufficient time to provide an
opportunity for the public comment, as
reflected by the fact that we have
received over 6,300 comments on the
proposal. At least one commentor
requested that the agencies hold a
public hearing on the proposal. The
agencies hev« declined to do so. The
comments on the proposal addressed
many legal and factual issues that were
presented in great detail in written
submissions, and the agencies have
fully considered the submitted
documents in developing, the final rule.
EPA and the Corps do-act belisvt
the opportunity lor meaningful public
input or the agencies' understanding of
public comments would have been
materially advanced by the holding of a
public hearing.
Several commentors requested tfeat
the Corps districts work with local
regulatory agencies to avoid duplication
of effort. We agree and encourage
districts to develop regional general
permits to avoid duplication of effort for
those activities with, minimal impacts.
in. Reriskms to Definition of
"Discharge of Dredged Materiel 33 CFR
323.2{d) and 40 OFR 232.2{e)
We have organized the numerous
comments on the dbSuilioa of .discharge.
of dredged material into several issues.
Our discussion of the comments is.
provided below.
A. Summary of Major Issues and
C/ionges FTQEB toe Prvposol
The aspect of the roie which
engendered the most public comment
was the proposed revisions to the
definition of "discharge of dredged
material.** Many commentors supported
the proposed revisions on the grounds
that they would better achieve the goals,
of the Section 404 program, and help
ensure more equal treatment of different
types of activities that adversely impact
wetlands.
Opponents erf the changes challenged
the appropriateness of the proposed rule
on both legal and factual grounds. In
their legal arguments, many
commentors contended that the
proposal constituted a change in the
Corps' longstanding approach to
regulating landclearrng and excavation
activities, and that the agencies had
failed to explain adequately tire reasons
for changing the existing approach, as
required by the Administrative.
Procedure Act. Commentors also,
contended that EPA and the- Corps
lacked the authority under the CWA to ,
regulate incidental dischargee
associated with mechanized
landclearing. ditching, channelization
and other excavation on the grounds
that such incidental discharges do not
constitute an "addition" of "dredged
material" to waters of the U.S. within
the meaning of the Act These
commentors also contended that the
proposed rule would impermisslhly
regulate "activities" rather than
"discharges," something they argued
was beyond the agencies' jurisdiction
under the statute. Other commentors
argued that the proposed rule's
establishment of a presumption that
mechanized landclearing, ditching,
channelization and other excavation
d
d
destroy or degrade wetlands was
contrary to the requirements of the
CWA.
Factual contentions raised by
commentors centered on objections to
the finding in the proposed rule that
mechanized landciaariag, ditching,
channelization and other excavation
always result in a discharge of dredg
material. Some commentors conten
thai the agencies h«d failed to compile
an adequate factual record to support
this finding, and a few commentars
discussed activities which they believed
did not result in a discharge. Some
commentors also objected to the
rebuttable presumption in the proposed
rule that mechanized landclsaring,
ditching, channelization and other
excavation destroy or degrade wetlands
or other waters of the United States.
Commentors suggested specific
activities that they believed should be
excluded from the regulation on ma
grounds that they did not cause such
effects. Concerns were also raised in
public comments that the term
"degrade" was not adequately defined
by the agencies.
Based upon public comments, the
agencies have made certain changes to
the language in the regulation defuriirg
"discharge of dredged material."
However, the basic thrust of the
proposal had net changed. Under the
final rule, any addition or redeposition
of dredged material associated wfrh any
activity, including mechanized
landclearing, ditching, channelization
and other excavation, that destroys or
degrades waters of the United States
requires a Section 404 permit.
The agencies have modified some of
the language and structure of the final
rule to improve clarity, since some'
public comments found the proposed
•rule language hard to follow. ID -
response to public comments, we have
decided to include definitions of the
terms "destroy" and "degrade" in the
final rule. These changes are discussed
in section D.I, below.
In response to public comments, the
agencies have deleted the irrebuttable
presumption in the proposed rule that
all mechanized landclearing, ditching.
rhnnnofiTjUjrvn anrf Other excavation
result in a discharge of dredged
material. This change is discussed
further in section C. below.
The agencies have modified the
structure of the final rule to provide that
any addition, including redeposit of
dredged material associated with any
activity, including mechanized
landclaaring, ditching, cfe"^
and other excavation , constitutes a
discharge of dredged material. The
rule states, however, that a Section 4.04
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45010 Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations
permit is not required for an activity
that would not destroy or degrade
waters of the U.S. because it would have
only a de minimis effect on such waters.
Under the final rule, mechanized
landclearing, ditching, channelization
and other excavation activities resulting
in a redeposition of dredged material
associated with a discharge of dredged
material require a Section 404 permit
unless the discharger demonstrates to
the satisfaction of the Corps, or EPA as
appropriate, prior to the discharge, that
the activity will not have such an effect.
Under the final rule, the discharger
bears the burden of demonstrating that
its mechanized landclearing, ditching,
channelization and other excavation
activity will not destroy or degrade
waters of the United States.
B. Comments on Agencies' Legal
Authority To Promulgate This
Regulation
Several commentors argued that EPA
and the Corps lack legal authority under
the Clean Water Act to issue the
proposed regulation. Each of the bases
for commentors' assertion is addressed
bolow,
1. Definition of "Dredged Material"
Several commentors argued that the
term "dredged material" has a narrow
and specific meaning as used by
Congress in the Clean Water Act, end
that Congress never intended incidental
discharges associated with landclearing,
ditching, channelization and other
excavation to be regulated as dredged
material under Section 404.
These commentors cited a dictionary
definition of the verb "to dredge" as
meaning "to gather and bring up with a
dredge, as oysters; to clear out or deepen
•with a dredge, as a channel," and the
definition of the noun "dredge" as "a
contrivance for gathering objects or
material from the bed of a river, lake or
harbor, by dragging along the bottom
•" " *. "New Webster's Dictionary of
the English Language 301 (1984).
According to these commentors,
therefore, the term "dredged material"
in Section 404 is limited to material
taken from the bottom of a harbor, river
or channel and cannot be construed as
extending to material redeposited in the
course of activities taking place in other
waters of the United States, such as
wetlands. While these commentors
argued that the meaning of the statutory
language was so clear that recourse to
the legislative history was not
necessary, they contended that the
legislative history of the 1972
Amendments of the Clean Water Act
also supports their view.
EPA and the Corps believe that these
comments are unfounded, for several
reasons. First, these comments are in
fact not relevant to this rulemaking, for
they do not address the revisions the
agencies are making to the definition of
the term "discharge of dredged
material." Rather, these comments
challenge, in effect, the agencies'
definition of the term "dredged
material" which includes "any material
dredged or excavated from waters of the
U.S." (see 40 CFR 232.2(g) and 33 CFR
323.2(c)). Presumably the commentors
believe that this definition should have
been revised so that it would be limited
to material excavated from waterbodies
such as harbors, rivers and channels.
. However, EPA and the Corps have not
proposed to revise this longstanding
definition in any respect in this
rulemaking, and this comment is
therefore not relevant to the proposal on
which we solicited public comment.
Even if these comments were relevant
to this rulemaking, however, EPA and
the Corps disagree with the commentors
that the statutory term "dredged
material" was expressly limited by
Congress to mean material dredged from
the bottom of waterways such as lakes,
rivers or channels. While the "narrow"
and "specific" definition of this term
favored by these commentors appears in
the Webster's dictionary, it is not
contained in any provision of the Clean
Water Act. Congress therefore left to the
agencies administering Section 404 the
discretion to define'this term. Since
regulations were first promulgated
implementing Section 404, the Corps
has interpreted the term "dredged
material" to mean any material
excavated from waters subject to the full
jurisdictional reach of the CWA (see 39
FR12119, April 3.1974), and the
current language in the agencies'
definition has been in existence since
1977 (see 42 FR 37145, July 19.1977).
This longstanding definition of the term
"dredged material" is a straightforward
and reasonable reading of the statutory
• language used by Congress.
The commentors' approach to .
defining dredged material, in contrast
would draw arbitrary distinctions in
how the CWA regulates identical types
of material based upon whether the
waterbody from which it was excavated
met some vague standard of wetness
and water depth (i.e., material excavated
from the bottom of a "lake" would
qualify as dredged material but material
excavated from & "drier" water such as
a saturated wetland would not). Such
distinctions are without any support in
the language or structure of the CWA.
Because the commentors' approach
does not reasonably reflect the structure
of the Act, their suggested reading of the
term "dredged material" would lead to
anomalous results that We believe could
not have been intended by Congress. For,
example, under their scenario, material
excavated from a saturated wetland
presumably would not qualify as
"dredged material" under Section 404.
However, the disposal of that material
into wa ers of the U.S. would
nonetheless require a permit under the
Act, since the material, even if not
meeting the definition of "dredged
material," would in any case constitute
a "pollutant" within the meaning of the
Act (see section 502(6) of the Act,
defining pollutant to include "sand"
and "rock"). The disposal of such
material, therefore, would require a
permit under Section 402 of the Act, a
regulatory provision ill-suited for
authorizing such discharges. In our
view, it is clearly more consistent with
Congressional intent that all material
dredged from and redeposited in waters
of the U.S. be regulated under a single
regulatory achemo—Section 404 of the
CWA. Rather than draw the arbitrary
distinctions suggested by these
commentors, the agencies' definition of
the term is a straightforward and logical
interpretation of the statutory language
in Section 404 that is consistent with
the jurisdictional reach of Section 404 lo
all waters of the United States.
While the legislative history of the
1972 Amendments to the Clean Water .
Act reflects Congressional concern
regarding disposal of material dredged
from waterways to maintain navigation,
EPA and the Corps do not read that
legislative history as demonstrating
Congressional intent to limit narrowly
the agencies' discretion to define
dredged material so that it includes any
material excavated from waters of the
U.S. The agencies' longstanding
definition of this term is reasonable and
fully consistent with the language and
purposes of the Clean Water Act
2. "Addition" of Pollutants to Waters of
theU.S.
'Some commentors argued that the
activities that would be subject to this
regulation are beyond the scope of
Section 404 because they do not result
in the "addition" of pollutants to U.S.
waters, as required by the definition of
"discharge" contained in section 502(6)
of the Clean Water Act. According to
these commentors, no such "addition"
occurs when the material to be
excavated falls back into the very same
water being dredged. An "addition"
only takes place, these commontors
believe, where material is excavated
from one water of the U.S. and falls into
"another" water, "outside" the area
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Federal Register /Vol. 58, No. 163 / Wednesday. August 25, 1993 /Rules and Regulations 45011
being excavated. These commentors
died as support the decisions in
National Wildlife Federation v.
Consumers Power, 862 F.2d 580 (6th
Or. 1988); National Wildlife Federal v.
Gorsuch. 693 F.2d 156,174-75 (D.C.
Cir. 1982); and U.S. v. Lambert, 18 Env't .
Rep Gas (BNA) 1294 (M.D.F1.1981).
affd 695 F.2d 536 (llth Cir. 1983).
In Consumers Power and Go/such,
environmental groups challenged EPA's
longstanding interpretation of the CWA
that impacts on water quality and fish
caused by the operation of dams were
not covered by the CWA because the .
dams did not cause an "addition" of
pollutants. EPA's longheld view was
that impacts resulting from the passage
of water through the dam did not
constitute an '.'addition" because
pollutants did not enter the water "from
the outside world." See Gorsuch, 693
F.2d at 165. The Consumers Power and
Gorsuch courts deferred to EPA's
administrative interpretation of the
CWA and upheld it as reasonable.'
Commentors argued that these holdings
prevent EPA and the Corps from finding
that redeposition of soil incidental to
mechanized landclearing, ditching,
channelization and other excavation
constitutes an "addition" of pollutants.
We do not believe that the analysis of
the Gorsuch and Consumers Power
decisions is controlling here. These
cases did not address what constitutes
an addition of dredged material to
waters of the United States. In our view.
it would not be reasonable to require
that dredged material enter waters of the
U.S. "from the outside world" since
dredged material, by definition, is
contained in the waters themselves.
This was the conclusion of the Fifth
Circuit in Avoyelles Sportsmen's League
v. Marsh. 715 F.2d 897 (5th Or. 1983),
which addressed the applicability of the
Gorsuch case to mechanized
landclearing activities. While the court
did not rule on the question whether
those activities resulted in a discharge
of dredged material (finding that a
discharge of fill material had occurred),
the court rejected the notion that
dredged material is only regulated if it
'enters waters from the "outside world."
Since dredged material comes from the
water itself, the court concluded that
such an interpretation "would
effectively remove the dredge-and-fill
provision from the statute." 715 F.2d at
294, n.43. See also 17.S..V. Sinclair Oil
Co., 767 F.Supp. 200 (D,Mont. 1990)
(distinguishing Gorsuch and Consumers
Power cases partially on the grounds
that they were decided under the
"separate regulatory framework" of
Section 402. and holding that
redistribution of riverbed materials
constituted a "discharge" of fill
material). United States v. MCCof
Florida, Inc., 772 F.2d 1501 (llth Cir.
1985) (holding that redeposition of
seabed materials by tug-boat propellers
on adjacent sea grass beds was an
• "addition" of dredged, spoil).
Some commentors suggested that the
appropriate test in this context should
be whether dredged material is moved
from "one place to another" or "from
one water to another." If the material is
not moved in this manner, these
commentors argued, it does not trigger
Section 404. The agencies do not believe
that such a vague test would be a
meaningful or .appropriate one to adopt
in this rule. If dredged material must be
"moved" from one "location" to another
in order to trigger Section 404, the
question arises as to how far the.
material must be moved. The agencies
see a strong potential for drawing
arbitrary distinctions among activities
that may be identical in terms of the
amount of soil redeposited and their
effects on the aquatic ecosystem, but
differ only in terms of the distance the
soil is moved. EPA and the Corps
certainly do not view such a distinction
as legally compelled by the Clean Water
Act
Commentors also cited as support for
their position the decision of the district
court in U.S. v. Lambert, Env't Rep.
Cases (BNA) 1294 (M,D.Fla. 1981), affd,
695 F.2d 536 (llth Cir.1983), which
held that "back-spill" of dredged
material into the area from which it was
excavated could not be considered to be
an "addition" of a pollutant. Notably,
however, the Lambert case Was decided
before the Supreme Court decision in
Chevron t/.S-A. v. NRDC. 467 U.S. 837
(1984), which now establishes a
deferential standard of review of agency
actions where Congress has not
specifically addressed an issue. EPA
and the Corps do not believe that
Congress has specifically mandated in
any provision of the CWA that
redeposition of dredged material is only
regulated if it is "moved" from one
"place" to "another." Rather than focus
simply on the spatial relationship
between where .the excavation and
redeposition occur as the deciding
factor determining regulatory
jurisdiction under Section 404, this rule
will regulate an activity (involving a
discharge to any part of waters of the,
U.S.) taking into account the effect of
the activity on the aquatic environment.
The agencies believe that this approach
is entirely consistent with the language
of the CWA, and better effectuates the
environmental protection goals of the
statute than the approach'suggested by
commentors. See CWA section I01(a):
3. Regulation oT "Activities." Not
"Discharges" •
Many commentors argued that the
proposed rule was outside the agencies'
authority under the CWA because the
effects-based test for determining
whether an activity requires a Section
404 permit impennissibly regulates
"activities." whereas the statute only
authorizes regulation of "discharges."
These commentors also argued that if
the agencies were to adopt'the proposed
rule. EPA and the Corps would be
limited by Section 404 of the CWA to
.considering the environmental effects
associated with the discharge itself, not
the activity with which the discharge is
associated. Commentors cited, the
decision of the district court in Reid v.
Marsh, 20 Env't Rep. Cas. (BNA) 1337
(N.D.Ohio 1984) as supporting this
argument ,
EPA and the Corps agree with the
point made by these commentors that
the presence of a "discharge" into
waters of the U.S. is an absolute
prerequisite to an assertion of regulatory
jurisdiction under Section 404. Based
on the clear language in. section 301(a)
of the CWA, this has been the agencies'
longstanding position, and we are not
altering that view in this rulemaking.
For the reasons explained in this
preamble, the agencies believe that
addition or redeposition of dredged
material in the course of activities such
as mechanized landclearing, ditching,
-•channelization and other excavation
meets the discharge requirement of
section 301(a). Because this rule will
only regulate activities where the
jurisdictional prerequisite of a
"discharge" is present, EPA and the
Corps disagree with commentors who
argued that this rule is outside the scope
of the agencies' authority under Section
404.
Commentors are therefore flatly
incorrect that this rule would trigger
Section 404 jurisdiction over a
discharge based upon the environmental
effect of the associated activity. Under
today's rule, the presence of certain
environmental effects is not a
prerequisite for Section 404 jurisdiction;
rather, this rule looks to the
environmental effects for purposes of
creating an exception to the Section 404
permitting requirement that would
otherwise apply to the discharge.
Consideration of such effects is
appropriate in order to ensure that the
creation of a de minimis exception is
consistent with the goals and objectives
of Section 404. See discussion in section-
D, below. Since the agencies clearly
have the authority under Section 404 to
regulate all discharges of dredged
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45012 Federal Register / VoL 58. No. 163 / Wednesday. August 25, 1993 / Rules mid Regulations
material into waters of the United.
States, without regard to effects cm the
aquatic environment, we fail to see how
our decision in this rulemaking to
regulate a subset of these activities
could conceivably be overstepping our
regulatory authority under Section 404.
Beceusa the only statutory condition for
regulation undor Section 404 is the
presence cf a "discharge," cornmentors'
arguments about the scop* of
environmental effects that can be
considered under Section 404 ere
irrelevant to the findings that EPA and
the Corps ere mab'ng to support today's
rule.
To the extent cornmentors argued that
EPA and the Corps can only consider
the environmental effects of the
discharge itself in administering Section
404 (Le., in the Corps' permitting
process or EPA's Section 404(c)
process), such comments are not
relevant to this rulernaking, which
addresses the circumstances when a
discharge or dredged material will
required a Section 404 permit, not how
the discharge will be addressed in the
permitting or 404(c) process, hi any
case, however, EPA end the Corps wish
to clarify that consideration of the
environmental effects of activities
associated with discharges covered by
this rule is well within the agencies'
authority in carrying out their
authorities under Section 404. Because
the scope of .the agencies' authority to
consider environmental effects is not
relevant to our authority to issue this -
rule, the fallowing discussion is not
provided as a legal justification of
today's rule, but rather as an attempt to
help the public understand how we
administer the Section 404 program
generally.
Commectors' extremely narrow
reading of the agencies' authority is first
belied by the language of Section 404(0
of the Act, which was discussed in the
preamble to the proposed rule. Section
404(0(1) exempts certain activities from
the requirement to obtain a Section 404
permit. Section 404(f)(2), however.
requires that a permit nonetheless be
obtained for "any discharge of dredged
or fill material into the navigable waters
incidental to any activity" which has
ths purpose of changing the water's use
and the effect of impairing the water's
flow or circulation, or reducing its'
reaiiir, Cornmentors criticized the
citation of Section 404(f)(2) in the
preamble to the proposed rule. They
argued that this provision merely
recaptures activities that are exempted
under Section 404(0(1}. but that it does
.not expand the underlying scope of
activities covered by the permit
requirement of Section 404{a). These
commenton have misinterpreted th«
reason why the agencies cited Section
404tO(2) in the preamble to the
proposal. We Agree with the
commeotors' point that Section 404(0(2)
does not expand the scope of activities
subject to Section 4O4, However, the
agencies do not rely on Section 404(0(2)
for such a proposition. Rather, we
believe that Section 404(0(2) contradicts
the argument that Congress intended to
preclude EPA and the Corps from
considering under Section 404 the
effects of activities associated with
discharges of dredged or fill material,
such as mechanized landclearing,
ditching, channelization and other
excavation. In Section 404(0(2),
Congress expressly required EPA and
the Corps to implement the statutory
exemptions based upon consideration of
not only the effects of the discharge
itself, but also the effects of the activity
"incidental" to the discharge. Because
Congress expressly required the
agencies to consider such effects under
Section 404(0. we do not believe it
would be reasonable to conclude that
Congress nonetheless intended to
prohibit EPA and the Corps from
otherwise considering such effects
under Section 404.
Morever, EPA's longstanding
interpretation of Section 404, as
reflected hi the Section 404(bXD
Guidelines, demonstrates that EPA and
the Corps are not limited to considering
solely the environmental effects of the
discharge itself. The Guidelines
expressly require consideration of
"secondary effects," which are defined
us
effects OB an aquatic ecosystem that are
associated whh • discharge of dredged or fill
materials, but do not resuh from the actual
placement of the dredged or fill material.
40 CFR 230.1t(h). Where an activity
such as mechanized landclearing,
ditching, channelization and other
excavation activities are performed hi
waters of the U.S. and result in a
discharge of dredged material to those
waters, we believe that such activities
are dearly "associated with" the
discharge, within the meaning of
Section 230.11(b), and therefore
considering the effects of those activities
is properly within the scope of Section
404.
Commentors nonetheless cite the.
decision in Reid v. Marsh, which
addressed the Corps' authority to
regulate dredging activities under
Section 404. This case held that the
Corps was limited under Section 404 to
evaluating the effect of the discharge
itself, and that the Corps could not look
at the effects of the overall dredging
activity. For the masons noted above.
however. Reid is simply not relevant to
this rulemaking* since the sole triggar
under this rak for assarting Section 404,
jurisdiction is the presence! of a
"discharge of dredged material,*' and
the agencies therefore haw clear
authority to regulate the activities
covered by today's rule. Reid did not
address in any manner the scope of die
agencies' authority to establish a de
zninimis exception raider Section 404.
m any case, we do not view the Reid
decision as precluding EPA and the
Corps from considering the effects of
activities associated with a discharge of
dredged material in the Section 404
permitting or veto process. Notably,
Reid was decided before the Supreme
Court decision in Chevron U.SJl. v.
NRDC which, as discussed previously,
now mandates, that courts defer to any
reasonable agency interpretation of o
statute it administers unless Congress
has specifically spoken to the question
at issue. The Reid opinion failed to cite
any provision of the Clean Water Act as
precluding the Corps from looking
beyond the effects of the discharge
itself; nor did Reid discuss at all the
well-established administrative
Interpretation in the Guidelines that
secondary effects must be considered in
issuing permits under Section 404.
Since the CWA does not reflect specific
Congressional intent that EPA and the
Corps be precluded from considering
secondary effects under Section 404, the
agencies retain broad discretion in
deciding whether such an approach is
appropriate. EPA and the Corps believe
that considering the primary and
secondary effects of a discharge is
clearly consistent with the language and
intent of Section 404 to ensure
protection of the aquatic system from
effects associated with the discharge of
dredged and fill material..
m addition, the Reid decision is at
odds with the decision of the Tenth
Circuit in Riverside, Irrigation District v.
Andrews, 758 F.2d 508 (10th Cir. 1985).
In this case, the Corps denied
nationwide permit coverage for the
construction of a dam, the operation of
which would have resulted in depleted
stream flows that would adversely affect:
habitat of an endangered species. Even
though the discharge of fill material
itself to construct the dam would not
have had an adverse impact, the court
held that the CWA authorized the Corps,
to consider the total environmental
impact of the discharge, including
indirect effects such as the Impact of thci
operation of the dam on flows
downstream and associated wildlife
impacts.
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Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations 45013
Several commentore cited cases under
section 10 of the Rivers and Harbors
Act, the National Environmental Policy
Act (NEPA), and Section 402 of the
CWA as supporting their argument that
EPA and the Corps are narrowly
constrained to evaluating the effects of
the discharge itself. For the reasons
discussed previously/these cases are
simply not on point because this rule
properly triggers Section 404 ,
jurisdiction based upon the presence of
a "discharge of dredged material," and
arguments about the proper scope of
environmental review under Section
404 are therefore not relevant to this
rulemaking. In any case, for the reasons
explained above, we disagree with
commentors that EPA' and the Corps are
limited to considering only the direct
effects of discharges themselves in
implementing Section 404.
4. Authority Limited to Regulating
Impacts on Water Quality
A few commentore contended that
EPA and the Corps could only consider
"degradation" of waters of the U.S. in
. terms of the impacts of an activity on
chemical water quality. Some
commentore cited for support for this
argument the decision of the Seventh
Circuit Court of Appeals in Hoffman
Homes v. EPA, 961 F.2d 1310 (7th Cir.
1991), reh. granted and opinion vacated,
35 ENVT Rep. Cases (BNA) 1328 (7th
Cir. Sept. 4.1992).
EPA and the Corps believe that this
comment is erroneous. First, the
decision in Hoffman Homes relied upon
by some commentore has since been
vacated by the Seventh Circuit. A new
opinion issued by the Court in this case
contains no support for the commentor's
argument that the CWA is only intended
to address impacts of an activity on
chemical water quality (Hoffman Homes
V.EPA. No. 90-S810 (July 19,1993)).
We believe, moreover, that there is no
support in the CWA us a whole or in
Section 404 for the proposition that
impacts to the aquatic ecosystem under
Section 404 ate limited to impacts on
chemical water quality, as opposed to
impacts on other functions such as flood
storage and wildlife habitat.
First, the language in Section 404
itself repudiates the notion that EPA
and the Corps may only evaluate
impacts of a discharge on chemical
water quality. For,example, Section
404 (c) authorizes EPA to deny or restrict
specification of a disposal site for
dredged or fill material if the disposal
would have an unacceptable advene
effect on a range of aquatic system .
values, including "shellfish bed and
fishery areas (including spawning and
• breeding areas)," "wildlife," or
''recreational areas." There is no
language in Section 404 indicating that
the adverse impacts to these other
aquatic functions are only remediable
under Section 404 if the impacts result
directly from impacts to chemical water
quality.
Similarly, Congress directed that the
Section 404(b)(l) Guidelines be based
upon criteria comparable to the ocean
discharge criteria contained in Section
403(c) of the Act. Section 403(c) states
that guidelines for ocean discharges
shall include consideration of impacts
of a discharge on "marine ecosystem
diversity, productivity, and stability;
and species and community population
changes." Again, there is no language in
Section 403(c) limiting the
consideration of such impacts solely to
those deriving directly from changes to
chemical water quality itself. Therefore,
the line that some commentore seek to
draw around EPA's and the Corps'
ability to protect the aquatic
environment is simply not one that has
been drawn by .Congress.
The agencies'interpretation of
Section 404, as reflected in the Section
404(b)(l) Guidelines, reaffirms their
responsibility to consider impacts of
discharges on the broader aquatic.
ecosystem, and not just water quality
itself. For example. 40 CFR 230.10(c),
prohibits any discharge of dredged or
fill material that would cause
significantly adverse effects on
ecosystem diversity, productivity and
stability such as loss of fish and wildlife
habitat. See also 40 CFR 230.32
(describing wildlife values that must be
considered in the permitting process);
40 CFR 230.41 (describing how
discharges of dredged or fill material
may damage or destroy habitat and
adversely affect the biological
productivity of wetlands).
S. Reversal of Agency Position
Commenten argued that the proposed
• rule was arbitrary because it represented
an abandonment and reversal of an
allegedly longstanding agency
interpretation of the CWA, and because
the agencies allegedly had failed to
provide an adequate explanation of the
change in policy.
In certain respects this final rule
represents a change in Corps regulations
and policy, but some commenten
seemed to overstate and exaggerate both
the extent and the "abruptness" of that
change. The Corps and EPA expect that
the net effect of this rule will be that
most projects involving mechanized
laDdclearing. ditching, channelization,
mining, or other excavation activity in
waters of the U.S. will require
authorization under CWA Section 404.
Although this new rule will regulate a
number of projects that previously
might have escaped Section 404
regulation, it is important to realize that
the Corps has been regulating many
projects involving mechanized
iandclearing, ditching, channelization,
mining, or other excavation in waters of
the U.S. for years because those projects
frequently involved substantial
discharges of dredged or fill material
into waters of the .U.S. For example,
many drainage ditches in wetlands,
traditionally have been dug by
sidecasting the excavated material into
the wetlands; those activities have
always been regulated under Section
404. Similarly, many channelization,
mining, and other excavation activities
in U.S. waters have been regulated
under Section 404 over the years,
because they involved substantial
discharges through disposal or
stockpiling of the excavated material in
waters of the U.S., or "sloppy"
excavation practices, or other
substantial discharges. As we shall
explain below, the Corps has gradually
changed its policy and practice to
increase our regulation of mechanized
Iandclearing activities over a period of
years. Thus, this final rule is not an
abrupt change in policy, interpretation,
or practice, that would suddenly begin
to regulate all Iandclearing, ditching,
channelization, and other excavation
activities in U.S. waters for the first
time.
Nevertheless, this final rule does
represent both a clarification of agency
guidance and a change of agency
practice regarding a sub-class of
excavation-type activities in waters of
the U.S.: i.e., those that would take
place with relatively small-volume,
"incidental" discharges of dredged
material that unavoidably accompany
such excavation operations. Until the
Corps and EPA .undertook this present
rulemaking, neither agency had ever
promulgated written guidance explicitly
and specifically addressing the question
whether CWA Section. 404 could or
should regulate ditching,
channelization, mining, or comparable
excavation activities in waters of the
U.S. based solely on their incidental
discharges of dredged material.
However, most Corps districts normally
followed the practice of not regulating
such activities so long as their
discharges of dredged material were
limited to small-Volume, "incidental"
discharges.
This practice by most Corps districts
was generally consistent with the
informal policy of the Department of the
Army during much of the 1980s, which
narrowly construed the scope of Section
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4S014 Federal Register / Vol. 56, No. 163 / Wednesday. August 25. 1993 / Rule* and Regulations
404 Jurisdiction over these activities.
The practice of not regulating small,
incidental discharges was also viewed
by many Corps districts as consistent
with the thrust of guidance dating from
the late 1970s regarding de minimis. •
discharges associated with normal
dredging activities. This practice led to ,
the adoption by the Corps in 1986 of the
current language in the definition of
"discharge of dredged material." which
excludes from regulation "c'e minimis,
incidental soil movement occurring
during normal dredging operations." 33
CFR 323.2 (1986) (emphasis added).
This language was explained in several
paragraphs in the preamble to the Corps'
1986 rule, which some commenters who
oppose today's rule quoted to support
tadr position. It states:'
Section 404 clearly directs the Corps to
regulate the discharge of dredged material,
nc* the dredging itself. Dredging operation*
cannot be performed without some fallback.
However, if we were to define this fallback
as » "discharge of dredged material,** we
would, in effect, be adding the regulation of
dredging to Section 404 which we do not
believe w*s the intent of Congress.
51 FR 41210 (Nov. 13,1986) (emphasis
added).
While come in the Corps (along with
some commentors opposed to this rule)
have interpreted this language a*
indicating that the Corps did not intend
to regulate fallback associated with any
activity, the Corps has never in fact
adopted written guidance clarifying the
scope of this exclusion, or.defining the
term, "normal dredging activities."
Moreover, there is no explicit indication
that the language of the rule, or the
explanation statement in the preamble,
applies generally to mechanized
landclearing, ditching, c^u|T1T>|>liy-<>tiAs discussed further
b«low, an informal survey of Corps
districts shows that, in fact, the districts
have varied in their approach to
regulating activities Involving only
incidental discharges, indicating that
the language of the 1986 rule and
preamble was not as definitive as some
comzaentors have suggested.
Today's rule therefore represents the
first time that the Corps and EPA have
clarified the meaning of the term
"normal dredging operations," which
we have defined as:
Dredging for navigation in navigable
writers of the United States, •* that term it
defined in Part 329 of this chapter, with
proper authorization from Congren and/or
the Corp* punuaat to Part 322 of this
Chapter; however, thii exception it act
applicable to dredging activitias in wetlands,
as that term i* defined a! Section 328.3 of thi*
Chapter. (Emphatic added).
By providing this definition, the
Corps and EPA hope to substantially
reduce the inconsistency among Corps
District offices as to scope of the de
minimis exclusion for discharges of
dredged material.
Much of the inconsistency among the
Corps district offices on this issue
resulted from the decentralized nature
of the Corps. Recognizing that
conditions and situations differ
tremendously across the country, the
Corps confers a large amount of
discretion upon each of its district
engineers to operate the regulatory
program in a reasonable manner. Each
district engineer must therefore consider'
local and regional factors in applying
national standards. This approach
enables the program to remain flexible
enough to interpret one standard set of
regulations so that it applies to widely
varying regional needs and
circumstances. In carrying out their
responsibilities, districts have therefore
had to interpret terms used (but not
defined) in the 1986 regulation, such as
"de minimis," "incidental." and
"normal dredging operations" in
response to specific projects, situations,
and regional needs and these
interpretations have differed somewhat
across the country.
Corps headquarters did not intercede
to halt the adoption of tbaaa varying
interpretations ao long as they did Dot
conflict with the plain words of the
.regulations. The Corps has always
provided its districts with the flexibility
to interpret the Corps' regulations so
that they may b» reasonably applied to
varying drcumstancs*. So long as the
districts abided by tb* ragulatory
language in Section 323 l(d). that
indicates that tb* tarm "discharge of
dredged material • • • doaa not
include de minimis. incidental soil
movement occurring during normal
dredging operations." districts were not
prohibited from developing their own
operating interpretations of "de
minimis," "inodmtaL" and "normal
dredging operations."
Today's rule aims to rectify the
ambiguity inherent in the 1986 rule's
statements on "de minimis soil
movement" and "normal dredging
operations," first, by making it clear that
the exclusion from Section 404 of
"incidental movement" of dredged
material only applies to such movement
occurring in the course of "normal
dredging operations"; all other .
incidental discharges of dredged
material under this rule can be
considered a discharge of dredged
material regulated under Section 404.
Second, today's rule for the first time
define* -normal dredging operations,"
as quoted above.
As noted above, over the years Corps
district offices have developed
somewhat differing approaches to how
they1 regulate the various activities that
produce incidental discharges of
dredged material. To sample this
diversity, the Corps conducted an
informal survey of eleven Corps district
offices. The Corps selected the districts
surveyed in order to obtain a cross-
section of likely practices among district
offices. The Corps did not intend,
however, for this to be a "scientific'*
survey statistically representative of
practices across the country; the Corps-
simply wanted to obtain anecdotal
information regarding the range of
interpretations and practices among the
districts, m the survoy the Corps found
that many districts currently regulate
some of the activities covered: by this
rule. Although the Corps is not awara of
any district that regulates all the
activities subject to the rulemaking in
the same manner that today's rule
dictates, there are several districts that
regulate one or more of these activitien
in the same manner as provided for
under this rule.
Since the issuance of the 1990 RGL oh
landclearing (RGL 90-5), the districts
have been much more consistent in how
they regulate landclearing. In the
absence of comparable guidance on
ditching, channelization, and T^ntna
the Corps districts have shown a greater
diversity in their regulation of these
activities. By examining the Informal
survey result* on an activity- by-activity
basis, this diversity becomes readily
apparent
Virtually all of the districts surveyed
regulate ditching activities that involve
sidecasting. At least one of the districts
surveyed regulates ditching activities
that produce only incidental discharge*.
These .incidental discharges wan
typically in the form of drippings or
fallback from «^fr**h'np machinery.
Another district regulates ditching
based on these same incidental
discharges, but only if the water of the
U.S. being ditched is covered by some
type of vegetation that the district could
use to classify the activity as
landclearing, and thus, apply the
guidance in RGL 00-5.
Several Corps districts surveyed
regulate channelization activities baaed
on incidental discharges. These district*
tend to
operations that employ drag Unas. At
least one of these districts will only
regulate these channelization activities
if the activity ia conducted in water.
At least threw of the eleven districts
surveyed regulate mining activities in
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45015 Federal Register / Vol. 58. No. 163 / Wednesday, August 25, 1993 / Rules and Regulations
the waters of the U.S. Two of these
districts are currently regulating these
activities in virtually the same manner
BS they will be regulated under today's
rule. Other districts only regulate
mining activities if the material
removed is in water. Yet another district
regulates* the discing of peat bogs, which
is required in the mining of peat
. As explained above, mechanized .
landclearing is being regulated in a
fairly consistent manner by all Corps
districts due in large part to the series
of regulatory guidance letters that have
been issued by the Corps over the past
decade. There is, however, some
inconsistency in how the most recant
RGL (RGL 90-5) is currently being
applied by some districts. At least one
district, as explained above, uses the
RGL 90-5 to regulate discharges
incidental to ditching, as long as the "
area has some type of vegetation on it.
Some degree of inconsistency among
the Corps districts'in regulating
ditching, channelization, mining, and
even landdearing is therefore evident in
the results of our survey. The Corps will
readily concede that practically every
district will have to change some
number of their regulatory practices to
conform to today's rule. However, the
allegation that today's rule represents a
sudden and radical departure from a
longstanding, official interpretation of
our Section 404 regulatory jurisdiction
substantially overstates the case.
Commentors specifically cited several
RGLs on landclearing, the only written,
national guidance the Corps has issued
concerning any of these activities, as
evidence that the Corps, by
promulgating this rule, allegedly is
drastically departing from past agency
positions. The commentors focused
mainly on the RGLs that were issued by
the Corps in 1982 and 1985 that more
narrowly construed the extent to which
mechanized landclearing activities
would be subject to Section 404. RGL
82-3 stated that Section 404 did not
cover "[mlinimal ("de minimis")
movement of dirt, in and of itself,
incidental to removal of planting of
vegetation." Under this RGL, such
activity would be covered if
"accompanied by a land leveling
operation which alters the topographic
features of a 'water of the U.S.' through
significant movement of soil." After the
decision was issued by the 5th Circuit
in Avoyelles, the Corps issued RGL 85—
4, which provided that mechanized
landclearing activities required a
Section 404 permit if "the activity
would involve burying Jogs or burying
burn residue, or totally or partially
filling in sloughs or low areas, or
leveling the land." This RGL also stated
that piling of trees, brush and stumps
with de minimis amounts of *oil
attached or gathered in the piling
operation did not necessarily constitute
a Section 404 discharge unless it would
totally or partially fill, in sloughs or level
the land. The RGL also stated that the
filling of stump holes is normally a de
minimis discharge because of the de
minimis nature of the incidental soil
movement. • ;
EPA and the Corps acknowledge .that
the interpretation of the applicability of
Section 404 to mechanized landclearing
activities contained in these two earlier
RGLs was more narrow than that
reflected in today's regulation. Rather
than view today's rule as a sharp
departure of our past position, however.
we believe that there has been an
evolution in the agencies' treatment of
mechanized landclearing under Section
404, which has gradually brought more
and more mechanized landclearing
activities under regulation by the
Section 404 program. The 1982 RGL
most narrowly construed the
applicability of Section 404 to these
activities, while the 1985 RGL
recognized additional circumstances
when mechanized landclearing would
trigger Section'404 Jurisdiction. Finally,
almost three years ago, the Corps issued
RGL 90-5, which took the position that
mechanized landclearing activities
generally are regulated under Section
404 because they result in the •
redeposition of dredged material
Today's rule is therefore entirely
consistent with the guidance issued by
the Corps in 1990.
Thus, while our position has changed
over the course of the last decade
regarding the applicability of Section
404 to mechanized landclearing
activities, we do not agree with the :
commentors who argued that today's
rule is an "abrupt" reversal of our
longstanding position. The
Interpretation of Section 404 contained
in the landclearing portion of today's •
.rule is the position that has been taken
by the Corps since 1990. This position
reflects, moreover, the gradual increase
in our appreciation of the severe adverse
environmental effects associated with
mechanized landclearing that has led us
to conclude that regulation of these
activities under Section 404 is
warranted.
Even if one were to consider today's
rule an "abrupt reversal" of a
longstanding agency position, however,
the Corps and EPA believe that such a
change is warranted in light of our
increased understanding of the severe
environmental effects often associated
with the activities covered by the rule,
and the increasing sophistication of
developers who seek to convert waters
of the U-S. to uplands without being
subject to the Section 404 regulatory
program as previously administered by
the agencies. As the Supreme Court
recently provided in Rust v. Sullivan, an
"agency, to engage in informed
rulemaking, must consider varying
interpretations and the wisdom of its
policy on a continuing basis." Ill S. Ct
1759.1769 (1991), quoting Chevron
U.S-A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837,
863-64,104 S. Ct. 2792. The Court
further explained that agencies must be
provided the flexibility to '"adapt
[their] rules and policies to the demands
of changing circumstances.'" Id.
Such changes, whether dramatic or
slight, must be consistent with the
authorizing statute and be based on a
"' 'reasoned analysis.'" Id. quoting Motor
Vehicle Mfrs. Assn. of the United States
v. State Farm Mutual Automobile Ins. ,
Co., 463 U.S. 29. 42,103 S. Ct 2856,
2866 (1983). The Corps and EPA both
strongly believe that the regulatory
mandates expressed in today's rule are'
within the authorities provided to our
agencies pursuant to Section 404 of the
Clean Water Act Furthermore, we feel
that, to whatever extent today's rule
constitutes a change of previous
practice, such a change is warranted, for
the reasons we have explained in the
preamble.
The Corps regulatory program over
the years has proved to be remarkably
adaptable to changes that has occurred
• in our appreciation of wetland functions
and values and in our increased
•understanding of the effects of certain
activities on wetlands. Ever since the
Corps was first given authority to
regulate discharges of dredged or fill
material into waters of the U.S., the
Corps and EPA have been shaping and
denning the regulatory program with
the broad discretion granted to the
agencies by the CWA. Today's rule
embodies many changes that we have
gradually adopted through less formal
guidance over the past two decades, and
incorporates some refinements and
clarifications to our policy that are long
overdue.
In certain respects, and for every
Corps district, today's rule will bring
about changes in our previous practice;
however, we believe mat such changes
are warranted in order to ensure that the
Section 404 program can effectively
protect our aquatic resources from the
degradation that can result from
unregulated mechanized landclearing,.
ditching, channelization, and other
excavation activities. As discussed
further below, we have teamed
increasingly over the last decade how
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45016 Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations
these activities can severely impact our
nation's aquatic resources, and we
'therefore view today's rule as an
important means of achieving the
objectives of the CWA to "restore and
maintain the chemical. physicaLand
biological integrity" of those resources.
The specific facts of the case that led
to the initiation of litigation in the
Tulloch lawsuit provides a graphic
example of how mechanized
landclearing and ditching activities
adversely affect the aquatic
environment, and of the inequities that
have resulted under the previous
policies for regulating these activities.
The facts in Tulloch help demonstrate
the necessity of this rule by revealing
how one developer with the technical
expertise and financial resources was
able, under past agency policies, to •
avoid the requirement to obtain a
Section 404 permit for environmentally
destructive activities in waters of the
United States.
The Tulloch case involved an 1800
acre development project in New
Hanover County, North Carolina, called
the Pembroke Jones Pork. In 1987, the
Corps determined that about 700 acres
of the site were wetlands. The developer
performed numerous activities in the
wetlands that "destroyed or degraded"
them, yet the Wilmington District
repeatedly determined, based on their
understanding of the policies of the
Corps, that the developer's activities
should not be regulated under Section
404.
The developer originally applied for a
permit for discharges associated with its
development, but withdrew the
application in light of concerns among
the Corps and resource agencies about
the significant adverse effects likely to
be caused by the development. The
developer subsequently met repeatedly
with the Wilmington District of the
Corps, presenting a strategy for •
constructing the same project without
the need to obtain a Section 404 permit.
First, the developer land cleared much
of the wetland acreage. This was
accomplished by pushing the vegetation
from the cleared area. Wilmington
District determined that since the
developer removed all the vegetation
and did not recontour the land, this
activity did not require a Section 404
permit.
If these same activities were
employed after the promulgation of
today's rule, those activities would
trigger Section 404 regulation. Under
the rule, for example, the dirt falling
from the roots of the trees as they were
removed from the ground, in and of,
itst-lf. would constitute a discharge of
dredged material that would subject the
mechanized landclearing operation to
regulation. Pursuant to today's rule,
these landclearing activities pursued by
the developer would certainly destroy
or degrade the wetlands and therefore
require Section 404 authorization.
Second, the developer performed two
types of excavation activities in the
wetlands. He excavated some areas to
create new ponds and excavated
drainage ditches. The excavation was
performed using draglines (in the
ponds) and backhoes, which had sealed
buckets. The soil excavated was either
placed directly on uplands or placed in
sealed containers resting on the beds of
4-wheel drive and 6-wheel drive trucks
or pans. The excavation, for the most
part, was performed in such a manner
that only drippings from the buckets of
the excavation machinery were allowed
to fall back into the wetland.
Using computer modeling, the
developer's consultant determined that
by excavating ditches four feet deep
every two hundred feet, the wetlands in
the first conversion area could be
drained, eliminating the presence of
wetland hydrology and wetland
vegetation, and thereby removing the
area from Section 404 jurisdiction. After
these ditches were completed and the
water table had dropped sufficiently,
the Wilmington District released the
tract from jurisdiction. The developer
used this technique in several other
tracts which were also later released
from jurisdiction.
The developer also excavated many
acres of the wetlands in order to create
approximately eighty-five acres of open
water ponds. He also inundated
portions of the wetlands acreage to
create additional open water ponds. The
work was accomplished by constructing
wooden piers that the Wilmington
District did not find to be an activity
that was regulated under Section 404.
During the course of the excavation
operations, the Wilmington District
determined that these activities were
not subject to regulation. By using
sealed buckets and container trucks, the
developer was able to substantially
reduce the amount of dredged material
being redeposited in the wetland.
Although the Wilmington District later
adopted a more strict position regarding
excavation activities in wetlands, the
District initially determined that it
would not require the developer to
secure a permit based on the
"drippings" along.
As a result of this operation, hundreds
of acres of environmentally valuable
pocosin wetlands have been converted
into a residential development and a
golf course without being regulated,
eliminating opportunities to avoid and
mitigate advene environmental effects.
Pocosins are an unusual and relatively
rare type of wetland found only in the
Southeast. Owing their existence to poor
drainage and abundant rainfall,
pocosins typically serve important
water quality and ground water recharge
functions, and often provide habitat for
rare plants and animals. Because of the .
sophisticated methods employed, this
developer was able to evade regulation
under the Section 404 program while
destroying these ecologically valuable .
wetlands.
It is clear that the methods used by
the developer were expressly chosen
because they would avoid triggering the
need to obtain a Section 404 permit. The
developer's representatives met
repeatedly with the staff at the
Wilmington District to determine what
the District believed was the exact
extent of its regulatory jurisdiction over
wetland excavation. It was only after the
developer was confident that it could
successfully evade Corps regulation that
it would proceed with the next
destructive portion of its operation.
It is precisely because of operations
like this development that the Corps
and EPA have decided to promulgate
this rule. At one time it appeared to be
sufficient to base the regulation of
ditching on sidecast material. This, as
well as other similar projects, have
demonstrated that this is no longer the
case. It the Corps and EPA are to
perform their assigned mission under
the CWA, "to protect and restore the
chemical, biological, and physical
integrity of the waters of the U.S.," we
believe that modification of earlier
practices and policies is necessary and
appropriate.
C. Presumption That Mechanized
Landclearing. Ditching, Channelization
and Other Excavation Result in
Discharges
The proposed rule contained language
that would have established an ..
irrebuttable presumption that
mechanized landclearing, ditching,
channelization or other excavation
activities in waters of the United States
result.in the discharge of dredged
material (proposed 33 CFR 323.2(d)(2)
and 40 CFR 232.2(e3(2)).
1. Public Comments and Changes to
Proposed Rule
Commentors expressed several
concerns with this approach. First,
commentors argued that the terms
"mechanized landclearing," "ditching."
"channelization" and "excavation" are
vague, and therefore do not provide
clear guidance to the regulated public as
to whether their activities would require
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Federal Register /Vol. 58, No. 163 / Wednesday, August 25,1993 / Rules and Regulations 45017
a permit under the rule. Commenton
argued, moreover, that the agencies had
not presented factual information in
justify the conclusion that these
activities invariably result in discharges.
They contended that it is possible in
some cases to conduct some of these
activities without causing any fallback
or redeposition of dredged material.
In response to these comments, and in
order to ensure tLat the final rule is
clear and understandable, the Corps and
EPA have made certain changes in'the
final rule. The agencies have deleted the
proposed rule language that would have
established the irrebuttable presumption
that the listed activities will result in
discharges of dredged material. As
explained in the preamble to the
proposed rule and explained further
below, we believe 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. However, the agencies cannot
rule out the possibility that, in a highly
unusual case, or with novel technology,
one or more of these activities might be
accomplished without such a discharge.
Moreover, since the agencies' -
jurisdiction over a particular activity
can only be triggered by the presence of
a discharge in the specific case, the
agencies declined to make a categorical
finding in this regulation that the listed
activities always result in discharges.
That determination, by Us nature,
depends on the facts of a particular case.
However, the agencies strongly
conducting any one of these activities
without obtaining a permit that they
may be proceeding at the risk of
violating Section 404 since, under
today's rule, a permit is required in any
case where any incidental redeposition
of dredged material (however small or
temporary) is cause in connection with
an activity that would destroy or
degrade waters of the United States,
unless otherwise exempted under
.Section 404(f).
Because this rule does not make a
finding that mechanized landclearing,
ditching, channelization and other
excavation will always result in
discharges, commentor's concerns about
the factual support for such a finding
are no longer relevant. Section C, below,
however, provides a detailed
description of how mechanized
landclearing, ditching, channelization .
and other excavation activities can
result in the redeposition of dredged
materials.
Several commentors stated that the
term "mechanized landclearing" should
not be defined to include operations
such as.the moving or cutting of
vegetation where the activity occur* at
or above the soil/sediment line. Some
commentors wanted the Corps and EPA
to clarify which landclearing activities
will be regulated under this rule. We
agree that not all mechanized operations
involving the removal of vegetation in
wetlands and other waters of the United
States should be regulated because not
all these operations result in a discharge
of dredged or fill material.
In response to these comments, the "
definition of discharge of dredged
material in the final rule expressly
excludes "activities that involve only
the cutting or removing of vegetation
above the ground (e.g., mowing, rotary
cutting, or chainsawing) where the
activity neither substantially disturbs
the root system nor involves
mechanized pushing, dragging, or other
similar activities that redeposit
excavated soil material." Under this
language, a discharge only occurs when
mechanized landclearing activities
occurring in waters of the U.S. cause
soils and other excavated dredged
materials to be added or redeposited in
such waters. So long as all work occurs
above ground level, and root systems are
not substantially disturbed, the cutting
of vegetation, whether using hand-held
equipment or equipment mounted on
heavy machinery, would not cause
either the addition or the redeposition
of dredged material. For example,
maintenance clearing of existing
powerlines and chipping cut vegetation
in place or shearing vegetation above
the soil line where the vegetation is not
subsequently windrpwed or otherwise
pushed would not usually cause a
discharge regulated under Section 404.
Several commentors, however.
appeared to argue that maintenance of
utility line corridors would never result
in a discharge of dredged or fill
material. These commentors cited the
decision of the Fifth Circuit in Save Our
Wetlands, supra, which held that
cutting of trees with a chainsaw and
windrowing of the vegetation did not
result in a discharge subject to Section
404. As noted above, today's rule
expressly excludes from the definition
of "discharge of dredged material" the
cutting of vegetation above the ground.
Under today's rule, if vegetation is cut
above the surface and then lifted into
windrows without causing redeposition
of excavated material, then no Section
404 permit is required. If, however,
windrowing is accomplished in a
manner that would redeposit dredged
material (for example, by pushing the
fallen vegetation with a bulldozer or
similar equipment), then a permit
would be required.':
Unlike certain commentors, however,
we do not read Save Our Wetlands as
holding that EPA and the Corps are
precluded under the CVVA from
regulating landclearing unless it would
result in a conversion of waters of the
U.S. to uplands. That decision did not
construe the scope of the agencies'
statutory authority under Section 404,
but rather turned on EPA's and the
Corps' regulatory definition of discharge
of dredged material. The court held that
the activities in that case did not
constitute a discharge of dredged
material under the agencies' regulatory
definition because the activity would
not convert wetlands to uplands. An
activity involving a discharge of
dredged material subject to today's rule,
however, would require a permit if it
would destroy or degrade a water of the
United States. We do not read Save Our
Wetlands as addressing, in any respect,
the agencies' statutory authority to
adopt the regulatory approach we are
taking here. Indeed, the court expressly
noted in its opinion that Congress left to
EPA and the Corps how to define the
term "dredged or fill material." Id. at
647.
2. Description of Mechanized
Landclearing, Ditching, Channelization
and Other Excavation Activities
The agencies provide below a detailed
description of the actual processes
involved in mechanized landclearing,
ditching, channelization and other
excavation. This discussion is intended
to be illustrative of the major types of •
landclearing and excavation techniques
currently used, and is not intended to be
exhaustive or limit in any manner the
scope or applicability of the final rule.
We are providing this description in
order to illustrate the manner in which
these types of activities cause incidental
soil movement, which results in
additions or redepositions of dredged
material.
a. Mechanized landclearing. In the
mechanized landclearing process, the
addition or redeposit of dredged
material can occur several ways. For
example, implements used in the
mechanized landclearing process are
scraped along the surface of the ground
or pushed into the ground and then
moved through the soil, usually by
bulldozers or loaders. Brushrakes,
rootrakes, chunkrakes, disc harrows,
root plows, rippers, bulldozer plows,
and many types of shearing blades are
characteristic of the type of equipment ,
which operate in this way. BrushrakeSi
for example, have tines which scrape
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i-ederal Kec.ster / Vol. 58. No. 163 / Wednesday, August 25. 1993 /rules and Regulations
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 smell saplings by using concave
disc, two feet or more in diameter, with
sharp scalloped edges; root rakes
remove roots and stumps by use of a -
fork-like blade pushed through the soil;
shewing blades are tractor-mounted
shears which can weigh up to several
thousand pounds and can move large
amounts of debris, soil and roots if they
are moved along the surface of the
ground. Rippers and deep plows are
pulled along below the soil surface to
Iresk up hard pans or other stiff subsoil.
Tne arm which attaches them to the
bulldozer or loader drags through the
S">:1 surface, moving soil aside and
thert'by causing a discharge.
When the implements used in
mechanized landclecrir.g move along
L';C ground or through the soil, they
scrfpe, pick up, move or otherwise
displace debris and soil (including leaf
litter and humus) and usually have a
leveling effect on the ground by moving
c. bris ircrn Ligh areas to lev/, areas.
\YJisn soils are picked up, moved, or
o'..';or>vise displaced, they are added or
r: deposited to waters of the United
States at various distances from the
excavation point as the implements
used in the mechanized landclearing .
prccass move through waters of the
United States. During the discing,
lining, or raking process, for example,
soil will ride in front .of the disc, tine,
or rake if the disc, tine, or rake scrapes
or penetrates the ground, resulting in a
displacement and redepositing of soils
ana sediments.
The addition orredeposit of dredged
material also occurs when equipment is
used to knock down trees and rip up
root systems even if the equipment used
deer not, in itself, scrape across or
per.dU£te the ground. When stumps are
ripped out of the waters of the United
Steles, soils and sediments ars added or
redrposited beck into the waters of the
United States. Also, boles and
dppressions are created in the ground
which are typically filled by using the
v.:*.:.l2 wbicL removsd the trees and
their ri~:s rr subsequently by ether
vehicles cr equipment. This filling or
redeposition would constitute a
discharge in addition to that which
occurs by the removal of the stumps
thtmsalvfcs. Tree pushers and tree
splitters are examples of equipment
which normally operate in this way. A
true 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. As the tree pusher or tree splitter
knocks the tree down, the roots are
usually ripped up out.of the ground.
Any roots remaining are then typically
removed from the ground by the
bulldozer's blade. Not all equipment
used to remove trees disturbs root
systems, or pushes, drags, or otherwise
engages in an activity which results in
a discharge of dredged material. Some
tree shears or tree pinchers, for example,
may be operated in such a manner so
that they do not cause a discharge of
dredged material, provided the
vegetation is cut above the ground while
leaving the soils and roots intact.
b. Ditching, channelization and other
excavation. During excavation, material
in either a solid or semi-solid form is
removed from the waters of the United
States. As material is excavated from the
waters of the United States, the addition
or redeposit of dredged material occurs
through soil or sediment spills,
drippings, and moving or displacing of
soils and sediments as the. dredging
equipment moves through the soil or .
sediments. .
Ditching and channelization are two
types of excavation activities which
often occur in wetlands and in other
waters of the Untied States. As we use
the terms here, ditching is the act of
creating ditches (i.e., trenches or
troughs) by excavating the earth.
Channelization is the modification
made to, within, or adjacent to an
existing stream channel, as well as the
rerouting of a steam, channel. Both
ditching and channelization are used to
convey water, often for irrigation or
drainage purposes and can be
accomplished by using the same
equipment.
Most ditching and channelization
activities are accomplished using
excavation equipment of some type,
which is usually characterized by the
use of some form of bucket or scoop to
excavate soil and sediment.
Mechaniel dredging equipment
typically consists of a backhoe, a
bulldozer, a dipper, or a bucket. A
backhoe is a hoe-type or pull-type
shovel usually attached to the back of a
front loader. A backhoe, which shovels
and then lifts sail or sediments from
waters of the United States, is often
used during the construction of ditches
or for stream channelization projects. A
dipper and bucket operate at the end of
a boom, which is 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 dropped or sidecast on
adjacent grounds or into vehicles where
it is moved to another disposal site.
Bucket dredging for ditching and
channelization projects is commonly
done with a dragline. Draglines, or other
equipment of this kind, operate by
dropping the bucket into the soil or
sediment and then- dragging it through
the soil or sediment until it is filled.
With a dipper, as with a backhoe, a
bulldozer or loader pushes the scoop or
hoe through the soil or sediment in
order to fill up the dipper. The dipper
is then moved off the bottom and the
collected sediments disposed of as they
are with buckets.
. Many stream channelization projects
are accomplished by using a bulldozer
to push sediments, including cobble,
gravel and sand, from a particular point
in the stream to another location. To
complete such work, the bulldozer
blade is lowered into the bottom of the
stream and then moved in a forward
direction which results in the pushing
of sediments to another location in the
steam or to an upland area.
Because of the physical processes of
soil movement inherent in the act of
dredging, the use of bulldozers,
draglines, dippers, and backhoes, or
other equipment of this kind will,
except in limited situations, result in
some addition or redeposition of
dredged material. The addition or
redeposit of dredged material occurs as
soils and sediments are picked up and
moved during the excavation process.
For example, when a dragline or
backhoe is dragged through soils or
sediments, such soils and sediments are
displaced and redeposited to various
distances from the initial excavation
point as the implement used in the
excavation process gathers the dredged
material. This same type of
displacement and redeposition occurs
as a bulldozer pushes sediments during
a stream channelization project. Also,
when the dragline or. backhoe stops
moving along the bottom and the bucket
is raised, additional additions or
redeposits of soils or sediments occur as
such material falls from the bucket.
The cutterhead dredge is the most
commonly used hydraulic dredger. It
operates by using a rotating cutter to cut
into the sediments. The rotating cutter
is attached to a suction line which sucks
in the material as it is being cut.
Typically, a cutterbead is used to break
up the sediment and mix it into a slurry
and then pump it through a pipe to a
disposal area. As the cutterhead moves
through the bottom, it pushes the
sediment around. The addition or
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Federal Register 7 Vol. 58, No. 163 / .Wednesday, August 25, 1993 / Rules and Regulations 45019
redeposit or dredged material occurs as
the whirling of the cutter slings some of
the dredged material away from the
suction of the pump either as discrete
clumps or in suspension and adds or
redeposits it at various points from
where the cutterhead moved through
the bottom.
D. Effects of Mechanized Landclearing,
Ditching, Channelization and Other
Excavation
The agencies received substantial
public comment regarding whether the
activities that would be covered by this
rule in fact destroy or degrade waters of
the U.S. Many commentors cited
activities that they believed did not
cause such an effect. There was also
confusion regarding the meaning of
"degrade" in the proposed rule. Some
commentors also objected to the
presumption in the proposed rule that
these activities destroy or degrade
wetlands, and questioned the factual
basis for such a presumption. These .
comments are addressed below.
1. Definition of "Destroy" and
"Degrade" , .
The proposed rule did not contain
definitions of the terms, "destroy" and
"degrade." In the preamble to the
proposal, however, the agencies
solicited public comment on defining
destruction as altering an area "in such
a way that it would no longer be a water
of the U.S." and defining degradation as
occurring when a discharge "results in
an identifiable decrease in the
functional values of the water of the
U.S." 57 Fed. Reg.. 26896.
Several commentors supported the
definition of "destroy," stating it was
clear and concrete. A few commentors
recommended that the definition of
"destroy" be modified to clarify that it
is only necessary to determine whether
there is destruction in areas currently
being delineated as waters of the United
States. Two commentors felt the
destruction threshold was inadequate
and that destruction would also occur
when a wetland or other special aquatic
site is converted to open waterbody,
such as conversion of a wetland to a
retention pond. Another commentor
disagreed and argued that this type of
activity did not destroy, and possible
did not even degrade, waters of the
United States. We believe that the term
"destroy" is sufficiently clear that no
change in the proposed approach is
appropriate.
We agree with commentors that the
jurisdictional status of an area before
and after an activity takes place should
be based on current agency guidance for
making such determinations. While we
agree that conversion of a wetland or
other water of the U.S. to another type
of water of the U.S. (e.g., conversion of
a wetland to open water such as a lake)
does not necessarily "destroy" a water
of the U.S., such a change could in fact
"degrade" an area by adversely affecting
at least one of the aquatic functions of
the site. As discussed further below,
while there may be some environmental
benefits associated with such a project,
any adverse effect on any aquatic
function would mean that an activity
required a Section 404 permit; While
such an activity may well receive a
permit based on consideration of the
Corps' public interest review and the
Section 4Q4(b)(l) Guidelines, we do not .
believe that it would be appropriate to
exclude such activities from the
coverage of Section 404 entirely. For
clarity, we have added the definition of
destroy to the final rule (see 33 CFR
323.2(d)(4); 40 CFR 232.2(e}(4}).
By far, most commentors addressing
these terms were concerned with the
definition of "degrade" contained in the
preamble to the proposal as "an
identifiable decrease in the functional
values of waters of the United States."
The commentors stated that
"identifiable decrease" and "functional
values" were vague terms, which were
not susceptible to measurement, and
that adoption of these terms would only
contribute to increased confusion over
the Section 404 regulatory process, as a
result of subjective determinations made
by Corps or EPA personnel. Two
commentors felt that the term
"functional values" was inappropriate
and should be replaced with "functions
and values," to be judged separately
since functions are measurable and .
values are subjective. A few
commentors recommended that
, regulated waters be generally classified,'
according to potential functions and
values, for their respective geographic
areas, while two others felt functions
should be directly related to the science
of water quality. Several commentors
stated that there is no established
methodology to evaluate functional
values for impact assessment. Therefore,
they recommended that the Corps and
EPA develop a methodology and/or
identify a preferred method to provide
a clear and precise standard to measure
• degradation. Further, two of these
commentors also felt that the selected
methodology should be implemented
only after promulgation through notice-
ana-comment rulemaking.
Several commentors disagreed with
the example presented in the proposed
rule, i.e., that if the hydrologic regime of
a wetland is altered enough to change
the vegetative composition of the area,
it will bo degraded. These commentors
did not believe a mere change in
vegetative composition automatically
re'sults in degradation. As a means of
better clarifying the term "degradation,"
several commentors suggested that the
definition refer to an "identifiable
adverse effect that the proposed activity
is likely to have on waters of the United
States." Two commentors suggested '
replacing the word "identifiable" with
"significant" and one commentor
recommended changing "identifiable
decrease" with "appreciable decrease."
Because there was confusion among
the public about the term "degrade" we
have chosen to include a definition of
degradation in the final rule that'
incorporates suggestions made by some
commentors. Under the final rule, an
activity results in degradation when it
would have more than a de minimis
effect on the area by causing an
identifiable individual or cumulative
adverse effect on any aquatic function.
As discussed further below, this
standard is a threshold for determining
whether an activity requires a Section
404 permit at all, so we believe that any
adverse effect to any aquatic function of
the site would constitute "degradation"
under the final rule, Evaluation of the
project and its overall impacts* under the
Section 404(b)(l) Guidelines and the
Corps' public interest review would
occur during the permit process.
This definition changes how the term
"de minimis" is used in the rule from
the way it has been used previously in
the definition of "discharge of dredged
materiel." In the previous rule, the term
"de minimis" referred to the amount of
soil moved during normal dredging
activities, and the proposed rule
similarly used this term to refer to the
amount of soil moved in.the process of
mechanized landclearing, ditching,
channelization and other excavation.
The definition of degradation in the
final rule uses the terra "de minimis" to
refer to the degree of environmental
effects associated with these activities.
This change makes sense for several
reasons. First, using the term "de
minimis" to refer to environmental
effects is consistent with the intent of
this rulemaking, which is to ensure that
incidental discharges associated with
mechanized landclearing, ditching,
channelization and other excavation
trigger Section 404 where those
activities would have certain effects on
waters of the U.S. Establishing a de
minimis effects test also comports with
the structure and goals of Section 404,
which focus on providing protection of
waters of the United States from adverse
effects associated with discharges of
dredged or fill material.
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45020 Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations
EPA and the Corps believe that the de
minimis exception contained in today'a
regulation is within the agencies'
authority under Section 404. The •
underlying focus of Section 404 is on
evaluating and, where possible,
reducing and avoiding adverse effects to
the aquatic environment due to
discharges of dredged or fill material.
Section 404's focus on environmental
effects is evident in numerous ispects of
this statutory provision. For example,
Section 404(c) authorizes EPA to
prohibit, deny or restrict the
specification of any site for the
discharge of dredged or fill material if
it would have "unacceptable adverse
effects" on municipal water supplies.
sh&llfish beds and fishery areas, wildlife
or recreational areas. A similar focus on
en\ nonmental effects is evident in
Section 404(0(2). which "recaptures"
activities otherwise exempt under
Section 404(0(1) where the activities
have the purpose of changing the use of
csi area of waters of the United States,
rnd have the cffoct of impairing the flow
cr circulation, or reducing the reach, of
waters of the* United States.
Thus, the very purpose of Section 404
i = to conduct an environmental review
of dlst-ha-ges of dredged or fill material
in order to determine the gravity of the
environmental harm associated with the'
c.scherge, ar.d evaluate ways in which ,
tvst harm can ba reduced or avoided.
Ths focus of Section 404 on effects of
discharges is reflected throughout the
Section <04(bXl) Guidelines which, for
exeraple. prohibit discharges where a
practicable alternative would have less
"adverse impact" on the aquatic
ecosystem, where a discharge would
c£.use or contribute to significant
degradation of the aquatic environment
or where appropriate and practicable
step-, have not been taken to minimize
"adverse effucls of the discharge on the
STJau'c ecojvsleni." See 40 CFR 230.10
(a), (c), cr.d fc). See ahc 40 CFR 230.11
(listing types of effects that must be
considered in the permitting process).
Thdrsfora, subjecting o"e minimis
cct!v!t!os to review under section 404
would be a nesdless paper exercise.that
wcu!d divert limited ageqcy resources
from focusing on discharges associated
with environmental effects of concern
undvr Section 404. Given the clear focus
cf Section 404 on regulating activities
bdsiid on their environmental effects, we
view an exception for discharges of
dreJged material having de minimis
effects as a tcol for advancing the goals
and objectives of Section 404. See
Alobcma Power Co. v. Costle, 636 F.2d
323 (DC Cir. 1979).
V.'e note that the exception addressed
by this rulemaking was already present
in the agencies' regulatory definition of
"discharge of dredged material." This
rule is clarifying, and narrowing the
effect of, this pre-existing exception.
Moreover, as discussed further below,
EPA and the Corps have included
provisions in the rule to help ensure
that only truly de minimis activities are
exempted from the Section 404 program
by requiring that dischargers engaging
in mechanized landclearing, ditching,
channelization and other excavation
obtain a finding by the Corps, or EPA as
appropriate, prior to their discharge,
that their activities do not require a
permit.
We wish to emphasize that the
threshold of adverse effects for the de
minim:s exception is. a very low one.
Under the final rule, an identifiable
adverse individual or cumulative effect
on any aquatic function is sufficient to
subject an activity to Section 404
jurisdiction-. Some activities may cause
certain adverse effects on the aquatic
ecosystem while having other beneficial
effects. For example..an activity altering
the hydrology of a wetland may result
in restoring pre-existing hydrology, or
may improve habitat value or water
quality in the long-term. If the activity
would result in come loss or identifiable
reduction of any aquatic function to
achieve this result, however, the activity
would "degrade" waters of the U.S. and
a permit would be required under
today's rule. For example, if a discharge
activity would have any adverse impact
on the suitability of the area as habitat
for any species utilizing the area, a
permit would be required. It is not our
intent, therefore, that the positive and
negative effects of the activity be
balanced and to require a permit only in
those cases'where the net effect is
adverse. Rather, an adverse effect on any
one aquatic function, even if it is
temporary, would be sufficient under
the final rale to trigger the Section 404
permit requirement.
In the case of endangered cr
threatened species, any effect of an
activity on such species would trigger
an inquiry by the Corps as to the nature
of that effect, and whether the activity
would destroy or degrade waters of the
U.S. within the meaning of today's rule.
If there is an effect on endangered or ,
threatened species from an activity, the
Corps in consultation with the Fish and
Wildlife Service or the National Marine
Fisheries Service (depending on the
agency having jurisdiction over the
species) under Section 7 of the
Endangered Species Act, will determine
whether the activity is likely to
adversely affect the species. If the Corps
finds that the activity is not likely to .
adversely affect the species, and the
Service concurs in writing in this
finding, then the activity would not
"degrade" the water within the meaning
of today's rule, and ho permit would be
required. If, however, either the Corps
or the Service believes that the effect is
likely to be adverse, then a Section 404
permit will be required for the activity.
Other examples of adverse effects on
any aquatic function would be an
adverse alteration of the area's
hydrologic regime, or of the type.
distribution of diversity of vegetation.
fish and wildlife that depend on such
waters. Again the threshold of effect
under the final rule is a low one. It
would not be necessary for a discharge
activity to remove or significantly
impair wetland hydrology to trigger the
permit requirement. An activity that
would, for example, likely reduce the
duration of inundation or saturation of
a portion of wetland would "degrade"
the wetland within the meaning of this
rule. Indeed, in some cases, increasing
the duration of inundation or saturation
may have an adverse effect on an
aquatic function. Similarly, alteration of
the vegetative composition of a water of
the U.S. does not require that all
vegetation be removed, or that the
vegetative composition be so
significantly altered that the area would
no longer rnaet the hydrophytic
vegetation criteria for delineating
wetlands. A lesser change to the
vegetation of an area can, for example,
have an impact on the function of a
wetland as a food source or as habitat
for a species utilizing the area.
Activities such as walking, bicycling
or driving a vehicle through a wetland
would have de minimis effects except in
extraordinary situations, and the
agencies do not intend to devote scarce
resources to regulating such typically
innocuous activities. , ;
In response to commentors who
thought that the agencies should
establish a higher effects threshold in
this rule (e.g., activities would be
regulated only when they have a
"significant" effect on the environment),
we wish to emphasize that tho de
minimis exception is necessarily a
narrow one; limited to "trifling" or
"inconsequential" effects (see Alabama
Power Co. v. Costle, 636 F2cL at 360 (DC
1979). Moreover, the evaluation of
effects under this rule is for the purpose
of determining whether an activity is
subject to regulation under the CWA at
all. When an activity poses more than
de minimis effects on the aquatic
environment, the severity of those
effects will be evaluated to determine
whether, for example, • class of
activities would have minimal effects
and therefore could be authorized by a
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Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations 45021
general permit. See CWA Section 404 (e).
The severity of effects is also evaluated
during the individual permitting
process to determine whether a .permit •
should be issued and, if so, with what
conditions. Where the question,
however, is whether an activity requires
authorization at all, we believe that the
threshold should be a low one,
consistent with the nature of the legal
de minimis exception.
The term "significant impacts" by
contrast, generally suggests a severe
adverse environmental effect. At used •
in the National Environmental Policy
Act (NEPA), an action "significantly"
affecting the environment triggers the
most rigorous of environmental reviews,
an environmental impact statement.
Similarly, under the Section 404(b)(D
Guidelines, any discharge that would
"significantly" degrade waters of the
U.S. is prohibited. Such a high
threshold is not appropriate where, as
here, the question is whether an activity
should be subject to regulatory scrutiny
under Section 404 at all.
Because commentors expressed
confusion regarding the application of
the phrase "decrease in functional
values" that was included in the
proposed rule, this phrase is not
included in the final rule. Nevertheless,
an evaluation of the functions of a water
of the U.S. is obviously relevant to
determining whether an activity may
cause an adverse effect on waters of the
U.S. For example, an area whose
functions include vegetation serving as
a food source or habitat for migratory
waterfowl would suffer a decrease in
that function by the alteration or
removal of vegetation. However, it is not
our intent to place on the Corps or EPA
a heavy burden of conducting a detailed
evaluation of the water's functions and
values and documenting how they :
would be impacted by an activity. Such
an inquiry is more relevant to the •
evaluation conducted by the Corps
under the Section 404(b)(l) Guidelines
and Corps regulations in the permitting
process itself. Again, we emphasize that
this is merely the threshold inquiry of
whether an activity should be subject to
regulation under Section 404 at all. We
believe it is sufficient for this purpose
that the Corps or EPA; as appropriate, .
evaluate the available information to
make a reasonable judgment of whether
an activity will adversely affect waters
of the U.S.
For similar reasons, we also disagree
with commenters who suggested that
the agencies should establish a scheme
for classifying the values of wetland
areas for purposes of this rule. The
• "value" of a water of the U.S. is again'
something that should be considered in
the permitting process when the Corps
determines whether a discharge
complies with the Section 404(b)(l)
Guidelines, and what type and level of.
mitigation is necessary to compensate
for the impacts of a project. We do not
view a detailed consideration of values
of an area to be necessary for the Corps
or EPA to determine whether an activity
would s'mply have an "adverse effect"
on a water of the U.S.
One commenter argued that the rule
should list the specific activities that
require a Section 404 permit based on
the type, location, and known impact of
the activities and also should identify
"de minimis" activities that will not
require a Section 404 permit. While
such a list might be ideal from the
regulated community's standpoint, the
types of activities that involve a
discharge and would destroy or degrade
waters of the United States are too
numerous and varied to list definitively.
They generally must be evaluated on a
case-by-cese basis. However, today's
rule does provide examples of several
activities that require a permit unless
the discharger demonstrates they would
not destroy or degrade waters of the U.S.
(i.e., mechanized landclearing. ditching,
channelization and other excavation in
waters of the United States).
Several commentors argued that the
agencies had failed to give the public
adequate notice of the meaning of the
terms "destroy" and "degrade" as
required by the Administrative-
Procedure Act. We disagree. Definitions.
of the terms "destroy" and "degrade"
were discussed in the preamble of the
proposed rule, along with a request for
public comment The definitions of
"destroy" and "degrade" in the final
rule reftect the proposal and the public
comments received. We believe that the
agencies have fully complied with the
Administrative Procedure Act's '.
rulemaking requirements.
One commentor felt that the
definitions of "destroy" and "degrade"
contradicted Section 101(g) of the CWA.
It is entirely unclear lo us how this rule
conceivably would be inconsistent with
Section 101(g), which provides that
State water rights will not be
superseded, abrogated, or impaired by
the CWA. This aspect of the rule simply
addresses what activities result in
discharges of dredged material requiring
a permit under Section 404 of the Act.
Merely subjecting activities to the
Section 404 permitting requirement
cannot, in and of itself, result in any
impact on allocation of water rights. The
substantive criteria for processing
Section 404 permits are not altered in
any way by this rule. ^
Two commenters believed that the
determination of degradation should be
the responsibility of the State agency to
ensure compliance with State water
quality standards. We disagree, since
the Corps and EPA are charged with
administering the regulatory
responsibilities of CWA Section 404.
Moreover, degradation of waters of the
U.S. will not necessarily be limited to
consideration of State water quality
standards.
2. Presumption That Activities Destroy
or Degrade "
The proposed rule also would have
established a rebuttable presumption
that mechanized landclearing, ditching,
channelization and other excavation
would result in the destruction or ,
degradation of waters of the United
States. See 33 CFR 323.2(c)(2); 40 CTR
232.2(e)(2). Some commenters
supported the proposed rebuttable
presumption because they felt these
activities virtually always cause adverse
impacts to the aquatic ecosystem.
Other commentors opposed the
presumption in the proposal on the
grounds that the government should
bear the burden for demonstrating that
it has jurisdiction over an activity.
These commentors cited the discussion
in the preamble to the proposed
revisions to the wetlands delineation
manual, in which the government stated
that it bore the burden of demonstrating
that it has geographic jurisdiction over
a specific area under the statue. These
commentors argued that such a burden
should also fall on the government here.
Some commentors contended that the
presumption would impose
unreasonable costs on project
proponents seeking to rebut the
presumption. Commentors also argued
that the presumption was based upon a
factual finding that these activities
virtually always destroy or degrade
wetlands, yet the agencies have not
provided record support for such a
conclusion beyond the reference to the
"experience" of the agencies in
administering the Section 404 program.
We believe that these commentors
have misconstrued the nature of and
basis of the approach in this
rulemaking. In the proposed rule, the
agencies stated that, in our experience.
mechanized landclearing, ditching,
channelization and other excavation
virtually always destroy or degrade
waters of the United States. While this
statement accurately describes our
experience, we are not relying on such
a factual finding to support the
approach in the final rule. Rather, we '
view the final rule as legally appropriate
in light of the language and structure of
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45022 Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / K.uies and Keguiauoua
Section 404, which prohibits the
discharge of dredged or fill material
except in compliance with a permit
under Section 404. In our view, the
addition or redeposit of any dredged
material into waters of the U.S.
associated with mechanized
landclearing, ditching, channelizaton
and other excavation constitutes a
"discharge," and is therefore prohibited
if no permit is obtained under Section
404, unless otherwise 3xempted under
Section 404(f).
The approach taken by the agencies in
this rule is to carve out a narrow
exception to the Section 404 permitting
requirement for certain discharges that
are associated with activities that have
only de minimis environmental effects.
We do not view this exception as
compelled by the Act. There is no
express de minimis exception in Section
404, and it would therefore be perfectly
consistent with the statutory scheme to
require that any person discharging
dredged material in the course of
mechanized landclearing, ditching,
channelization, other excavation or any
other activity to obtain a Section 404
permit, without regard to the effects of
the associated activity on waters of the '
U.S. Nonetheless, the agencies believe
that the better approach in this case is
to maintain a narrow exception for those
activities that have only a de minimis
effect on waters of the U.S. This
exception, as explained above, is
consistent with Section 404 and will
help improve the efficiency and
effectiveness of the program byfocusing
limited agency resources on activities
having more than inconsequential
environmental effects.
The language and structure of the
final rale have boen modified to reflect
the basis for the agencies' approach.
Firs!, the rule states that cny addition or
redeposit of dredged materials into
waters of the U.S. incidental to any
activity, including mechanized
landclearing, ditching, channelization
and other excavation constitutes a
"discharge of dredged material." 33 CFR
323.2(d)(l){i:i); 40 CFR 232.2(e)UKiii).
The rule therefore provides that a
Section 404 permit is inquired for the
incidental discharge unless the
discharger demonstrates to the Corps, or
EPA as appropriate, prior to tka
discharge, that the activity associated
with the discharge does not have or
would not have the effect of destroying
or degrading any area of waters of the
United States. Under the final rule, a
discharger bears the burden of
demonstrating that such activities will
not destroy or degrade the waters of the
U.S-., including wetlands. 33 CFR
323.2{d)(3)(i); 40 CFR 232.2(e)(3)(i). •
Given the language and structure of
the Act, we believe that the approach
adopted in the final rule is appropriate.
Under the CWA, a party wishing to
discharge dredged material into waters
of the U.S. can only do »o if it obtains
a Section 404 permit, unless otherwise
exempted. Therefore, if such a
discharger conducting mechanized
landclearing, ditching, channelization
or other excavation desires to proceed
without Section 404 authorization, we
believe that it behooves the discharger
to obtain an affirmative finding from the
Corps, or EPA as appropriate, prior to
the discharge, that the discharge is
subject to the de minimis exception.
Requiring dischargers to bear the burden
of demonstrating that its activities do
not require a Section 404 permit does
not, as some commentors have asserted,
place an unreasonable burden on the
discharger. Rather, since the discharger
would otherwise be-required to obtain a
permit for its activities, we beljeve that
it behooves the discharger to
demonstrate affirmatively that
mechanized landclearing, ditching,
channelization or other excavation
activities should be exempted from the
permitting requirement. Moreover, EPA
and the Corps would not feel
comfortable establishing a de minimis
exception for mechanized landclearing,
ditching, channelization or other
excavation activities without the
procedural protection of requiring an
affirmative finding prior to the
discharge by EPA or the Corps that the
exception is appropriate in a particular
case. This will ensure consistency in the
application of the exception and
guarantee that the exception is
interpreted in a manner consistent with
the purposes of the CM*A. Under the
final rule, dischargers conducting
activities other than mechanized
landclearing, ditching, channelization •
or other excavation which would not
destroy or degrade waters of the United
States (e.g., walking and vehicular
traffic) do not require a prior finding by
' the relevant agency that the activity can
proceed without obtaining a Section 404
permit. The agencies do not believe that
it would be practical, or an efficient use
of limited agency resources, to require a
prior determination ia such cases.
However, should any activity-
including activities other than
mechanized landclearing, ditching,
channelization or other excavation-
undertaken by a discharger in fact have
more than a de minimis effect on waters
of the United States, that discharger is
subject to enforcement action or citizen
suit for discharging without a Section
404 permit.
Some commentors objected to the
proposal of regulating only activities
that are associated with incidental
discharges where those activities
produce certain environmental effects.
These commentors felt that the agencies
should regulate any addition or
redeposit associated with mechanized
landclearing, ditching, channelization
and other excavation, regardless of its
impact on the aquatic environment. We
do not believe, however, that it would-
be an effective use of limited agency
resources to eliminate completely the de
minimis language in the current
definition of "discharge of dredged
material" so that ell incidental.
discharges would be regulated, without
regard to their environmental effect. The
underlying purpose of Section 404 is to
avoid, where possible, the degradation
of our nation's aquatic resources due to
discharges of dredged or £11 material,
and it is in keeping with that goal to
focus limited agency resources on
activities that hava more than a de
minimis effect on those waters. See
Alabama Power Co. v. Castle, 636 F.2d
323, 357-360 (DC Cir. 1979).
We also do not agree with one
commentor that there should be an
opportunity for an appeal to an
independent panel of a decision to .
require a Section 404 permit. The CWA
grants the Corps or EPA, as appropriate,
the authority to determine that a certain
activity is subject to the Section 404
permitting requirement. Allowing an
"appeal" at such'a preliminary stage in
the permitting process would not be in
accordance with the agencies' roles
under the statute, and would be
wasteful of limited agency resources.
Many commentors recommended that
the Corps specify the mechanism by
which project proponents may
demonstrate that their activity does not
require a Section 404 permit The Corps
district engineer and EPA Region, as
appropriate, will require the minimum
information necessary to conduct an
adequate evaluation of an activity's
impacts. The submittal to the Corps
district engineer will include, as
necessary, the following information: A
written description of the project; the
specific landclearing, ditching,
channelization, or excavation
techniques to be used; the equipment to
be used; the acreage and type of wetland
or other waters of the U.S. to be affected;
the extent and type of impacts
projected; the change or loss of wetland
functions and values that could be
anticipated from the activity; a project
location-vicinity map; the name,
address and phone number of the
applicant; and other site-specific
information requested by the district
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Federal Register J Vol. 58. No. 163 / Wednesday. August 25. 1993 / Rules and Regulations 45023
^^•_^^^^^^^^^^^^^^^^^^^^^^^^^^^^^•^•^^^^^^^•••••^^••••••^^•^^^•^^^••^•••^••^••^^•—.^—_^____
engineer. Based em this information, ths
Corps district engineer or EPA Region,
as appropriate, Mill determine, within *
.reasonable length of time, whether a
Section 404 permit is required.
One cominentor recommended that
the language -of the proposed rabuttable
presumption be modified to have the
nature end extent of the impact assessed
during the individual permit review
process. We agree with the intent of this
suggestion; however, no change is ,
necessary. If an individual Section 404
permit application is submitted, the
Corps will evaluate th e nature and
extent of the impacts of the activity and,
if appropriate, return the application if
nojjermitis required.
Finally, we do not believe that •
determination by the Corps or EPA that
a discharger must obtain a permit under
today's rule would be subject to judicial
review, since pre-enforcement review is
not available under the CWA. See e.g.,
Avella v. Corps, 20 ELR 20920 (S.D. Fla.
1990). affd 916 F.2d 721 (llth Cir.
1990} (holding that Corps finding that a
discharger could not proceed under a
general permit and had to obtain an
individual permit was not subject to '
judicial review).
3. Whether Specific Activities Will
Destroy or Degrade Waters of the U.S.
In the'preamble to the proposal, we
solicited public comment on whether
there were certain categories of .
activities which, as a general rule, did
not destroy or degrade waters of the U.S.
and which therefore would not come
within the scops of this regulation. We
address below comments that were
submitted on this issue.
Many commentors felt that the
modification of the definition of
"discharge of dredged material" was too
expansive and would result in the
regulation of such activities as walking.
grazing, vehicular traffic, and boating in
waters of the United States. Several
ether commentors indicated that they
believe vehicular traffic should be
regulated. As indicated above, under
today's rule, we are not regulating every
discharge associated with activities in
waters of the U.S., but only those
associated with activities which have or
would have the effect of destroying or
degrading any area of a water of the
Unitsd States. We believe that activities
such as walking, grazing) vehicular
traffic and boating (excluding prop-
dredging) in waters of the United States
would not generally be regulated under
this rule because, even if they do result
in discharges, they generally do not
destroy or degrade waters of the United
States. As discussed previously,
activities such as these do not require a
finding prior to the discharge that the
activity would not destroy or degrade
waters of the United States. If the effect
of the activity is de minimis, then •
Section 404 permit is not required.
One commentor stated tK*f the
following activities should be
categorically excluded from regulation
under Section 404: landciearing
activities -for the creation and
maintenance of utility line corridors;
mechanized landciearing in wetlands
that are seasonally, dry 01 frozen,
provided that cutting of brush tnd
timber occurs above the soil surface;
and use of corduroy roads in
constructing utility lines. Another
commentor said that activities
associated with the construction and
maintenance of powerUnes and '
distribution corridors should be
exempted from regulation under Section
' 404 because they do not destroy or
degrade wetlands. One commentor
suggested that routine maintenance of
, pipeline righu-of-way should not
require an individual permit since there
is no long-term impact on vegetation.
Another commentor stated that pipeline
construction on Alaska's North Slope
should be specifically identified as an
activity that should be excluded from
regulation under Section 404 because
the pipelines an elevated and
supported by pilings that result in only
temporary at minima discharges.
If a landdearing operation does not
disturb the toil. BO discharge occurs;
thus, such tcti viU« would not be
regulated (see 33 CFR 323.2(d)(l); 40
CFR 232.2{eK2)(iI)J. W« do not believe
that it would b* appropriate, as this
commentor has cugnstMi. to
categorically exclude from regulation
mechanized Undd«*nng to create
utility line or transmission line
corridors. Ai w» hiv* explained above,
where a discharge occurs, we believe
that it is appropriate for the discharger
to bear the burden of demonstrating that
a particular activity will not destroy or
degrade water* of the United States.
Pipelines that era normally built on
pilings and whnv BO landciearing or fill
pad construction Is required are
generally not regulated under Section
404. Similarly, we do not believe it is
appropriate to atrgoncally exclude
from regulation mechanized
landciearing in frozen or seasonally dry
wetlands. While we agree with the
commentor that cutting of brush and
timber in wetlands above the soil's
surface doe* not normally result in a
redeposition of soil (see 33 CFR
323.2(d)(l)(ii); 40 CFR 232.2(e)(2)(ii)). as
described in today's preamble at section
m(c), mechanized landciearing usually
results in a discharge of dredged
material, and the commentor has
provided no basis for concluding that
mechanized landciearing in seasonally
dry or frozen wetlands will never result
in such a discharge. We therefore do not
believe there is a basis to exclude
categorically such areas from the scope
df this rule. Where a regulated discharge
occurs, it is subject to this rule,
regardless of the type of water of the
U.S. in which it occurs.
in response to the bommentor's
request that corduroy roads, (i.e.. roads
which are created by placing cut timber
and brush along the centerUne of a
utility line corridor through a wetland
without the addition of dirt or rock fill).
should be excluded from Section 404
regulation, we agree that this activity
generally does not constitute a discharge
of dredged material However, this
activity may constitute a discharge of
fill material, and require Section 404
authorization. The agencies cannot, as
suggested by this commentor.
administratively expand the statutory
exemptions for farm, forestry and
mining roads to include corduroy roads
used for utility line construction
unrelated to fanning, forestry, or mining
operations.
Other activities that commentors
contended should be excluded from
regulation are: Maintenance of flood
control structures according to design
specifications; public health and safety
projects; activities associated with the
maintenance of natural or mitigated
wetlands; construction or repair of
water diversion structures to divert
water under state water rights, where
there is only a minor amount of
excavation with temporary, minimal
impacts; maintenance dredging of
cooling water intake channels; dredging
operations in wetlands; the creation of
stormwater retention/detention basins
for residential construction which
involve only de minimis soil movement
that should not destroy or degrade
wetlands; certain wetland wildlife
management activities, including
wetland wildlife enhancement work and
gravel placement In river channels to
serve as salmon spawning habitat; and
excavation in a dry streambed or similar
areas, which will not cause destruction
or degradation of a water of the United '
States.
We do not agree with these
commentors that these activities would,
as a general rule, not result in
discharges of dredged material that
would destroy or degrade waters of the
U.S. For example, a category of
activities such as "public health and
safety projects" relates to the purpose of
the activity, not to whether it causes
additions or redeposits of dredged
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45024 Federal Register / Vol. 58. No. 163 / Wednesday, August 25, 1993 / Rules sad Regulations
material or whether it will destroy or
degrade waters of the U.S. Activities .
associated with the maintenance of
natural or mitigated wetlands might
have an overall purpose of benefiting
the environment, but may nonetheless
cause certain adverse effects warranting
review under Section 404. Such
activities may be addressed through
minim-il environmental impacts.
Similarly, we do not believe that there
is a basis for concluding that the other
activities listed by this commentor will
not destroy or degrade waters of the
United States. However, some of these
activities are authorized by existing
nationwide and regional general
permits. In addition, to the extent
construction or repair of water diversion
structures involve the construction or
maintenance of irrigation ditches or the
maintenance of drainage ditches, such
activities may be exempt under Section
404(f) of the Act.,Furthermore, we do -
not believe that today's rule will greatly
burden the regulated'public because, to
the extent they involve minimal
environmental impacts, the Corps will
consider issuing'general permits to
regulate those activities.
Two commentors requested that the .
nationwide permits not be subject to the
presumption and demonstration
requirements of Section 323.2(d)(2).
They rwcommended adding to
§ 323.2(d)(2), as follows: "(2) For the
purposes of paragraph (d)(l),
mechanized landclearing, ditching.
channelization, or other excavation
activities in waters of the United States
result in a discharge of dredged
material. Further, where such activities
occur in waters of the United States and
are not authorized under the
« Nationwide Permit Program at part 330,
the activity is presumed to result in
destruction* * "."We do riot agree
with the thrust of this comment. The
tests in this rule go to the question
whether an activity results in a
discharge of dredged material requiring
a permit under Section 404. By
definition, activities already covered by
a Section 404 permit (including
nationwide permits) are subject to
regulation. The scope, applicability and
potential use of nationwide permits is
not a£fucted by today's rale. Those
excavation activities that destroy or
degrade waters of the U.S. but only have
minimal adverse environmental effects
rr.ey qualify for coverage under a
nationwide permit. Corps districts are
encouraged to develop general permits
for those classes of mechanized
landclearing. ditching, channelization,
and other excavation that arc
determined to have only minimal
individual and cumulative advene
•effects.
Several commentors' addressed
discussion in the preamble to the
proposed rule regarding "wnageing."
which we stated included "the removal
of trees, parts of trees, or the like, from
a water body to prevent their interfering
with navigation." We concluded that
such activities generally would not'
result in a discharge and therefore
would not be subject to Section 404,
unless in a particular case, the snagging
operation would result in a discharge
through redeposition of soil and would
destroy or degrade a water of the United
States. Some commentors agreed that
snagging operations, such as the
removal of trees and tree parts from
streams, should be regulated. Two
commentors stated that all snagging
operations should be regulated. Another
commentor asserted that snagging,
especially in waters only subject to
Section 404 jurisdiction and where
Section 10 permits are not required,
should be regulated because it involves
a discharge and will result in significant
adverse impacts to wetlands and water
quality. One commentor suggested that
the exclusion for snagging should be
more narrowly defined to allow removal
of tree and tree parts only where there
is interference with navigation or where
they are likely to obstruct normal stream
flow. Several commentors expressed
concern that the new proposed rules
would negatively affect flood control
activities, such as snagging and
dredging, by requiring Section 404
permits. Two commentors stated that an
exemption to Section 404 is needed for
the maintenance of flood control
projects that involve the removal of
vegetation. " ,
We have carefully considered these
comments and believe that qualifying
the term "snagging" in the proposal to
include only the removal of trees and
tree parts where that removal is to
prevent their interfering with navigation
is not appropriate. Therefore, for
purposes of today's preamble, we are
eliminating that qualification (i.e..
prevention 'of interference with
navigation). The determination of
whether an activity involves a discharge
of dredged material is not based on the
intent of the activity; instead, that
determination turns on whether there is
any addition or redeposit of dredged
material into waters of the United
Steles. Where only vegetation is
removed during a snagging operation
arid no discharge of dredged or fill
material occurs, a permit is obviously
not required. Consequently, snagging
operations will only be regulated when
they would result in incidental
discharges through redeposition of soil
and the activity would destroy or
degrade waters of the United States. For
this reason, we do not agree with the
commentor who suggested inclusion of
an additional qualifier (i.e., snagging
only includes removal of trees or tree
parts where they are likely to obstruct
normal stream flow).
While today's rule may affect those
flood control projects that involve
snagging operations that result in
discharges of dredged material by
requiring authorization under Section
404, some such activities may already
be exempted under sections 404(f)(l) (B)
and (C), and others may be covered by
current general permits. Also, in some
cases, general permits may be developed
where the adverse environmental effects
of certain snagging operations that
involve a discharge of dredged material
into waters of the United States are
determined to be minimal.
Several commentors expressed
concerns that the regulation of
excavation would affect normal
drainage practices around small isolated
wetlands that allegedly have little or no
value. It is unclear what this commentor
means by normal drainage practices.
Section 404(f) provides an exemption
for maintenance of existing drainage
ditches, and such practices would
therefore not be affected by today's rule.
'To the extent they are not exempt, such
activities in small isolated wetlands
may also be authorized by nationwide
permit number 26 or other general
'permits. In general, however, we believe
that the approach suggested by the
commentor is overboard. Small isolated
wetlands can bo of great cumulative
importance to the aquatic ecosystem.
Categorically exempting drainage
activities in these areas from Section
404 of the Act would therefore not be
warranted or appropriate.
Two commentors stated that it was
unclear how commercial sand and
gravel dredging operations would be
regulated and wanted exemptions for
such operations. Several commentors
wanteimining exemptions for the
removal of overburden and sand and
gravel mining operations in intermittent
streams. While we appreciate these
concerns, we believe that an exemption
would be inappropriate for this type,of
activity since sand and gravel
operations do involve excavation
activities in waters of the U.'S. and there
is no basis to conclude categorically that
these activities will not destroy or
degrade waters of the U.S. Indeed, most
mining activities result in significant
alteration of the aquatic environment
since their very purpose is to remove
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Federal Register 7 Vol. 58. No. 163 / Wednesday. August 25. 1993 / Rules and Regulations 4502
overburden and substrate materials, and
such activities generally would
therefore have an identifiable adverse
impact on the aquatic.environment We
have, however, decided to include a
grandfather provision for mining
activities that have not been regulated
prior to the adoption of this rule to
allow time for operators to obtain the
necessary permits end for the Corps to
consider development and issuance of
general permits for raining activities
that have minimal individual and
cumulative impacts.
. One commentor'expressed concern
that the rule would regulate "normal
reservoir operations."; Such activities
below the ordinary high water mark of
a reservoir will often require Section
404 authorization; however, districts
msy develop regional1 general permits to,
authorize certain activities with '
mmtaal impacts, as appropriate.
Or.e commentor expressed concern
that the new regulations would
discourage developers from creating
stcrmwater manessinent ponds through
the excavation of existing wetlands. The
agencies note that today's rule is not
meant to "discourage" activities that
; comply with the Section 404(b)tl)
Guidelines, including tho construction
of appropriate stormwster management
ponds. Under today's rule, the creation
of stormwater management ponds,will
be regulated under Section 404 to $fae
extent that such creation involves a
discharge of dredged material incidental
to excavation activities which destroy or
deg-sde wetlands or other wPters of the
United States. However, this does not
" mesn these activities ere prohibited,
only the*, they require Section 404
authorization. As part of the permit
evaluation .process, the agencies will
evaluate whether the proposal to
excavate an existing wetland to create a
storinwaler management pond is the
least environmentally damaging ^
practicable alternative, and whether all
appropriate actions have boojn taken to
mi nirn ize impacts to the aquatic
ecosyst em, and whether other Section ^
404 permitting criteria are met.
Moreover, to the extent creation of
stcnmvBter management ponds require
the construction of dikes or berms, such
activities would be regulated as a
discharge of fill material, regardless of
today's rule. ,
Several camm,?r.tors indicated we
should regulate the pumping of water
because pumping water from a wetland
has the same effect as draining, and,
according to this comfnentor, "the
impart of draining would be considered
en identifiable decrease" in functions
and values of waters of the U.S. We
believe that pumping water from' a
wetland or other waters of the United
States would not, in and of itself.
necessarily result in a discharge of
dredged material. See Save Our
Community \.EPA, 971 F.2d 1155 {5th
Cir. 1992). However, if excavation
would be necessary to accomplish the
pumping and the activity would destroy
or degrade a water of the United States,
then the discharge activity would be
regulated under Section 404. Further, if
the pumping resulted in a discharge of
other pollutants to a water of the United
States, such a discharge would be
regulated under .Section 402 of the
CW A. Section 4O4 covers only
discharges of dredged or fill material.
We do not believe that simply placing
a pipe into a water of the United States.
per se, would necessarily involve a
regulated discharge. '
One commentor indicated that the .
deepening and widening of existing
ditches should "be regulated.
Maintenance of existing drainage
ditches are exempted from the permit
requirement under Section 404(f)(l)(C).
provided the original dimensions of the
drainage ditches are not increased.
Those excavation activities in drainage
ditches that deepen or widen an existing
drainage ditch beyond the original
dimension do not oualify for an
exemption and, if they would expand
the carrying capacity of .the ditch, would
likely altar the hydrological regime of
adjacent areas, and therefore result in
degradation. • •
Some commentors indicated that they
believe that many excavation activities •
are beneficial to the environment and •
result in increased aquatic functions
end values, including excavation for
purposes of stormwater management
and maintenance of ditches, and were'
concerned that many such activities will
be regulated under Section 404.
However, even though these activities
may have some beneficial effects, they
can still have adverse effects by, for
example, altering the hydrology of an
area of the water of the U.S. Therefore.
they may be covered under this rule.
However, the Corps will consider the
use of general permits where such
environmentally beneficial activities
otherwise result in minimal impacts. In
addition, particular cases where the
applicant can demonstrate that the
activity would not destroy or degrade a
water of the United States would not be
regulated under Section 404.
One commentor indicated that the
preamble should clarify that the
excavation of wetlands to place drainage
tiles should be regulated under Section
404 since this involves a discharge and
destroys wejlands. The excavation of
wetlands to place drainage tiles is
currently regulated under Sflction 404
unless such activities qualify for a
Section 404(fl exemption. Activities that
involve replacing existing field drainage
tiles where the replacement does not
increase the extent of drainage beyond
that provided by the original tiling
would generally qualify for such an
exemption.
E. Normal Dredging Operations
' Many commentors suggested that all
discharges of dredged material should
be regulated, stating that it does not
seem reasonable or consistent to
exclude discharges incidental to
"normal dredging operations" .for
navigation, while regulating excavation
for non-navigation purposes. One
commentor stated that the proposal was
extremely confusing because, while the
preamble discussed eliminating the de
minimis exemption, the proposed rule
mentioned exemptions for certain de :
minimis activities. The commentor
stated that the proposed rule has created
a disparity with respect to excavation in
waters of the United States versus
normal dredging operations in navigable
waters of the United States. Several
commentors stated that, contrary to the
explanation that normal dredging
operations "generally do not alter the
reach or flow or circulation of the
waters, nor do they convert waters of
the United States into dry land or
degrade wetlands." these operations do
in fact have negative impacts. These
commentors further cited specific
examples, including increased
sedimentation, changes in salinity, loss
of habitat, alteration of flows, changes in
circulation and lowered dissolved
oxygen concentrations. Two
commentors stated that the exemption
for normal dredging operations to
maintain navigation is acceptable so
long as the term "navigation channel" is
clearly defined as that type of channel
capable of carrying commercial traffic.
However, those commentors stated that
the extension or deepening of
navigation channels should be regulated .
under Section 404. .
Today's rule clarifies that "normal
dredging operations" will continue to be
excluded from the definition of
"discharge of dredged material."
"Normal dredging operations" are
defined as "dredging for navigation in
navigable waters of the United States, as
that term is defined in part 329 of this
Chapter, with proper authorization from
the Congress and/or the Corps pursuant
to part 322 of this Chapter; however,
this exception is not applicable to
'dredging activities in wellanas, as that
terms is defined at 8 32B.3 of this
Chapter" (33 CFR 323.2(d){3)(ii)).
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45026 Federal Register / Vol. 58. No. 163 / Wednesday, August 25. 1993 / Eules and Regulations
There are several reasons for
continuing to exclude incidental soil
movement occurring during "normal,
dredging operations" from the
regulatory definition of "discharge of
dredged material." The overriding goal
is to ensure that discharges of dredged
or fill material into the waters of the
United States are regulated in a
satisfactory manner. In light of this goal,
the Corps, BS well as all other Federal
• or private dredging entities, fully
comply with the regulatory
requirements of the Section 404 process
for any and all disposal of the dredged
material removed from the navigation
channel during dredging end discharged
in the waters of the United States,
whether that dredged material has been
generated by Corps or other dredging
operations. Furthermore, the Corps
cpplibs for state Section 4tfl water
quftljty certifications and any required
s'stc permits for these disposal
activities.
The Corps has established a two-part
regulatory framework for the actual
dredging portion of its own normal
dredging operations. Prior to conducting
cny normal dredging operations for
Corps dredging projects, the Corps must
comply fully with its Operations and
Maintenance dredging regulations. (33
CFR 209,335,336,337, and 338.) These
inhalations were developed by the
Ccrps in 1986 specifically to address
environmental and other aspects of
norms! dredging operations on the
waters of the United States. Pursuant to
these regulations the Corps must fully
comply with NEPA, the Clean Water
Act, including Section 401, the Coastal
Zone Management Act, the Endangered
Species Act, the Fish and Wildlife
Coordination Act, the Marine Protection
Research and Sanctuaries Act, and all
other applicable environmental laws.
Furthermore, each time a federally
authorized navigation channel is
designated or modified. Congress, in
effect, conducts a public interest review
through the authorization process. This
provides another safeguard that the
subsequent normal dredging operations
to maintain these channels are in the
best interests of the Nation.
The procedure is different for those
normal dredging operations conducted
by other Federal agencies or non-
Federal entities. The Corps requires that
these dredgers apply for a Section 10
Rivers and Harbors Act permit. The
Section 10 permit process includes an
extensive public interest review
pursuant to which any adverse impacts
of the proposed dredging are fully
discussed and analyzed. The Corps
must ensure that NEPA..CWA Section
401, the Coastal Zone Management Act,
the Endangered Species Act, the Fish
and Wildlife Coordination Act, the :
Marine.Protection Research and
Sanctuaries Act, and all other applicable
Federal environmental laws are
complied with prior to granting a
Section 10 permit.
Considenng these various types and
levels of review, the Corps and EPA
have concluded that it would not be in
the public interest to require that the
Corps, other Federal agencies, and
private entities also be required to
secure a Section 404 permit for each
normal dredging operation. This process
would be resource intensive and
duplicative, and would only serve to
divert limited Corps and EPA resources
away from permit applications that
deserve our careful scrutiny.
Additionally, the Corps and EPA
believe that this is an appropriate
approach because, as a general rule,
normal dredging operations Which have
been subjected to the above regulatory
process and associated environmental
safeguards do not have a substantially
adverse effect on the aquatic
environment. It may be true, as some
commentors have stated, that normal
dredging operations can, in some cases,
cause changes in sedimentation,
salinity, habitat, flows and circulation
patterns, and dissolved oxygen
concentration. However, the Corps and
EPA believe that these impacts are
adequately addressed as part of the
regulatory and congressional review
.processes described above and do not
warrant the additional scrutiny of the
Section 404 regulatory process.
As stated above, two commentors
agreed that normal dredging operations
conducted in Federal (Corps of
Engineers) navigation channels should
not be regulated under Section 404;
however, these commentors argued that
any'deepening or extension of these
channels should.be regulated under
Section 404. We disagree, and see no
reason to distinguish between normal
dredging operations, on the one hand,
and channel deepening or extensions,
on the other hand. For one thing,
Congress must authorize any major
extensions of, and any deepening of,
any Corps Federal navigation channel.
Through this authorization process,
Congress is responsible for determining
whether it is in the public interest to
conduct these activities. Moreover,
Federal agencies and non-Federal
entities must apply for a Section 10
permit for any project to extend or
deepen a Federal navigation channel.
The Corps' and EPA s position that
incidental soil movement associated
with normal dredging operations does
not constitute a discharge under Section
404 is specifically addressed in the
Corps' regulations at 33 CFR 323.2.
Since 1977, the Corps has consistently
held that Section 404 does not apply to
incidental soil movement during normal
dredging operations. We continue to
believe that "normal dredging
operations" to maintain or deepen
navigation channels in the navigable
waters of the United States, with proper
authorization from the Congress and/or
the Corps under Section 10, will not
result in significant environmental
impacts affecting the reach or flow or
circulation of the waters, nor do they
convert waters of the United States into
dry land. The definition of "normal
dredging operations" excludes dredging
that takes place in wetlands. We made
this exclusion to reflect the fundamental
purpose of the normal dredging
operations exception, which is to allow
for the maintenance of navigation
channels. We believe it would be a rare
and exceptional circumstance for a
party to propose dredging wetlands for
purposes of navigation. If such an
exceptional case were to arise, however,
we believe that the activity should be
evaluated under Section 404 in light of
the special functions' and values of
wetlands that Section 404 is specifically
designed to address.
As we stated in the proposed rule, it
is our desire to avoid duplicative
regulation of dredging itself in waters
within the jurisdictional scope of the
Rivers and Harbors Act. Normal
dredging operations in the navigable
waters will continue to be regulated and
evaluated under Section 10 of the Rivers
and Harbors Act of 1899.
F. Section 404(f)(l)(A) Exemptions
Several commentors expressed
concern that the language of the
proposed rule might be construed as
weakening the exemptions provided for
normal farming, silviculture, and
ranching activities under Section
404(f)(l)(A). A few commentors urged
the continued exemption for normal
farming and forestry practices as
provided in Section 404(f). Many
commentors requested clarification that
the 404(f)(l) exemptions would not be
affected by the new regulations and
some requested that the following
language be added to the rule: "The
term 'discharge or dredged material'
does not include activities defined in 33
CFR 323.4(3)." One commentor
requested assurance by suggesting
changing § 323.2(d)(2) to state that the
existing exemptions of Section 404(f)
are not presumed to have the effect of
destroying or degrading waters of the
United States. A few commentors stated
that § 323.2(d)(l) be amended to read
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Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations 45027
"the term does not include the activities
defined in §323.4(a)(lH6)." We
disagree that any further clarification is
necessary. As indicated in the Preamble
of the proposed rule, this rule does not
change, in any way, the manner in
which the Corps and EPA determine
. whether an activity is exempt under
Section 404(0 of the CWA. Therefore,
this regulation will not, in any way, "
affect the exemptions for normal
agriculture, silviculture or ranching
activities now provided by Section
404(f)(l)(A) of the CWA, or any of the
other exemptions found in Section
404(0(1).
As part of today's rule, the agencies
have also made an additional minor
revision to the Corps' definition of
"discharge or dredged material" which
would make EPA's and Corps'
definition consistent with each other
and conform the definitions to the
language and intent of'Section 404(f).
The EPA' pre-existing definition
expressly excludes "plowing,
cultivating, seeding and harvesting for
the protection of food, fiber and forest
products." 33 CFR 323.2(d). EPA's
current definition, by contrast, does not
contain this exclusion, see 40 CFR
232.2(e), although the proposal would
have added the Corps' language in
EPA's definition. The final rule deletes
this exclusion entirely, from the
definition of "discharge of dredged
material" because it has created
confusion with regard to the effect of
today's rule on the Section 404(f)
exemptions. .
This exclusion in the Corps'
regulation predates the adoption of
Section 404(0 in the 1977 Amendments
to the CWA. Clean Water Act of 1977,
Public Law No. 95-217, 91 Stat. 1566
(amending 33 U.S.C. 1251-1376).
Section 404(0(0(A) expressly lists these
activities as examples of normal
> farming, silviculture, and ranching
activities exempt from Section 404.
unless the activities would be
recaptured under Section 404(f)(2). The
exclusion of these activities from the
definition of "discharge of dredged
material" is broader than the exemption
in Section 404(0 because, under the
Corps' regulatory definition, these
activities would never require a Section
404 permit, even if they would have
effects "recapturing" the activities
under Section 404(0(2). Since Congress
expressly stated in Section 404(0 that
discharges associated with these
activities require a permit if they would
be recaptured under Section 404(f)(2),
we believe that the exclusion in the
current rule should be deleted in order
to be consistent with Congressional
intent in this area. The Corps and EPA
reiterate that today's rule, including
deletion of this sentence, has no effect
with regard to the scope and , .
applicability of the Section 404(0
exemptions. This is further emphasized
in the rule at §§ 323.3(d)(3)(iv) and
232.2(e)(3)(iv). Under Section 404(0(1),
discharges of dredged or fill material
associated with certain activities,
including normal farming, ranching,
and silviculture activities, are exempt
from the Act's permit requirement,
provided that they are not "recaptured"
under Section 404(0(2).
G. Grandfather Provision
Numerous commentors requested that
the Corps and EPA include a
grandfather provision as part of the
revised definition of "discharge of
dredged material." In light of these
comments and consistent with past
Corps practice, the Corps and EPA have
included such a provision in this part of
the final rule.
By including a grandfather provision •
here, the Corps and EPA are intending
to avoid application of the revised
definition of "discharge of dredged
material" in a manner that would
frustrate the reasonable expectations of
persons who, as explained below,
justifiably relied on the previous
definition of that phrase as interpreted
by the regulatory agencies. At the same
time, however, we are also mindful of
the goals of today's rule and the overall
goals of the Clean Water Act.
. Therefore, we have developed
procedures to "grandfather" certain
"discharges of dredged material" that,
in some Corps districts, were not •
considered to be subject to regulation
under the previous definition of that
term. Under these procedures. Section
404 authorization will not be required
•for discharges of dredged material
associated with ditching, channelization
and other excavation activities in waters
of the United States where such
discharges were not previously
regulated and where such activities had
commenced or were under contract
prior to the date of publication of this
final rule in the Federal Register, and
where such activities are completed
within one year from, the date of
publication of the final rule. This
provision does not apply to discharges
associated with mechanized
landclearing because the Corps current
policy (reflected in RGL 90-5) has
generally subjected this activity to
Section 404 regulation. To further
ensure that implementation of the
revised definition proceeds in a fair and
equitable manner, the Corps will be able
to extend the one-year grandfather
provision on a case-by-case basis subject
to the following three conditions: (})
The excavation activity is of a type that
occurs on an ongoing'basis, either
continuously or periodically (e.g.,
seasonally); (2) the discharger submits a
completed individual permit
application to the Corps within one year
from the date of publication of this final
rule; and (3) the total time period within
which the excavation activity proceeds
subject to this grandfather provision
does not exceed three years from the
date of publication of today's rule. The
agencies recognize that the revised
definition of "discharge of dredged
material" is likely to apply to some
persons who have been engaging in
ongoing excavation activities, such as
some mining or sand and gravel
operations, which given their ongoing.
nature on either a continual or periodic
basis, will not be able to be completed
within one year from the date of
publication of today's rule. Therefore, in
situations where persons engaged in
excavation activities'occurring on an
ongoing basis have acted in good faith
by submitting a complete individual
permit application seeking Section 404
authorization for such activities no later
than one year from the date of
publication of this rule, the agencies
believe it is appropriate to retain
sufficient flexibility to ensure that such
persons are not prevented from
proceeding with these excavation
activities pending the evaluation of a
Section 404 permit application for the
'discharges associated with the activity.
The agencies have further determined
that a grandfather period not to extend
beyond three years from publication of
today's rule is sufficiently long to
ensure fair and equitable treatment of
the regulated community in a manner
consistent with the environmental goals
of this rulemaking and the Clean Water
Act Moreover, discharges associated
with activities that were regulated by a
particular Corps district prior to the
promulgation of this rule will not be
subject to the grandfather provision in
the regulation. If a discharger is
uncertain whether its activity was
regulated by the Corps district in which
the discharge would take place, the
discharger should contact the Corps
district. Finally, the grandfather
provision does not apply to landclearing
activities, since the Corps has
interpreted currant regulatory
provisions as covering mechanized
landclearing under the Section 404
program since 1990. See RGL 90-5.
H. General Permit Comments
We invited public comment to
identify mechanized landclearing,
ditching, channelization, or other
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Federal Register / Vol. 58, No. 163 / Wednesday. August 25. 1993 / Rules and Regulations
excavation activities that would
generally have minimal environmental
impacts and therefore be potential
candidates for authorization under
general permits. Several commentors
suggested activities that ore either
exempt from regulation or already
covered under the nationwide general
permit program. Several commenlors
suggested that activities having minimal
environmental impacts should be
authorized by general permits, but they
did not give specific candidate
activities. Another coramentor indicated
that all activities should be regulated on
a case-by-case basis. Several activities
were suggested for authorization by
general permits. These include all
mechanized landclearing; mechanized
landclearing in seasonally dry or frozen
wetlands where brush and timber
culling occurs above the soil surface;
landclearing for creation and
maintenance of utility line or overhead
transmission line corridors; water
diversion structures constructed to
exercise water rights; activities when
states already have effective regulatory
controls; discharges incidental to
dredging or excavation to improve fish
and/or wildlife habitat or to restore
previously filled wetlands; excavation
in dry streambeds; use of a hydroax to
clear vegetation; creation of stormwater
retention/detention basins for
residential construction; and sand and
grsvel mining activities having minor
impacts.
The general permit program is an
extremely important regulatory tool
general permits will be proposed by
public notice to obtain public comment
before a decision is made whether to
issue such nationwide or regional
general permits.
IV. Revision to Definition of "Discharge
of Fill Material;" 33 CFR 323.3(c) and
40CFR232.2(r)
We have organized the numerous
comments on the regulation of pilings as
fill material into several issues. Our
discussion of the comments is provided
below.
used by the Corps to regulate efiectively
activities with minimal impacts on the
aquatic environment. The Corps does
not have the resources to regulate all
activities on a case-by-case individual
permit basis. Therefore, we must focus
our resources on those activities with
more than minimal impacts. Moreover.
general permits ere very effective in
protecting the aquatic environment,
because they are issued with stringent
conditions that limit authorized
activities to those with minimal adverse
effects. This regulation may increase the
number of discharges regulated by the
Corps nationwide. In order to
administer reasonably the regulatory
program and protect effectively the -
environment, the Corps will identify
those activities with minimal impacts
and pursue development of general
permits. We appreciate the suggestions
made and will consider them for
possible issuance as nationwide or
regional general permits in the near .
future. Any proposed nationwide
permits will be published in the Federal
Register iand any proposed regional
A. Summary of Major Issues and
Changes From the Proposal.
Many commentors supported the
proposed revisions on the grounds that
the regulation of the placement of
pilings as a discharge of fill material
was necessary under Section 404 to
ensure that adverse impacts to wetlands
and other aquatic resources are
minimized. Many of these commentors,
as explained in more detail below, also
argued that the placement of pilings
should be regulated as a discharge of fill
material in all circumstances, and that
the proposed revisions contained
unnecessary and unjustified limitations
and exceptions. Other commentors
contended that EPA and the Corps
lacked the authority under the CWA to
regulate the placement of pilings as fill
material. Concerns were also raised by
commentors that the terms used in the
proposed revisions were not adequately
defined by the agencies.
Based upon public comments, tne
agencies have made certain changes to
the language in the regulations to clarify
when the placement of pilings
. constitutes a discharge of fill material
subject to regulation under Section 404.
.Under the final rule, the placement of
pilings in waters of the United States
shall require a Section 404 permit when
such placement has or would have the
physical effect of a discharge of fill
material. .
The agencies have made two major
changes to the rule in response to public
comments. First, we have deleted the
"functional use and effect" test in the
proposed rule. In addition, the final rule
does not contain an exception for
structures "traditionally constructed'
on pilings. For the reasons explained
further below, we agree with
commentors who argued that the
physical effect of the placement ol
pilings (as opposed to its functional use.
or whether the structure was
traditionally placed on pilings) should
be the focus for determining when
placement of pilings constitutes a
discharge of fill material. We recognize.
bowever. that some projects generally
use pilings in a manner that does not
result in the same physical effect as the
placement of fill material.
Consequently, the final rule notes that
placement of pilings for these projects
(i.e.. linear projects, piers, wharves, ami
individual houses on stilts) generally do
not have the effect of a discharge of fill
material and therefore a Section 404
permit will generally not be required for
these projects. The Corps and EPA.
nevertheless, reserve the right on a case-
by-case basis to determine that the
proposed placement of pilings to
support a particular linear project or a
particular pier, wharf, or individual
home on stilts does have or would have
the effect of fill material and therefore
requires Section 404 authorization.
B. Need for Regulating Pilings Having
the Effect of Fill
The Corps adopted RGL 90^8 in order
to address projects placed on pilings in
waters of the U.S. that would have the
kinds of adverse environmental
consequences generally-associated with
discharges of fill material, but which
were riot subject to any environmental
review under Section 404 to avoid or
mitigate those adverse effects. For
example, in one case, a developer
proposed a large, multi-use high rise
waterfront complex which would have
covered over 16 acres of the East River
in New York. The developer proposed
an unconventional construction
method, using pilings instead of solid
fill to support the 16 acres of structures.
The developer apparently pursued this
course of action in order to try to avoid
the necessity of obtaining a Section 404
permit. To provide the necessary
structural support, the pilings would
have been so large and so closely spaced
that they would have physically
displaced over 20% of the bottom
surface area and the water column. In
addition to the physical displacement of
aquatic habitat due to the
extraordinarily dense spacing, the
project would have substantially altered
current and sedimentation patterns such
that at least some of the covered area
would have silted in and eventually lost
its character as a water of the U.S.
In another case, a 13-acre hotel/office
development project was proposed to be
constructed in palustrine forested
wetland in New Jersey. This wetland
was identified as habitat for more than
80 species of birds, including numerous
migratory birds that had witnassed
decreasing population numbers due to
fragmentation and loss of habitat. The
developer originally proposed that the
project be built on fill material, which
would have required a Section 404
permit, but subsequently proposed to
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build virtually the identical project on
12-16 inch diameter pilings. While the
pilings did not need to be spaced
densely to support the structure, as in
the East River situation, the platform
supporting the 13 acre development
would have rested from 3 indies to
approximately one foot above the
wetland. The project would therefore
have prevented sunlight from reaching
almost all of the 13 acres of wetlands
underneath the structures, thereby
making wetland vegetation growth
impossible and causing the area to lose
virtually all of its wildlife habitat value.
The project also would have contributed
to soil erosion by killing vegetation that
provide soil stability, resulting in
interference with the site's natural flood
protection function, and impairment to
downstream water quality. Ultimately;
the developer decided not to pursue this
project. .
In both of these cases, the
environmental effects of the projects
would have been severe, comparable in
many respects to the effects that would
have resulted had the projects been built
on fill material. Adoption of RGL 90-8
reflected the Corps' belief that allowing
such projects to proceed without any
environmental review under Section
404 would not be consistent with the ,
foals ar.d objectives of the CWA or
ection 404. Regulating pilings when
the project would have the effect of fill
will therefore help insure that
potentially damaging activities
constructed on pilings in waters of the
United States are reviewed under
Section 404.
C. Comments on Agencies'Legal
Authority To Promulgate This Aspect of
the Regulation
Several commentors argued that EPA
and the Corps lack legal authority under
the Clean Water Act to issue the
proposed regulation. These
commentors, however, did not cite any
provision of the statute or discussion in
the legislative history to support this
contention; they simply asserted that
placement of pilings having the effect of
fill was not the seme thing as a
discharge of fill material itself. We
believe, however, that today's rule is a
reasonable exercise of our authority
under the statute.
The CWA does notidefine the term,
"fill material." Nor does the CWA
specifically address, in any manner
whatsoever, whether the placement of
pilings in waters of the U.S. is a
discharge of fill material subject to
Section 404 of the Act. Therefore, it is
up to EPA and the Corps to determine
a reasonable regulatory approach to this
activity, consistent with the language
and purposes of'the CWA. We have
made what we believe to be a very
straightforward determination here that
placement of pilings is a discharge of fill
material when it would have the effect
of fill material on waters of the U.S. The
agencies believe that this approach is
entirely consistent with the language of
the Act, and helps effectuate the
underlying goal of the statute of
protecting our nation's aquatic
resources.
.Several commentors requested that
we not pursue this rulemaking but
instead wait to see how Congress
addresses pilings in the upcoming
reauthorization of the CWA. Because
this rule is entirely consistent with
existing statute, we see no reason to
delay promulgating this rule.
One commentor argued that there is
no justification for regulating certain
pilings under Section 10 of the Rivers
and Harbors Act, but not regulating
them as "fill" under the Clean Water
Act, when the pilings are placed in
waters subject to jurisdiction of both
Acts. This commentor also suggested
that Section 10 jurisdiction does not
substitute for Section 404 jurisdiction.
Today's decision to define fill material
under Section 404 to include the
placement of certain pilings is not in
any manner related to the regulation of
pilings under Section 10. Section 10
establishes an independent regulatory
program that regulates any work, among
other things, in navigable waters that
affects the navigable capacity of those
waters. Regulatory jurisdiction under
Section 10 does not depend to any
degree on whether the work involves a
"discharge of fill material." Therefore.
we do not believe, as this commentor
does, that the scope of activities
regulated under Section 10 of the Rivers
and Harbors Act and Section 404 of
CWA must be the same.
D. Establishment of "Effects" Tests and
Exceptions to the Regulation of the
Placement of Pilings as Fill Material
The proposed rule contained language
that would have regulated the
placement of pilings where the pilings
were essentially equivalent to a
discharge of fill material in physical
effect or in functional use and effect. In
addition, the rule would have provided
exceptions to the regulation of the
placement of pilings as fill material in
circumstances involving linear projects
or projects which have traditionally
been constructed on pilings.
Commentors expressed several
concerns with this approach. First,
several commentors contended that all
pilings, without exception, should be
regulated. One commentor also argued
that pilings are by definition "fill
material" and therefore must be
regulated in all cases. Numerous
commentors were concerned that the
proposed rule was arbitrary since it
would regulate the placement of pilings
based on what type of structure is built
on the pilings. Asserting that the
functional use of the pilings is
irrelevant, several commentors
suggested that the agencies rely solely
on the physical effect test to determine
when the placement of pilings would ,
constitute fill material. Other
commentors disagreed, supporting the
inclusion of a functional use and effect
test. '
We agree with commentors who
argued that it is not appropriate to
determine whether Section 404 applies
to the placement of pilings solely on the
.basis of the functional use of the pilings
or whether the structures on the .pilings
have traditionally been built in this
fashion. As discussed earlier, the
agencies have deleted the "functional
use and effect" test set forth in the
proposed rule. We agree with certain
commentors that this test was vague,
and that focusing on the use of the
pilings structure is not appropriate
where our paramount concern is the
effect of the placement of pilings on the
aquatic environment. Our primary
motivation in adopting the pilings RGL
in December 1990 and in proposing this
rule, has been to address the growing
practice among some project proponents
of building large development projects
on pilings, even though they would
normally have been placed on top of fill
material!' In these .cases, the projects had
a clear adverse impact on the aquatic
environment, yet no permit was being
required for the activity: While the type
of structures built on top of pilings can
be indicative of how the pilings will
affect the aquatic environment,
ultimately it is the effect of the pilings
that is of concern to us. Focusing solely
on those effects will therefore simplify
implementation of this regulation.
For the same reasons, the final rule
provides that the placement of pilings
will not be excluded from regulation
under Section 404 based on whether the
structures they support are traditionally
constructed on pilings. The final rule
will require a Section 404 permit when
the placement of pilings has or would
have the effect of a discharge of fill
material; this test will be applied in all
circumstances. The final rule also
provides examples of activities that
generally have the effect of a discharge
of fill material, including the following:
projects where the pilings are so closely
spaced that sedimentation rates would
be increased; projects in which the
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45030 Federal Register / VoL 58. No. 163 / Wednesday, August 25. 1993 / Rules and Regulations
r-
pilings themselves effectively would
replace the bottom of a waterbody;
projects involving the placement of
pilings that would reduce the reach or
impair the flow or circulation of waters
of the United States; and projects
involving the placement of pilings
which would result in the adverse
alteration or elimination of aquatic
functions.
We discgree, however, with the
commentor who argued that the
placement of a piling is by definition a
discharge of fill material in all cases and
that all pilings must therefore be
regulated under Section 404. As
discussed above, the CWA does not
define fill material. We believe that it is
reasonable to define the placement of
pilings as a discharge of fill material
when such placement would have the
effect of fill material. This commentor
apparently believes that EPA and the
Corps are compelled to regulate the
placement of e piling in waters of the
United States as a discharge of fill
material, even where the placement
would not have effects associated with
discharges of fill material. We see no
provision of the Clean Water Act that
would compel tor adoption of such an
approach. We t=-. •• taken uhst we
believe to be a sv - .^btforwerd and
common-sense up Breach to defining
when the placHn,«-rii of pilings is a
discharge of nil notarial, an approach
that we believfe is entirely consistent
with the Clsaa \N oter Act.
Several commestors raised concern
over the exception for the placement of
pilings in linesr projects. Some
commenlors suggested deleting the
exception based on their concerns that
adverse impacts to the equatic
ecosystem would occur as a result of the
construction of linear projects. One
commentor supjz^siad that linear
projects not be excepted if the project
would "signiScanUy alter the flow of
water or iucraaw-i sedimentation so that
the quantity and quality of habitat is
reduced." Oae comraenlor also
suggested that the exception for projects
that have traditionally bt«en constructed'
on pilings be eliminated, while another
common tor wus concerned that
determining what constitutes a pier or
marina is subject 10 "blastic
interpretations" end therefore should
not be exempted. (Xh?r commentors
supported las exception for linear
projects, and one ccmmentor requested
that "hot-oil" pipelines constructed in
Alaska's North* Slope be included in the
list of linear projects where the
placement of pilings would not require
a Section 404~permit. Some commentors
argued that the proposed exceptions
were too narrow, and suggested
additional examples of activities
involving the placement of pilings that
shouldnot be considered a discharge of
fill material In particular, several
commentors suggested that the
examples of structures that would not
require a Section 404 permit due to their
having been traditionally constructed on
pilings should be expanded to include
"commercial and industrial structures
interrelated to wharves, piers, and
marinas." Finally, one commentor
suggested that all non-water dependent
activities in waters of the United States
be regulated under Section 404.
We believe that linear project
construction on pilings will generally
not have the physical effect of fill
material. We recognize, however, the
• possibility that such projects could, in
certain cases, have the effect of fill
material and therefore should be subject
to Section 404. Therefore, the regulation
does not establish a definitive rule that
linear projects will never have the effect
of fill material.
Nonetheless, we believe that it will be
a rare case when pilings used for linear
projects have the effect of fill material
and require authorization under Section
404. TLe most significant factors in
determining whether placement of
pilings has the effect of fill material are
how densaly tLe piles are placed, the
size of the pilings, and the ground
clearance of the structures built on
pilings, and the overall araal coverage of
the structures built on pilings,
Closely spaced pilings of any size, for .
example, can have the effect of
substantially replacing an aquatic area.
Very large pilings, regardless of their .
spacing, may also substantially replace
an aquatic area. Large or closely spaced
pilings can also affect current patterns
and sedimentation rates. The above-
ground clearance, and the overall area!
coverage of the structures built on
pilings, affect the suitability of the area
underneath for vegetation and wildlife.
The losses of aquatic and wetland
functions and values under these
circumstances can be the same as would
occur from the discharge of fill material
itself.
Most linear projects (piers, wharves,
bridges, elevated roads, and pipelines,
etc.) do nofrequire either closely spaced
pilings or overly large pilings since they
generally do not support massive
structures requiring great support. Also,
although some linear projects (e.g.,
bridges and elevated roads and
pipelines) may be quite long, they
generally are .not very wide, and
therefore would generally not result in
the overall areal coverage that can result
in substantial adverse effects on
vegetation and suitability of the area as
Although an Individual home on
pilings is generally not "linear" in
design, it generally shares many of the '
same attributes at linear projects so that
we believe that it generally will not
have the effect of fill material Most pile
supported individual houses require
neither closely spaced nor large pilings.
An individual home also generally does
not cover large areas. Some commentors
objected to the term "single-family"
houses contained in the proposed rule.
We agree that this term was somewhat
vague and confusing. We have
' substituted the word "individual" for
"single-family" in the final rule in order
to more effectively exclude larger
structures' (e;g., a development of
multiple single-family houses) that may
indeed have the effect of a discharge of
fill material, as outlined above.
We do not take the position that pile
supported linear projects and an
individual house on pilings can never
have any adverse effects on the aquatic
ecosystem. Obviously, aquatic life
located where a single piling is placed
will be crushed by the placement of the
piling. Similarly, even less-than-massive
structures on widely spaced pilings
.have some effects on the aquatic
environment. We. however, are
concerned with the cases where the
pilings and structures they support
cause impacts on the aquatic
environment comparable to those which
occur with the discharge of fill material
(i.e., by displacing many or all of the
aquatic functions of an area). Today's -
rule will ensure that such effects do not
occur without undergoing
environmental review under Section
404 of the CWA.
We do not agree with commentors
who argued that we should expand the
proposed exceptions to include
"commercial and industrial structures
interrelated to wharves, piers and
marinas." Such a broad category of
structures could certainly include those
with large area coverage or those built
on large or closely spaced pilings;
therefore we cannot find as a general
matter that these types of structures
generally would not have the effect of
fill material.
Several commentors expressed
concern over the manner in which the
effects tests were defined. Some of these
commentors suggested that the rule
should be consistent with the test
proposed for determining whether a
discharge of dredged material occurs,
i.e., the rule should clarify that the
placement of piling!! should be
regulated as a discharge of fill material '
only when the activity would destroy or
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Federal Register / Vol. 58, No. 163 / Wednesday, August 25, 1993 / Rules and Regulations 45O31
degrade any area of waters of the United
States. One commentor suggested that
the proposal to regulate the placement •
of pilings as fill material when a project
"significantly alters or eliminates
aquatic functions and values" was too
. vague. Another commentor was
concerned that the proposed test of
whether the "pilings are so closely
spaced that sedimentation rates are
increased" would be difficult to
implement given technical difficulties
in predicting sedimentation rates.
Commentors also requested that we
develop specific thresholds, such as
flow/temperature, or volume change, to
determine if pilings have the same
physical or functional effect as fill
material, For example, one commentor
recommended setting a standard volume
of piles to be used in one project below
which a project would not be regulated
because there would be "minimal
environmental impact." One commentor
suggested that use of the phrase
"essentially the same effects as fill" was
vague, and left open questions of how
similar the effect would have to be in
order to be "essentially the same."
The agencies disagree with the
comments that suggested the inclusion
of the same "destroy or degrade" test
proposed for the definition of
"discharge of dredged material." We
note that the definition of "discharge of
dredged material," unlike that of the
"discharge of fill material," historically
has contained an exclusion for de ,
minimis discharges associated with
"normal dredging operations." As part
of today's rule, the agencies are
narrowing that exclusion .in a manner
that we believe carries out the purposes
and objectives of the CWA. There is no
comparable language in the agencies'
definition of "discharge of fill material"
and we see no justification for adding
such language.
In response to the comment that
"significantly alters or eliminates
aquatic functions and values" was too
vague, we have deleted the term
"significantly." We agree that this
qualifier would add confusion to the
determination of whether the placement
of pilings should be regulated as fill
material, and is unnecessary. We agree
with the comment that precise
predictions would be difficult We
believe, however, that Corps and EPA
staff are able to make general
predictions regarding sedimentation
rates that may result from the placement
of pilings. Moreover, we believe that
such generalized findings would be
sufficient to determine whether a
placement of pilings would have the
effect of a discharge of fill material.
Consequently, we have retained this
part of the proposed rule without
modification.
We agree with the concern expressed
over the use of the term "large" when
referring to structures, and have deleted
it from the final'rule. We have not «et
specific standards or thresholds to
measure the physical effect of pilings as
suggested by comments, as we believe
the circumstances related to each
situation are so diverse that setting
specific standards would be
inappropriate. Instead, we believe the
determination of the effect of the
placement of pilings should be
determined on & case-by-case basis
considering the facts of each individual
case. We agree with the commentor that
"essentially" the same is unclear, and
we have deleted use of the term
"essentially" in the final rule.
E. Additional Comments
A few commentors expressed the
need to note specifically that existing
nationwide permits are not affected by
this rule and that activities determined
not to be subject to Section 404 .
regulation may still need a Section 10
permit when undertaken in traditionally
navigable waters of the United -States.
With regard to the first point, today's
rule does not modify, in any manner, '
current authorizations provided by '
existing nationwide permits. However, .
the Corps will examine the need for
additional general permits under
Section 404 for those projects involving
•the placement of pilings that have less
than minimal adverse effects on the
environment. In addition, as specifically
provided for in today's rule, the
placement of pilings in traditionally
navigable waters of the United States
remains subject to authorization under
Section 10 of the Rivers and Harbors
Act.
Another commentor expressed
concern that the regulation will prohibit
construction of any structures in
wetlands (either on fill material or on
pilings). This is clearly not our intent.
The Corps authorizes thousands of
projects involving fill material every
year, and the Corps expects to authorize
activities on pilings where appropriate.
One commentor proposed that a set of
quantifiable standards be developed for
how and where structures such as decks
may be built We believe that national
standards for pile supported structures
are inappropriate; instead, these
determinations are more properly
addressed on a case-by-case basis in the
permitting process. One commentor •
suggested that pilings should be defined
to include, pile caps, columns, piers and
abutments which are part of linear
projects. vu& AS bridges. We agree with
this comment.
• V. Revision to the Definition of Waters
of the United States to Exclude Prior
Converted Cropland
A. Background and Rationale for the
Final Rule. <
The agencies proposed to add
language in the definition of waters of
the U.S. providing that the term does
not include prior converts J ("PC")
cropland, as defined by the National
Food Security Act Manual (NFSAM)
published by the Soil Conservation
Service (SCS). PC cropland is defined by
SCS as areas that, prior to December 23,
1985, were drained or otherwise
manipulated for the purpose, or having
the effect, of making production of a
commodity crop possible. PC cropland
is inundated for no more than 14
consecutive days during the growing
season and excludes pothold or playa
wetlands. EPA and the Corps stated in
the preamble to the proposal that we
were proposing to codify existing
policy, as reflected in RGL 90-7, that PC
cropland is not waters of the United
States to help achieve consistency
among various federal programs
affecting wetlands.
.- Some commentors supported the
proposed change. They felt that it was
important for EPA, the Corps and the
Department of Agriculture to follow
consistent procedures and policies,
because to do otherwise undermines the
credibility and effectiveness of federal
wetlands protection programs. Other
commentors opposed the change in its
entirety or took issue with specific
aspects of the PC cropland definition
that they believed were inappropriate.
We have decided to retain the approach
contained in the proposed rule. The
reasons for this approach and responses
to comments opposing the proposal are
discussed below.
As stated in the preamble, to the
proposal, we are excluding PC cropland
from the definition of waters of the .U.S.
in order to achieve consistency in the
manner that various federal programs
address wetlands. One commentor
argued that such consistency is not a
"goal of the CWA," and that it was
therefore not appropriate to base
wetlands policy on this consideration.
We believe, however, that effective
implementation of the wetlands
provisions of the Act without unduly
confusing the public and regulated
community is vital to achieving the
environmental protection goals of the
Clean Water Act The CWA is not
administered in a vacuum. Statutes
other than the CVVA &nd agencies other ,
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45032 Federal Register / Vol. 58. No. 163 / Wednesday, August 25, 1993 / Rules and Regulations
than EPA and the Corps have become an
integral part of the federal wetlands
protection effort. We believe that this
effort will be most effective if the
agencies involved have, to the extent
possible, consistent and compatible
approaches to insuring wetlands
protection. We believe that this rule
achieves this policy goal in a manner
consistent with the language and
objectives of the CWA.
Moreover, we believe that excluding
PC cropland from the definition of •
waters of the U.S. is consistent with
EPA's and the Corps' paramount
objective of protecting the nation's
aquatic resources. By definition, PC
cropland has been significantly
modified so that it no longer exhibits its
natural hydrology or vegetation. Due to
this manipulation, PC cropland no
longer performs -the functions or has •>
values that the area did in its natural
condition. PC cropland has therefore
been significantly degraded through
human activity and, for this reason,
such areas are not treated as wetlands
under the Food Security Act. Similarly,
in light of the degraded nature of these '
areas, we do not believe that they,
should be treated as wetlands for the
purposes of the CWA.
The altered nature of PC cropland was
discussed in RGL 90-7, in which the
Corpus concluded that cropped
conditions constitute the "normal
circumstances" of such areas. The Corps
contrasted FC cropland with "fanned
wetlands," defined by SCS as potholes
and playas with 7 or more consecutive
days of inundation or 14 days of
saturation during the growing season,
and other areas with 15 or more
consecutive days (or 10 percent of the
growing season, whichever is less) of
inundation during the growing season.
Because the hydrology of farmed
wetlands has been less drastically
altered than it has for PC cropland, the
Corps stated in RGL 90-7 that farmed
wetlands continued to retain their basic
soil and hydrological characteristics,
and that such areas should therefore be
considered to be wetlands. ,
B. Technical Validity of Excluding PC
Cropland From Regulation Under
Section 404
Several commentors argued that it
was no! technically valid to treat all PC
cropland as non-wetlands. These
commentors pointed out that the SCS
definition of PC cropland excludes areas
that are inundated for more than 14
consecutive days a year, and they
argued that this requirement was
inconsistent with EPA's and the Corps'
regulatory definition of wetlands, which
includes areas that have wetland
hydrology due to inundated or saturated
soil conditions.
We believe that these commentors
have oversimplified the relationship
between the SCS definition of PC
cropland and the wetlands definition
under Section 404. In fact, except for a
brief period of time after the adoption of
the 1989 Federal Manual for Identifying
and Delineating Jurisdictional Wetlands
(1989 Manual), the Section 404 program
has generally not considered such
fanned areas as meeting the regulatory
definition of wetlands under the CWA.
In 1986, the Corps issued RGL 86-9.
which interpreted the phrase "normal
circumstances" in our regulatory .
definition of wetlands as referring to an
area's characteristics and use in the
present and recent past. Under this
interpretation, cropped areas did not
constitute wetlands where bydrophytic
vegetation has been removed by the
agricultural activity. In the 1989
Manual, EPA and the Corps modified
this approach and evaluated whether a
cropped area retained wetland
hydrology to the extent that wetland
vegetation would return if the cropping
ceased. Under the 1989 Manual,
therefore, the phrase "normal
circumstances," as applied to
agricultural areas. meant tbe
circumstances that would be present
absent agricultural activity. The Corps
ceased using the 1989 Manual in
August. 1991 at tbt direction of
Congress (Energy and Water
Development Appropriations Act of
1992, Publ L. 102-580) and began using
its earlier 1987 Corps of Engineers
Wetlands Delineation Manual (1987
Manual) for wetlands delineations. EPA
is currently also using tbe Corps' 1987
Manual in implementing Section 404
(See 58 FR 4995. January 19.1993).
While the 1987 Manual does not
address •application of the "normal
circumstances" phrase as it relates to
areas in agricultural production, both
agencies continue to follow the
guidance provided by RGL 80-7. which
interprets our regulatory definition of
wetlands to exclude PC cropland.
The evolution over the last several
years in the EPA and Corps policy for
delineating wetlands in agricultural
areas attests to the difficult technical,
legal and policy considerations that bear
'on this issue. We therefore disagree with
commentors who seemed to believe that
ascertaining the Jurisdictional status of
PC cropland is a cut-and-dried technical
question readily resolved by reference to
generally accepted delineation
methodologies. In utilizing the SCS
definition of PC cropland for purposes
of Section 404 of the CWA. we are
attempting, in an area where there is not
a clear technical answer, to make the
difficult distinction between those
agriculture! areas that retain their
wetland character sufficiently that they
should be regulated under Section 404,
and those areas that been so modified
that they, should fall outside the scope
of the CWA. As is inevitable where tbe
government engages in such line-
drawing, we recognize that the
particular line we have chosen to draw
is not perfect. Two areas that are
inundated for 14 days and 15 days a
season respectively may not, in fart,
differ materially in terms of their
function and values. This criticism,
however, could be made no matter
where we chose to draw the line
between wetlands and non-wetlands.
We believe that the distinctions under
the Food Security Act between PC
cropland and fanned wetlands provides
a reasonable basis for distinguishing
between wetlands and non-wetlands
under the CWA. In addition to the fact
that we believe this distinction is an
appropriate one based on the ecological
goals and objectives of the CWA,
adopting the SCS approach 'in this area
will also help achieve the very
important policy goal of achieving
consistency' among federal programs
affecting wetlands.
C. Role of SCS PC Cropland
Determinations "
In the preamble to the proposal, we
stated that Jurisdictional determinations
under the CWA can only be made by
EPA and the Corps. While we stated we
would accept and concur in SCS
determinations to the extent possible,
this rule does not alter the final
authority of EPA regarding CWA
jurisdiction.
This discussion in the preamble was
criticized by commentors from several
angles. Some commentors were
concerned that the proposed rule
effectively "delegated" EPA's and the
Corps' authority regarding CWA
jurisdiction to SCS. Some of these
commentors urged that SCS be required
to obtain Corps (or EPA) concurrence for
the purposes of making PC cropland
determinations. From the other side,
commentors argued that EPA and the
Corps should not be allowed to make an
independent judgment at a site, and
should be required to defer absolutely to
SCS determinations.
In response to these comments, we
note that today's rule does not
"delegate" EPA's ultimate authority for
determining the scope of geographic
jurisdiction under the CWA. At the .
same time, we believe it is critical that
duplication between the SCS's wetlands
program and the CWA Section 404
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Federal Register / Vol. 58, No. 163 / Wednesday. August 25, 1993 / Rules and Regulations 45033
program be reduced. In that regard, we
believe that farmers should generally be
able to rely on SCS wetlands
determinations for purposes of
' complying with both the Swampbustsr
program and the Section 404 program.
In order to make this reliance possible,
we are working with SCS to develop
appropriate procedures, including
monitoring, for coordinating wetland
determinations by the agencies. We are
also working with SCS to develop field
guidance for implementing the 1987
' Corps Manual to clarify procedures for .
identif j'ing wetlands in areas managed,
for agriculture, and are expediting
current efforts to revise the SCS's
NFS AM to provide greater consistency
between our wetlands delineation
procedures. Moreover, we ire also
developing an interagency training
program with SCS and other agencies to
ensure that agency field staff are
properly trained, and that standard,
egreed-upon methods are utilized in.
making wetland determinations.
However, in order to clarify the
relationship between determinations
made by SCS and the Corps or EPA, we
have added language to the rule itself
stating that the final authority regarding
CWA jurisdiction remains with EPA.
We also disagree with commenters
who stated that SCS should be required
to obtain EPA or Ccrps concurrence in
their PC cropland determinations. First,
since SCS is the administering agency
under the Food Security Act, we do not
believe it would be appropriate to
require that SCS obtain tha concurrence •
of other federal agencies before making
determinations under that statute.
Moreover, requiring EPA/Corps
concurrence on every PC designation
made by the SCS would be an
. inefficient use of our limited resources,
since a site being evaluated by SCS may
not be one where a regulated activity
will occur (i.e., a discharge of dredged
or fill material not exempt under
Section 4Q4JD). In those cases, a Section
4G4 delineation will not be necessary at
all, ana expending pur resources on
, delineations in such cases would be a
waste of taxpayer money. In light of
EPA's ultimate statutory responsibility
for determining the scope of CWA
jurisdiction, we cannot satisfy
commentors who argued that we should
be required to defer absolutely to SCS
determinations. However, recognizing
SCS's expertise in making these PC
cropland determinations, we will
continue to rely generally on
determinations made by SCS.
Many commentors expressed
concerns about the alleged lack of
consistency and reliability in SCS prior
converted cropland determinations.
These commenters stated that most SCS
PC cropland determinations are made
based on aerial photos, and they argued
that site visits were necessary to
accurately delineate wetlands under
Section 404. As discussed earlier, the
SCS, in consultation with the Corps and >
EPA, is working to improve the
consistency of its prior converted
cropland determinations.
17. Expand Exclusion to All Agricultural
Areas
Some commentors argued that the
exclusion of agricultural areas should
not be limited to land that meets the
SCS definition of PC cropland but that
the exclusion should apply to any
agricultural area that is not inundated
for more than 14 consecutive days
during the growing season. While these
commentors believed there would be
advantages to treating all agricultural
areas similar1}* in this manner, we
believe that such considerations are
outweighed by the importance of
achieving the goal of consistency with
the PC definition under the Food
Security Act
E. Incorporation of NFSAM Into EPA/
Corps Regulations
Several commentors made the
procedure! argument that adoption of
the NFS AM by reference into EPA's and
the Corps' regulttio.ni violated the
Administrative Procedure Act These
commenton pointed out that the
NFSAM had riot yet gone through
rulemaking when it was adopted by SCS
and they vgued thet reference to the
NFSAM in the proposed rule was not
legally adequate. Other commenters
questioned the appropriateness of
incorportung the NFSAM into EPA's
and the Corps' regulatory provisions
when the agency that developed the
manual (SCS) uses it is a guidance
document Some commentors also felt
'that EPA and the Corps should retain
the flexibility to follow future revisions
to the NFSAM made by SCS.
As explained above, one of the
primary reasons that EPA and the Corps
are amending the definition of waters of
the United States to exclude prior
converted croplends is to ensure
consistency tn the wty various federal
agencies are regulating wetlands. We
believe that consistency with SCS
policy will best be achieved by our
utilizing the NFSAM in the same
manner *s SCS, i.e., as a guidance
document used In conjunction with
other appropriate technical guidance
and field testing techniques to
' determine whether an area Is prior
converted cropland. We also agree with
the commentors' arguments about the
need to be able to maintain consistency
with SCS in the future when revisions
are made to the NFSAM; incorporating
one version of the manual into EPA's
and the Corps' regulations would impair
our ability to follow future revisions to
the NFSAM in administering Section
404. The final rule, therefore, continues
to exclude prior converted cropland
from the definition of waters of the
United States, but does not specific ally
incorporate by reference the provisions
of the NFSAM. EPA and the Corps will,
however, implement this exclusion in a
manner following the guidance
contained in the NFSAM and
appropriate field delineation
techniques, and will continue to rely, to
the extend appropriate, on
determinations made by SCS. The Corps
and EPA will continue to work with
SCS on procedures for implementing
the prior converted cropland portion of
the NFSAM. We will also issue policy
guidance directing our field staff to
utilize the guidance in the NFSAM
when determining the presence of ' •
.wetlands on agricultural lands.
By codifying our existing policy that
prior converted croplands are not waters
of the U.S., the final rule strengthens the
regulatory basis for not regulating these
areas under Section 404. The fact that
we have not incorporated by reference
the actual provisions of the NFSAM into
our rules does not undercut our ability
to maintain this consistency. Rather, as
explained above, we believe that
utilizing the NFSAM as a guidance
manual, as it is used by SCS, will
enhance consistency in the
administration of the Food Security and
Clean Water Act programs.
F. Section 404(f) Exemptions
Some commentors expressed concern
that codifying Regulatory Guidance
Letter 9O-7 would eliminate all
exemptions for agricultural activities
under Section 404(f){lMA) of the Act
Other commentors felt that the rule was
not needed and that prior converted
croplands should be considered exempt
under the Section 404(0 normal farming
activities exemption.
As previously stated in this preamble,
today's rule will not eliminate or in any
way effect the exemptions for normal
farming, ranching, Or silviculture
activities in Section 404(0(1). Moreover.
the exemptions apply only to discharges
and not to the issue of whether an area
is within the geographic scope of
Section 404.
C. Criteria for Abandonment
Some commentors expressed
concerns that the abandonment rule was
not clear. A few commentors opposed
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45034 Federal Register / Vol. 58, No. 163 /Wednesday, August 25, 1993 / Rules and Regulations
the use of prior converted croplands for
non-agricultural uses. One commentor
objected to the fact that there is no
mechanism providing for "recapture"'
into Section 404 jurisdiction of those
prior converted croplands that revert
back to wetlands. One commentor
objected to the requirement that a prior
' converted cropland is considered
abandoned unless it is used for the
production of an agricultural
commodity at a regular interval, stating
that it should include use for any '
agricultural production, including hay
and pastureland.
The Corps and EPA will use the SCS
provisions on "abandonment," thereby
ensuring that PC cropland that is
abandoned within the meaning of those
provisions and which exhibit wetlands
characteristics will be considered
wetlands subject to Section 404
regulation. While we agree that SCS's
abandonment provisions may be
complex, SCS has been applying these
provisions for several yean in
implementing the Swampbuster
program, and fanners have become
familiar with the standards used to
determine whether a property has been
"abandoned." If EPA and the Corps
were to use different abandonment
provisions in implementing today's
rule, we believe the resulting
inconsistency between the two
regulatory programs would serve only to
create confusion as to which standards
are applicable to the same parcel of
property. In response to commentors
who opposed the use of PC croplands
for non-agricultural uses, the agencies
note that today's rule centers only on
whether an area is subject to the
geographic scope of CWA jurisdiction.
This determination of CWA jurisdiction
is made regardless of the types or
impacts of the activities that may occur
in those areas. The agencies also note
that today's rule will provide a
mechanism for "recapturing" into
Section 404 jurisdiction those PC
croplands that revert back to wetlands
where the PC cropland has been
abandoned. Finally, in response to the
request that a PC cropland not be
considered abandoned if the area is
used for any agricultural production,.
regardless of whether the crop is an
agricultural commodity, we note that
SCS's abandonment provisions do
recognize that an area may be used for
other agricultural activities and not be
considered abandoned. In particular, PC
cropland which now meets wetland
criteria is considered to be abandoned
unless: For once in every Eve years the
area has been used for the production of
an agricultural commodity, or the area
has been used and will continue to be
used for the production of an
agricultural commodity in a commonly
used rotation with uquaculture, grasses, '
legumes or pasture production.
H. Grandfather Clause
One commentor said that RGL 80-7
results in the retroactive grandfathering
of illegal drainage activities between
1977 and 1985. It has been and
continues to be the position of the Corps
and EPA that unauthorized discharge
activity cannot eliminate Section 404
jurisdiction. Therefore, wetlands that
were converted to prior converted
cropland between 1972 and 1985 as a
result of unauthorized discharges of
dredged or fill material dn not constitute
"prior converted cropland" within the
meaning of today's rule and remain
"waters of the United States" subject to
Section 401 regulation..
VI. Environmental Documentation
Some commentors wanted the Corps
to prepare an Environmental Impact
Statement (EIS), arguing that this .
rulemaking constitutes a major federal
action .significantly affecting the quality
of the human environment. Some
commenters felt that since these rules
protected wetlands, an EIS would be
needed to determine such
environmental effects as mosquito '
infestation, odors, and cases. Others
wanted an EIS prepared because they
felt that these rules would result in a
loss of wetlands. One commentor
requested that the Corps prepare an EIS
for farming, forestry and ranching
disturbances and other questionable
wetland impacts before proceeding with
further rulemaking.
Section 511(c) of the CWA provides
that, except for certain actions not
relevant here, no action by EPA
constitutes a major federal action
significantly affecting the quality of the
human environment with the meaning
of NEPA. In this joint rulemaking by
EPA and the Corps, these two agencies
are making substantively identical
revisions to their regulations in order to
better carry out the purposes of Section
404 of the CWA. EPA is exempt from
NEPA under Section 511(c), and we
believe that, under the circumstances of
this joint rulemaking, the Corps is '
exempt as well.
Nonetheless, the Corps has prepared
an environmental assessment and
determined that there will not be a
significant impact on the quality of the
human environment. This assessment is
contained in the record for this
rulemaking. Consequently, an EIS has
not been prepared by the Corps.
Furthermore, appropriate environmental
documentation, including an EIS when
required, is prepared by the Corps for all
permit decisions. . .
VII. Executive Order 12291 and She
Regulator; Flexibility Act
Numerous commentors indicated that
a regulatory impact analysis under
Executive Order 12291 should be done
because the rule would allegedly cause
an increase in the Corps' workload and
in costs to permit applicants and
because the rule will allegedly result in
additional encumbrances or burdens on
the public in the form of tax increases,
project delays, project scrutiny and
increased project costs. One commentor
felt that agency resources would be
diverted from larger, more significant
projects by this rule. EPA and the Corps
do not believe that this regulation meets
the definition of a major rule under
Executive Order 12291, and we
therefore have not prepared a regulatory
impact analysis for the rule.
dome commentors also argued that
the agencies were required to perform a
Regulatory Flexibility Analysis for this
regulation under the Regulatory
Flexibility Act, 5 U.S.C, 601-612. EPA
and the Department of the Army certify,
pursuant to Section 605 (b) of the
Regulatory Flexibility Act of 1980, that
this regulation will not have a
significant impact on a substantial
number of entities. Therefore we have
not prepared • regulatory flexibility
analysis for this rule.
EPA and the Corps do not believe that
this regulation will have a significant
impact on a substantial number of small
entities first because most of the
components of this rule merely codify
current agency policies and these
aspects of the rule will therefore not
result in any increased regulatory
burden on the public, including small
businesses. Since 1990, the Corps has
followed the policy under RGL 90-5 of
regulating mechanized landclearing
activities under Section 404. Similarly,
RGL 90-8 established, in December
1990, the Corps policy of regulating the
placement of pilings when the activity
would have the effect of discharge of fill
material. The amendment of the.
definition of waters of the United States
.in today's rule also codifies the
agencies' current policy of not
regulating prior converted cropland
under Section 404. as reflected by Corps
RGL 90-7. RGL 90-7, moreover, eased
the regulatory burden of the Section 404
.program by excluding prior converted
cropland from coverage under this
provision.'
EPA and the Corps believe, moreover.
that coverage of discharges associated
with ditching, channelization and other
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Federal Register / Vol. 58, No. 163 / Wednesday, August 25. 1993 / Rules and Regulations 45035
excavation activities that would destroy
or degrade waters of the United States
should not result in a significant impact
on a substantial number of small
entities. Prior to today's rule, the Corps
has uniformly regulated these activities
where they were accomplished by
excavating dredged material and
sidecasting the material in adjacent
waters of the United States. Conducting
these activities without sidecasting
dredged material is technically difficult
and costly, and operators unable or
unwilling to pay the costs to perform
their activities in this manner have
therefore already been subject to the
Section 404 program. In addition, the
practices of Corps districts have varied
in this area, with some districts already
regulating ditching, channelization and
other excavation activities where
. dredged material was not sidecast.
Therefore, we do not believe that the
incremental regulatory burden
associated with this aspect of the
regulation should be significant.
Moreover. EPA end the Corps have
included a provision in this regulation
that would minimize afly increased
regulatory burden that may result from
subjecting some activities to Section 404
jurisdiction for the first time. The rule
. does not regulate discharges of dredged
material associated with activities that
would not destroy or degrade waters of
the United States. Establishing this
threshold fcr requiring a Section 404
permit should be relevant for small
entities in most instances, since they
may be more likely than large •
operations to engage in minor activities
having only a de minimis impact on the
. aquatic ecosystem. Some commentors
.believed that there would be regulatory
impacts on the public due to regulating
activities such as mowing, certain
snagging activities, pumping, and
vehicular; traffic. While such activities
may occur in waters of'the United
States, they generally do not involve a
discharge of dredged material or would
not have the effect'of destroying or -
degrading a water of the United States
arid therefore would not trigger the
requirement of a Section 404 permit.
In addition, as discussed elsewhere in
this preamble, the Corps intends to
issue general permits (regional or
nationwide) for newly regulated
activities that would have a minimal
individual or cumulative impact on the
aquatic environment. Issuance of
general permits should further reduce
any .regulatory burden associated with
complying with today's rule.
Finally, one primary purpose of the
Regulatory Flexibility Act is to
encourage agencies to explore regulatory
alternatives that would minimize
impacts of the regulatory scheme on
small entities. See 5 U.S.C. 604(a)(2)
(requiring that final regulatory
flexibility analysis include "a
description of each of the significant •
alternatives to the rule * * * designed .
to minimize any significant economic
impact of the rule on small entities").
The only issue addressed in this
rulemaldng, however, is whether a
discharge of dredged or fill material will
require a Section 404 permit. Under ,
Section 404; there are therefore only two
regulatory "alternatives" available to the
agencies: either a Section 404 permit is
required or it is not. Section 404 does
not authorize any other "intermediate"
regulatorycontrol mechanisms for :
regulated discharges that the agencies
could consider establishing for small
entities. Because, under Section 404, the
requirement to obtain a permit is the
sole tool for regulating activities covered
by this provision, we do not believe that
there are less burdensome alternatives
available to achieve the objectives of
this rulemaking. Rather, we believe that
the appropriate forum for exploring
means of reducing impacts on small
businesses is through the permitting
process itself (e.g., through issuance of
general permits where appropriate, and
by tailoring permit requirements to the
severity of the environmental harm,
which in turn may correlate with the
.size of the entity undertaking the
project). As explained previously, the
agencies have considered in this -
ruleiriaking alternatives that may, "~ .
. indirectly, have resulted in less of a
regulatory burden on small entities (e.g.,
by excluding from regulation activities
associated with a discharge of dredged
material that would not have a
"significant" effect on the environment).
For the reasons explained in this
preamble, however, we rejected these ,
alternatives as not being consistent with
the language, goals and/or objectives of
Section 404. Therefore, we believe that
the final rule reflects a regulatory
approach that appropriately meets the
requirements of Section 404.
Note 1.—The term "he" and its derivatives
used in these regulations are generic and
should be considered as applying to both
male and female. •
List of Subjects
33 CFB Port 323 . - .
Navigation, Water pollution control,
Waterways. • •
33 CF7? Port 325
Navigation, Water pollution control,
Waterways.
4O CFR Ports HO, 112, 116,117, 122,
230,232, and 401
Wetlands, Water pollution control.
Dated: August 19.1993.
Carol M. Browner,
Administrator, Environmental Protection
Agency.
G. Edward Dickey,
Acting Assistant Secretary of the Army (Civil
Works), Department of the Army.
Accordingly, 33 CFR parts 323 and
328 and 40 CFR parts 110.112,116,
117,122, 230,232 and 401 are amended
as follows: .
33 CFR Chapter tt-Corps of Engineers, .
Department of the Army
PART 323—PERMITS FOR
DISCHARGES OF DREDGED OR FILL
MATERIAL INTO WATERS OF THE
UNITED STATES
1. The authority citation for part 323
continues to read as follows:
Authority: 33 U.S.C. 1344.
2. Section 323.2(d) is revised to read
as, set forth below.
3. Section 323.2(e) is amended by
adding a sentence at the end that reads
as set forth below.
4. Section 323.2(f) is amended by
adding a sentence at the end that reads
as set forth below. . • .
S323£ Definitions.
• •••-'•.
(d)(l) Except as provided below in
paragraph (d)(2), the term discharge of
dredged material means any addition of
dredged material into, including any
redeposit of dredged material within,
the waters of the United States. The
term includes, but is not limited to, the
following:
(i) the addition of dredged material to
a specified discharge site located in
waters of the United States;
(ii) the runoff or overflow from a
contained land or water disposal area;
and
(iii) 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.
(2) The term discharge of dredged
material does not include the following:
(i) discharges of pollutants into waters
of the United States resulting from the
onshore subsequent processing of •
dredged material that is extracted for
any commercial use (other than fill).
These discharges are subject to section
402 of the Clean Water Act even though
the extraction and deposit of such
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45036 Federal Ragkter /Vol. 58. No. 163 /Wednesday. August 25, 1993 / Rules and Regulations
material may leouire-i permit from the
. Corps or applicable stata Section 404
program.
(ii) activities that involve only The
cutting or removing of vegetation above
the ground (e.g.-, mowing, rotary cutting,
and chainsawing) where the activity
neither substantially .disturbs the root
- system nor involves mechanized
pushing, dragging, or other-similar
activities that redeposit excavated soil
material.
(3) Section 404 authorization is not
required for the following:
U) any incidental addition, including
redeposit, of dredged material
associated with any activity that does
not have or would not have the effect of
destroying or degrading aa area of
waters of the United States as denned in
paragraphs (d)(«) and (d)(5) of this
section; however, this exception does
not applyto any person preparing to
undertake mechanized landclearing,
ditching, channelization and other
excavation activity in a water of the
United States, which would result in a
redeposit of dredged material, unless
the person demonstrates to the
satisfaction of the Corps, or EPA as
appropriate, prior to commencing the
activity involving the discharge, that the
activity would not have the effect of
destroying or degrading any area of
waters of the United States, as defined '
in paragraphs (d)(4) and (dj(5) of this
section. The person proposing to
undertake mechanized landclearing,-
ditching, channelization or other
excavation activity bears the burden of
demonstrating that such activity would
not destroy or degrade any area of
waters of the United States.
(ii) incidental movement of dredged
material occurring during normal
dredging operations, defined as
dredging for navigation in navigable
waters of the United States, as that term
is defined in pan 329 of this chapter,
with proper authorization from the
Congress and/or the Corps pursuant to
part 322 of this Chapter; however, this
exception is not applicable to dredging
activities in wetlands, as that term is
defined at section 328.3 of this Chapter.
(iii) those discharges of dredged
material associated with ditching,
channelization or other excavation
activities in waters of the United States,
including wetlands, for which Section
404 authorization was not previously
required, as determined by the Corps
district in which the activity occurs or
would occur, provided that prior to
August 25,1993, the excavation activity
commenced or was under contract to
commence work and that the activity
will be completed no later than August
25,1994. This provision does cot apply
to discharges associated with
mechanized landclearing. For those
excavation activities that occur on an
ongoing basis (either continuously or .
periodically), c.g., mining operations,
the Corps retains the authority to grant,
on a case-by-casa basis, an extension of
this 12-month grandfather provision
provided that the discharger has
submitted to the Corps within the 12-
month period an individual permit
application seeking Section 4Q-J
authorization for such excavation
activity. In no event can the grandfather
period under this paragraph extend
beyond August 25,199& ~ -"
(iv) certain discharges, such as those
associated with normal farming.
silviculture, and ranching activities, are
not prohibited by or otherwise subject to
regulation under Section 404. See 33
CFR 323.4 for discharges that do not
required permits.
(4) For purposes of this section, an
activity associated with a discharge of
dredged material destroys an area of
waters of the United States if it alters
the area in such e way that it would no
longer be a water of the United States.
(Note: Unauthorized discharge* into waters
of the United States do not eliminate Clean
Water Act jurisdiction, even where such
unauthorized discharge* have the eSect of
destroying waters of the United States.]
(5) For purposes of this section, an
activity associated with a discharge of
dredged material degrades an area of
waters of the United States if it has more
than a de minimis (i.e., inconsequential)
effect on the area by causing-an
identifiable individual or cumulative
adverse effect on any aquatic function.
(e)* * * See §323.3(c) concerning the
regulation of the placement of pilings in
waters of the United States.
(f)* • • See §323.3(c) concerning the
regulation of the placement'of pilings in
waters of the United States.
• • • o •
5. Section 323.3(c) is added to read as
follows:
f 323.3 Discharges requiring permits.
• * • a •
(c) Pilings. (1) Placement of pilings in
waters of the United States constitutes
a discharge of fill material and requires
a Section 404 permit when such
placement has or would have the effect
of a discharge of fill material. Examples
of such activities that have the effect of
a discharge of fill material include, but
are not limited to, the following:
Projects where the pilings are so closely
spaced that sedimentation rates would
be increased; projects in which the
pilings themselves effectively would
replace the bottom of e waterbody,
•projects involving the placement of
pilings that would reduce the reach or
impair the flow or circulation of waters
of the United States; and projects
involving the placement of pilings
which would resuh in the adverse
alteration or elimination of aquatic
functions.
(2) Placement of pilings in waters of
the United Stater that does not have or
would not have Lie effect of a discharge
. of fill material shall not require a
-Section-404 permit. Placement of pilings
for linear projects, such as bridges,
elevated walkways, and powerline
structures, generally does not have the
effect of a discharge of fill material.
Furthermore, placement of pilings to
waters of the United States for piers.
wharves, and an individual house on
stilts generally does not have the effect
of a discharge of fill material. All
pilings, however, placed in the
navigable waters of the United States, as
that term is defined in part 329 of this
chapter, require authorization under
section 10 of the Rivers and Harbors Act
of 1B~99 (see part 322 of'this chapter).
PART 328—DERNTTfON OF WATERS
OF THE UNITED STATES
£. The authority citation for pan 328
continues to read as follows:.
Authority: 33 U.S.C. 1344.
7. Section 328.3(a) is amended by
adding a new paragraph (a)(8) that reads
as follows:
J 328.3 DeflnWom,
• • « • •
• W • * •
(8) Waters of the United States do not
include prior converted cropland.
Notwithstanding the determination of
an area's status as prior converted •
cropland by any other federal agency,
for the purposes of the Clean Water Act,
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
40 CFR Chapter I—Environmental
Protection Agency
PART 110^-OISCHARGE OF OIL
1. The authority citation for part 110
continues to read as follows:
Authority; 33 U.S.C 1321 (b)f3) and (b)(4)
and 1361(a); 33 U.S.C-1517(m)(3).
2. Section 110.1. definition of
navigable waters, is amended by adding
three new oentences of concluding text
at the end of the definition to read as
follows:
fHO.1 IMinltlofM.
• • • • *
-------
Federal Register / Vol. 58, No. 163 /Wednesday, August 25, 1993 / Rules and Regulations 45037
Navigable waters do not include prior
converted cropland. Notwithstanding
the determination of an area's status as
prior converted cropland by any other
federal agency, for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA.
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
continues to read as follows:
Authority: 33 U.S.C. 1251 or sag.
2. Section 112.2{k), definition of
navigable waters, is amended by adding
three new sentences of concluding text
at the end of the definition to read as
follows:
§112J Definitions.
• • • • « *
Navigable waters do not include prior
converted cropland. Notwithstanding
the determination of an area's status as
prior converted cropland by any other
federal-agency, for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA. . " -
PART 116—DESIGNATION OF
HAZARDOUS SUBSTANCES
1. The authority citation for part 116
continues to read as follows:
Authority: 33 U.S.C. 1521 etseq.
2. In § 116.3, the definition of
na\igable waters is amended by adding
three hew sentences of concluding text
at the end of the definition, as set forth
below, and the definitions are placed in
alphabetical order. \
§115.3 Definitions.
«'• »• • »•
Navigable waters do not include prior
converted cropland. Notwithstanding
the determination of an area's status as
prior converted cropland by any other
federal agency, for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA.
PART 117—DETERMINATION OF
REPORT ABLE QUANTITIES FOR
HAZARDOUS SUBSTANCES
1. The authority citation for part 117
continues to read as follows:
Authority: 33 U.S.C. 1251 etseq.
2. The definition of navigable waters.
§ 117.1(0, is amended by adding three
new sentences of concluding text at the
end of the definition to read as follows:
1117.1 Definitions.
• . • • •.";'•
Navigable waters do not include prior
converted cropland. Notwithstanding
the determination of an area's status as
prior converted cropland by any other
federal agency, for the purposes of the
Clean Water Act, the final authority
regarding Clean Water Act jurisdiction
remains with EPA.
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Authority: 33 U.S.C. 1251 et. teq.
2. Section 122.2, definition of waters
of the United States, is amended by
adding three hew sentences at the end
of the concluding text of the definition
to read as follows:
f12&2 Definition*.
• • ,* -• • '•
* * • Waters of the United States do
not include prior converted cropland.
Notwithstanding the determination of
an area's status as prior converted
cropland by any other federal agency,
for the purposes of the Clean Water Act,
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
PART 230—SECTION 404(bX1)
GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR
FILL MATERIAL
. 1. The authority citation for part 230
continues to read as follows: -
Authority: 33 U.S.C. 1344(b) and 1361(a).
2. Section 230.3(s), definition of
waters of the United States, is amended
by adding three new sentences of
concluding text at the end of the
definition to read as follows:
§230.3 Deflntiton«.
• • • « •
Waters of the United States do not
include prior converted cropland.
Notwithstanding the determination of
an area's status as prior converted
cropland by any other federal agency,
for the purposes of the Clean Water Act,
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
PART 232—404 PROGRAM
DEFINITIONS; EXEMPT ACTIVITIES
NOT REQUIRING 404 PERMITS
1. The authority citation for part 232
continues to read as follows:
Authority: 33 U.S.C 1344.
2. In § 232.2, the definition of
discharge of dredged material is revised
to read as set forth below.
3. In § 232.2, the definition of
discharge of fill material is revised to
read as set forth below.
4. In § 232.2, the definition of waters
of the United States is amended by
adding two new sentences of
concluding text at the end of the
definition to read as set forth below.
§2325 Definitions.
• • • • •
Discharge of dredged material. (I)
Except as provided below in paragraph
(2), the term discharge of dredged
material means any-addition of dredged
material into, including any redeposit of
dredged material within, the waters of
the United States. The term includes,
but is not limited to, the following:
(i) The addition of dredged material to
a specified discharge'site located in
waters of the Untied States; '
(ii) The runoff or overflow, associated
with a dredging operation, from a
contained land or water disposal area;
and
(iii) 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.
(2) The term discharge of dredged
material does not include the following:
(i) Discharges of pollutants into
waters of the United States resulting
from the onshore subsequent processing
of dredged material that is extracted for
any commercial use (other than fill).
These discharges are subject to section
402 of the Clean Water Act even though
the extraction and deposit of such
material may require a permit from the
Corps or applicable state.
(ii) Activities that involve only the
cutting or removing of vegetation above
the ground (e.g., mowing, rotary cutting.
and chainsawing) where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or ether similar
activities that redeposit excavated soil
material.
(3) Section 404 authorization is not
required for the following:
(i) Any incidental addition, including
redeposit, of dredged material
-------
45038 Federal Register / Vol. 58. No. 163 / Wednesday. August 25, 1993 J Kme>
associated with any activity that does
not hove or would not have the affect of
destroying or degrading an «raa of
waters of the U.S. as defiued in
paragraphs (4} and (5) of this definition;
however, this exception does not apply
to any person preparing to undertake
mecb'anized kndclearing, ditching,
channelization and other excavation
activity in a water oi the United States,
which would result in a redeposit of
dredged material, unless the person
demonstrates to the satisfaction of the
Corps, or EPA as appropriate, prior to
commencing the activity involving the
discharge, that the activity would not
have the effect of destroying or
degrading any area of waters of the
United States, as defined in paragraphs
(4) and (5) of this definition. The person
proposing to undertake mechanized
Jandcloarlng, ditching, channelization
or other excavation activity bears the
burden of demonstrating that such
activity would not destroy or degrade
any area of waters of the United States.
(ii) Incidental movement of dredged
material occurring during normal
drudging operations, defined as
dredging for navigation in navigable
waters of the United States, as that term
is defined in 33 CFR part 329, with
proper authorization from the Congress
or tne Corps pursuant to 33 CFK part
322; however, this exception is not
applicable to dredging activities in
wetlands, as that term is defined at
§ 232.2(r) of this Chapter.
(iii) Those discharges of dredged
material associated with ditching,
channe'izab'on or other excavation
activities in waters of'the United States,
including wetlands, for which Section
404 authorizaJ-'on was not previously
required,« determined by the Corps .
district in which the activity occurs or
would occur, provided that prior to
August 25,1993, the excavation activity
co-rnmenced or was under contract to
commence work and that the activity
will be completed no later that August
25,1994. This provision does not apply
to discharges associated with
mechanized Isndclearing. For those
excavation activities that occur on an
ongoing basis (either continuously or
periodically), e.g., mining operations,
the Corps retains the authority to grant,
on a case-by-taiw basis, an extension of
this 12-month grandfather provision
provided that the discharger has
submitted to the Corps within the 12-
month period an individual permit
application seeking Section 404
authorization for such excavation
activity. In no event can the grandfather.
period under tMi paragraph extend
bevuiid August 25.1996.
(iv) Certain discharges, such as those
associated with normal fanning.
•silviculture, and ranching activities, are
not prohibited by or otherwise subject to
regulation under Section 4O4. See 40
CFR 232.3 for discharges thai do not
require permits.
(4) For purposes of this section, an
activity associated with a discharge of
dredgad meterial destroys an area of
waters of the United States if it alters
the area in such a way that it would no
longer be a water of the United States.
Note: Unauthorized discharge* to*0 water*
of the United States do oot eliminate dean
Water Act jurisdiction, even when such
unauthorized discharges hrve.the effect of
destroying waters of the United States.
(5) For purposes of this section, an
activity associated with a discharge of
dredged material degrades an area of
waters of the United States if it has more
than a de minimis (i.e., inconsequential)
effect on the area by causing an
identifiable individual or cumulative
adverse effect on any eq-uatic function.
Discharge of fill material. (1) The term
discharge of fill material means the
addition of fill material into waters of
the United States. The term generally
includes, without limitation, the
following activities: Placement of fill '
that is necessary for the construction of
any structure in a water of the United
States,* the building of any structure or
impoundment requiring rock, sand, dirt,
or other material for its construction;
site-development fills for recreational,
industrial, commercial, residential, and
other uses; causeways or road fills;
dams and dikes; artificial islands; •
property protection and/or reclamation
devices such as riprap, grains, seawalls,
breakwaters, and revetments; beach
nourishment; levees; fill for structures
such as sewage treatment facilities.
intake and outfall pipes associated with
power plants and subaqueous utility
lines; end artificial reefs.
(2) In addition, placement of pilings
in waters of the United States
constitutes a discharge of fill material
and requires a Section 404 permit when
such placement has or would have the
effect of a discharge of fill material.
Examples of such activities that have
the effect of a discharge of fill material
include, but are not limited to. the
following: Projects where the pilings are
so closely spaced that sedimentation
rates would be increased; projects in
which the pilings themselves effectively
would replace the bottom of a
waterbody; projects involving the
placement of pilings that would reduce
the reach or impair the Sow or
circulation of waters of the United
States; and project* involving the
placement of pilings which would result
in the adverse alteration or elimination -
of aquatic functions.
U) Placement of pilings in waters of
the United States that does not have or
would not have the effect of a discharge
of fill material shall not require a
Section 404 permit. Placement of pilings
for linear projects, such as bridges,
elevated walkways, and powerline
structures, generally does not have the
effect of a discharge of fill material.
Furthermore, placement of pilings in
waters of the United States for piers,
wharves, and an individual house on
stilts generally does not have the effect
of a discharge of fill materiel All
pilings, however, placed in the
navigable waters of the United States, as
that term is defined in 33 CFR part 329.
require authorization under section 10
of the Rivers and Harbors Act of 1899
(see 33 CFR part 322).
(ii) [Reserved]
• •••*•
Waters of the United States. " * "
Waters of the United States do not
include prior converted cropland.
Notwithstanding the determination of
an area's status as prior converted
cropland by any other federal agency.
for the purposes of the Clean Water Act,
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
**•**'
PART 401—EFFLUENT GUIDELINES
AND STANDARDS
1. The authority citation for part 401
continues to read as follows:
Authority: 33 U.S.C. 1251 etseq.
2. Section 401.11(1), definition of
navigable waters, is amended by adding
two new sentences at the end of the
definition to read as follows:
1401.11 G*n«rai definition*,
• • « • ' •
(1) • • • • Navigable waters do not
include prior converted cropland.
Notwithstanding the determination of
an area's status as prior converted
cropland by any other federal agency,
for the purposes of the Clean Water Act,
the final authority regarding Clean
Water Act jurisdiction remains with
EPA.
* • » * ' »
|FR Doo 93-20530 Filed fr-24-93; 6.45 ami
•SJSUJMO COOC «M> 18 II
-------
Corrections
VoL 58. No. 177
•*«
Wednesday. Soplombor IS. 1993 .
x
cootekw jwSfcxtel cooscSons of pwvtousV.:.. •
(xjbfehod Presidential, Rui^'.Ftoposad Buia.
eBXJNotfca documents. These correcflorts.are
pcqxtmd 6y ear to ;•
th« apprepdale.'document caloflcxjes;;" .. ..:
'2o:-':r:-':K'-"T-;:.< '
45 C*=R Parts.1207 arid 1'208'v ". '•
.'- >"--;"''-->-;-.-.^ /' "
Senior Cdmpanlbn/Foster Grandparent
• '"•- •'
1. Oa page 45008, in-lhe first -column,
in EFFECTIVE OATS, in the second line.
"(Insert 30 days from the publication In
the Federal Register]." should read
"September 24.1993,
§3233. .[Corrected]
2. Oirpage 45036, in the second
column, in •§ 323-2(dX3)(i£i}. in the last
line, "August 25.1993." should read
"August 25,1996."
isas-ot-o
NUCTJEAH REGULATORY;; :
COMiStSSJON -r'V.
... - . -1 -1*-
Part 73/:.
., ...-... ..• . . .
. &:projwsed?rule.'documenl 93-213.74"
beginning^ "n."j>age:46602.in the issue of
'-
' "iTOii pjage 4660?" in'tn'e third :1 -
colnmiii.ln OATE§, in the second 'line,•';
~October;i8;"i994" should read ' '-'•• "
"October i8,,1993'> -.-•'.
.i.pn"pag4"46603>in'thethird -";:
column, In4Jaiagrapb;4,'after the first
OEPARTMEhfT OF DEFENSE
Department of the Army
Corps of Engineers
33 CFR Parts 323 and 328
ENVIRONMENTAL PROTECTION
AGENCY
40 CFH Parts 110,112,116,117,122,
230,232 and 401
Clean Water Act Regutetory Programs
Cbrrectfon
In rula document 83-20530 beginning
ca page 45008 in the Issue of
Wednesday August 25,1993. make the
following corrections:
DEPARTMENT OF ENERGY.-,'--- .
Federal Energy Regulatory - ,:
••• Commission ;. '.-';-"..."..-;.
' pJoUatNo'l'eaSS-SOT-OOO.-etiEl.].-
Pennsylvanla ElectHcCo:, et al^.*-.:
Electric Rate, Small .Povmr Production,
" andintedo;cWng"Olrect6rata-F»!ngs'- .-
"Correction_.'•• ''.'••', -•' . •
In notice document 93-21949 v .' . '••.•
••• .beginning off page 47439 in the issue of
..•Thursdax./September a,;1993;'oa pagey. • •
.47439; irftb.6 third colunin.-in 4c."r'..- - •;'..'
Portland deneral Electric GJ."." docket
• number "EL93-133-000,'! should read"
"ER93-133-000"..' ..'"•;..' •-"
1505-w-b -. -..--..• •' .- . '• .
Day Firing Qualification <
Tactical Response Team
Armed Response Personnel, and "^rr
Guards at Category I Ucerisees \&:-}'-
Correction '"''" ' ."•''.'
. In rule document 93-21129 beginning
on page 45781 in the issue of Tuesday, •
August 31.1993. make the follovongv.-;
corrections:/.- • -. . : -'•'-:•'
1. On page 45781, in the first column.
§73.46 .[Corrected] ' ' '•'•"• .:--:"'.'V •- '.''•'
• 2. Oh page 4S78S. in" § 73.46(i)(l). in
the first line;- •"November.29..i993!--
should read "May-31; 1994V.;-.
DEPARTMENt'OFTHE JNTERfok-y
Bureau of. Land Management .-
{MT-930-t210-06; MTM 82330J . = • .
Proposed Withdrawal and Opportunity
for Public Meetlng;..Montana. .;, :.
Correction .• ';••'•- -•-'..-;
.: In notice document 93-18447.- '• : . ;
beginning on page 41289 In the issue of
Tuesday, August 3,1993,-on'page "
41290. in'the first column, in-land-'--.- "-• .-
description-T:37N.',;R. 1E.; In'Sec. 2,-: -
"5 to 8" should read "5 and 6":: •• " •• -:.
cooe tsos-os-o ••'- ". '.' ....-•...-.."
DEPARTMENT OF THE TREA'SURY:
'Bureau of .'Alcohol, Tobacco -and
. Firearms
27 CFR Part 24
• [TJ3. ATF-338; Re: Nodce No. 746J •
Change In the Frequency of RHng
. Reports, of Bonded Wine Premises
Operations and Wine Excise Tax'
Returns (92F030P) " •
Correction
In rule document 93--8420 beginning -.
on page 19062 in the issue of Monday,"
April 12, 1993, make the foUpwin'g"T.-~
corrections: " " ~'".'-"^.'
'§24^273 [Corrected] . ":- . ..;,/-'
1. On page -19064,' in the second' : " - '
. column, in § 24.273(a)(l).-ln the thirdr :
Une. insert :')" after "May 12, 1993.".- .-
. 2. On the same page, in the same.- ;-x
column. in;§ 24.273(a)(2), in.the fourth'-:
line, insert ".}" after "May 12. 1993'.% ; :
cooe tsos-ot-o • -.-
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