Monday
May 10, 1999
z ss
Part I!
Department of
Defense
Department of the Army, Corps of
Engineers
Environmental
Protection Agency
33 CFR Part 323
40 CFR Part 232
Revisions to the Clean Water Act
=^ ^= Regulatory Definition of "Discharge of
Dredged Material"; Final Rule
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25120
Federal Register/Vol. 64. No. 89/Monday, May 10. 1999/Rules and Regulations
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 323 .
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 232
[FRL-6338-9]
Revisions to the Clean Water Act
Regulatory Definition of "Discharge of
Dredged Material"
AGENCIES: U.S. Army Corps of
Engineers, Department of the Army,
DOD; and Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The U.S. Army Corps of
Engineers (Corps) and the
Environmental Protection Agency (EPA)
are promulgating a final rule amending
a Clean Water Act (CWA) section 404
regulation that defines the term
"discharge of dredged material." This
action conforms that definition to the
results of a lawsuit holding that by
asserting jurisdiction over any redeposit
of dredged material, including
incidental fallback, the Agencies had
exceeded our statutory authority under
the CWA. Today's action is intended to
comply with the injunction issued by
the district court in that case. Today's
rule responds to the court decision by
deleting language from the regulation
that was held to exceed our CWA
statutory authority'and by adding
clarifying language.
EFFECTIVE DATE: May 10, 1999.
FOR FURTHER INFORMATION CONTACT: For
information on the final rule, contact
Mr. John Lishman of EPA at (202) 260-
9180 or Mr. Mike Smith or Mr. Sam
Collinson of the Corps at (202) 761-
0199. 'For questions on project-specific
activities, contact your local Corps
District office. Addresses and telephone
numbers for Corps District offices can be
obtained from the Corps Regulatory
Homepage at http://
www.usace.army.mil/inet/functions/
cw/cecwo/reg/district.htm. If you do not
have access to the Internet, telephone
numbers for Corps District offices can be
obtained by calling the National
Wetlands hotline at 800-832-7828.
SUPPLEMENTARY INFORMATION:
I. Background
A. Potentially Affected Entities
Persons or entities engaged in
discharging dredged material to waters
of the US could be affected by today's
rule. Today's rule addresses the
regulatory definition of "discharge of
dredged material," a term which is
important in determining what types of
activities do or do not require a CWA
section 404 permit. As described further
below, today's action does not increase
regulatory burdens, but rather conforms
the language in our section 404.
regulations to the outcome of a lawsuit
challenging the regulatory definition.
Examples of entities that might
potentially be affected include:
Category
State/Tribal governments or instrumentalities
Local governments or instrumentalities
Industrial commercial, or agricultural entities '.
Land developers and landowners ".
Examples of potentially affected entities
State/tribal agencies or instrumentalities that discharge dredged mate-
rial to waters of the U.S.
Local governments or instrumentalities that discharge dredged material
to waters of the U.S.
Industrial, commercial, or agricultural entities that discharge dredged
material to waters of the U.S.
Land developers and landowners that discharge dredged material to
waters of the U.S.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities that are
likely to carry out activities affected by
this action. This table lists the types of
entities that the Agencies are now aware
of that carry out activities potentially
affected by this action. Other types of
entities not listed in the table could also
perform activities that are affected. To
determine whether your organization or
its activities are affected by this action,
you should carefully examine the
preamble discussion in section n of
today's final rule. If you still have
questions regarding the applicability of
this action to a particular activity,
consult the Corps District offices as
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. Tulloch Rule and Related Litigation
Section 404 of the Act authorizes the
Corps (or a State -with an authorized
permitting program) to issue permits for
the discharge of dredged or fill material
into waters of the United States. On
August 25, 1993 (58 FR 45008), we
issued a regulation (the "Tulloch rule")
defining the term "discharge of dredged
material" as:
Any addition of dredged material into,
including any redeposit within, the waters of
the United States. The term Includes, but is
not limited to the following: * * * 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.
33 CFR 323.2(d)(l); 40 CFR 232.2.
The American Mining Congress and
several other trade associations
challenged this regulation. On January
23, 1997, the U.S. District Court for the
District of Columbia ruled that the
regulation exceeded our authority under
the CWA because it impermissibly
regulated "incidental fallback" of
dredged material.1 The court concluded
that incidental fallback is not subject to
the CWA as an "addition" of pollutants.
and declared the rule "invalid and set
aside." The Court also enjoined us from
applying or enforcing the regulation.
The government appealed the court's
ruling and, on June 19, 1998, the U.S.
Court of Appeals for the District of
Columbia Circuit affirmed the district. .
court's decision.2 American Mining
Congress v. United States Army Corps of
Engineers, 951 F.Supp. 267 (D.D.C.
1997); affdsub nom, National Mining
Association v. United States Army
Corps of Engineers, 145 F.3d 1339 (D.C.
Cir. 1998) ("NMA").
II. Today's Rule
Today's rule modifies our definition
of "discharge of dredged material" in
order to respond to the Court of
Appeals' holding in NMA, and is
intended to comply with the district
court's injunction. The D.C. Circuit
1 Incidental fallback results in the return of
dredged material virtually to the spot from which
it came. See. NMA. 145 F.3d at 1403.
5 The NMA decision did not address the
definition of "discharge of fill material" (33 CFR
323.2(0: 40 CFR 232.2), and thus did not affect the
regulation of discharges of fill material, nor are the
Agencies altering that definition in today's
rulemaking.
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Federal Register/Vol. 64. No. 89/Monday. May 10. 1999/Rules and Regulations
25121
found that the Tulloch rule changed the
prior regulatory regime by regulating
incidental fallback for the first time. 145
F.3d at 1402. The court found that the
rule accomplished this result by
defining "discharge" to include "any
redeposit" of dredged material. See, 145
F.3d at 1403 ("It is undisputed that by
requiring a permit for 'any redeposit' the
Tulloch rule covers incidental fallback")
(emphasis in original) (citation omitted).
The court concluded that incidental
fallback is not an "addition" of a
pollutant, and that, therefore, our
assertion of authority to regulate any
redeposit of dredged material exceeded
our statutory authority. 145 F.3d at 1405
("We hold only that by asserting
jurisdiction over 'any redeposit,'
including incidental fallback, the
Tulloch rule outruns the Corps's
statutory authority") (emphasis in
original). To conform our regulation to
this holding we have made two
modifications to the rule. First, today's
rule deletes use of the word "any" as a
modifier of the term "redeposit."
Second, today's rule expressly excludes
"incidental fallback" from the definition
of "discharge of dredged material."
Today's rule does not alter the well-
settled doctrine, recognized in NMA,
that some redeposits of dredged material
in waters of the United States constitute
a discharge of dredged material and
therefore require a section 404 permit.
See 145 F.3d at 1405 ("But we do not
hold that the Corps may not legally
regulate some forms of redeposit under
its section 404 permitting authority.");
145 F.3d at 1405, n.6 (recognizing that
"a redeposit could be ari addition to [a]
new location and thus a discharge").
Deciding when a particular redeposit
is subject to CW A jurisdiction will
require a case-by-case evaluation, based
on the particular facts of each case.
Judicial decisions have established, and
the D.C. Circuit recognized in NMA, that
redeposits associated with the following
are subject to CW A jurisdiction:
mechanized landclearing, redeposits at
various distances from the point of
removal (e.g., sidecasting), and removal
of dirt and gravel from a streambed and
its subsequent redeposit in the
waterway after segregation of minerals.
145 F.3d at 1407. See also, Avoyelles
Sportsmen's League v. Marsh, 715 F.2d
897 (5th Cir. 1983) (mechanized
landclearing requires section 404
permit); United Stares v. M.C.C. of
Florida, 772 F.2d 1501 (llth Cir. 1985),
vacated on other grounds, 481 U.S. 1034
(1987), readopted in relevant part on
remand, 848 F.2d 1133 (llth Cir. 1988)
(redeposit of river bottom sediments on
adjacent sea grass beds is an
"addition"); Rybachekv. EPA, 904 F.2d
1276 (9th Cir. 1990) (resuspension of
materials by placer miners as part of
gold extraction operations is an
"addition of a pollutant" under the
CWA subject to EPA's regulatory
authority); NMA 951 F.Supp. at 270
("Sidecasting. which involves placing
removed soil alongside a ditch, and
sloppy disposal practices involving
significant discharges into waters/have
always been subject to section 404").
Determining whether a particular
redeposit constitutes incidental fallback
and, under the court's decision is not
subject to section 404, will also require
evaluation on a case-by-case basis. The
NMA decision indicates incidental
fallback"* * * returns dredged
material virtually to the spot from
which it came." 145 F.3d at 1403. It also
describes incidental fallback as
occurring "when redeposittakes place
in substantially the same spot as the
initial removal." 145 F.3d at 1401.
Similarly, the district court described
incidental fallback as "the incidental
soil movement from excavation, such as
the soil that is disturbed when dirt is
shoveled, or the back-spill that comes
off a bucket and'falls back into the same
place from which it was removed." 951
F.Supp. at 270.
The court in NMA recognized that the
CWA "sets out no bright line between
incidental fallback on the one hand and
regulable redep9sits on the other" arid
that "a reasoned attempt to draw such
a line would merit considerable
deference." 145 F.3d at 1405. We have
not attempted to draw such a line here.
Nor have we evaluated (as we did when
promulgating the Tulloch rule) the
complex legal,'factual and policy
questions associated with interpreting
the reach of the CWA. Rather, we have
promulgated today's rule to comply
with the injunction issued in NMA, and
as described below, will expeditiously
undertake notice and comment
rulemaking tha"t will make a reasoned
attempt to more clearly delineate the
scope of CWA jurisdiction over
redeposits of dredged material in waters
of the U.S. In the interim, we will
determine on a case-by-case basis
whether a particular redeposit of
dredged material in waters of the United
States requires a section 404 permit,
consistent with our CWA authorities
and governing case law. Entities that are
engaging, or intend to engage, in
activities in waters of the U.S. that may
result in a "discharge of dredged
material" as that term is defined in
today's final rule are hereby given
notice that the agencies intend to
regulate those activities that we find,
based on the particular circumstances,
would result in an addition of
pollutants to waters of the U.S.
III. Future Notice and Comment
Rulemaking
As explained1 in the preamble
language accompanying the issuance of •
theTulloch rule (57 FR 26894 (June 16
1992); 58 FR 45008 (August 25, 1993))!
some small volume discharges
associated with mechanized
landclearing. ditching, channelization,
or other excavation activities were not
consistently subject to environmental
review under the pre-Tulloch
regulations even though waters of the
U.S., including wetlands, were
destroyed or degraded. By using
specialized dredging and disposal
techniques some developers sought to
use a loophole in those regulations to
convert wetlands without the need to
obtain a CWA section 404 permit. The
section 404 environmental review
process is not aimed at preventing
development, but instead is designed to
avoid unacceptable adverse
environmental impacts, and to the
extent adverse impacts cannot be
avoided, assure they are appropriately
minimized or mitigated.
The Agencies are particularly
concerned that, without further action
to clarify the definition of "discharge of
dredged material," large-scale
destruction of wetlands could occur,
resulting in increased flooding or runoff
and harm to neighboring property,
pollution of streams and rivers, and loss
of valuable habitat. Moreover, available
information indicates that such losses
are already occurring. Accordingly, the
Agencies will expeditiously undertake
additional notice and comment
rulemaking in furtherance of the CWA's
objective to "restore and maintain the
chemical, physical, and biological
integrity of the Nation's waters."
Additionally, the NMA court recognized
that the CWA "sets out no bright line
between incidental fallback on the one
hand and regulable redeposits on the
other" and that "a reasoned attempt to
draw such a line would merit
considerable deference." (145 F.3d at .
1405). Further rulemaking thus is
appropriate not only to ensure that the
Nation's wetlands and other waters of
the U.S. will continue to receive the
protection required by section 404 of the
CWA, but also to enhance clarity,
certainty, and consistency in
determining what activities are subject
to section 404 in light of the NMA
decision.
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Federal Register/Vol. 64, No. 89/Monday. May 10, 1999/Rules and Regulations
IV. Related Statutes and Executive
Orders
A. Findings Under 5 U.S.C. 553
Under the Administrative Procedure
• Act (APA). 5 U.S.C. 553. agencies are
required to publish a notice of proposed
rulemaking and provide an opportunity
for the public to comment on any
substantive rulemaking action. Notice
and comment is not required, however,
when the agency for good cause finds (and
incorporates the finding and a brief statement
of reasons therefore in the rules issued) that
notice and public procedure thereon are
impracticable, unnecessary, or contrary to the
public interest.
5 U.S.C. 553(b)(3)(B). '
Today's rule merely conforms the
language in our section 404 regulations
to the current status of those regulations
after the NMA case. The district court
judgment, as affirmed by the D.C.
Circuit, invalidated application of our
regulation to incidental fallback and
enjoined us from applying or enforcing
the rule. By expressly excluding
incidental fallback from the definition
of "discharge of dredged material,"
today's revisions conform the
regulations to reflect the legal status quo
in light of the NMA decision. Therefore,
we find that solicitation of public
comment is unnecessary.
Under 5 U.S.C. 553(d)(l) and (3). rules
must be published at least 30 days prior
to their effective date, except where die
rule "grants or recognizes an exemption
or relieves a restriction," or where
justified by the agency for "good cause."
Today's rule, in accordance with the
NMA decision, removes the requirement
for a section 404 permit for incidental
fallback in waters of .the U.S.
Accordingly, today's rule is effective
immediately.
B. Paperwork Reduction Act
The Paperwork Reduction Act, 44
U.S.C. 3501 etseq., is intended to
minimize the reporting and record-
keeping burden on the regulated
community, as well as to minimize the
cost of Federal information collection
and dissemination. In general, the Act
requires that information requests and
record-keeping requirements affecting
ten or more non-Federal respondents be
approved by the Office of Management
and Budget (OMB). The current OMB
approval number for information
requirements related to the CWA section
404 program is 0710-0003 (expires June
30, 2000). Today's rule merely conforms
the definition of "discharge of dredged
material" to reflect the ruling in the
NMA case. It does not establish or
modify any information reporting, or
record-keeping requirements, and
therefore is not subject to the
requirements of the Paperwork
Reduction Act.
C. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 ("NTTAA"), Public Law
104-113. section I2(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
. consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB.
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. Today's
rule does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
D. Other Statutes and Executive Orders
' Today's rule does not establish any •
new requirements, mandates or
procedures. As explained above, today's
rule merely conforms the regulations'
definition of "discharge of dredged
material" to reflect the judicial decision
in the NMA case. Because today's rule
is a "housekeeping" measure
undertaken to conform the regulatory
language to that judicial determination,
it does not result in any additional or
new regulatory requirements. In fact, the
judicial determination which it reflects
has the practical effect of removing
incidental fallback from coverage under
the regulations. Accordingly, it has been
determined that this rule is not a
"significant regulatory action" under
Executive Order 12866. and is therefore
not subject to review by the Office of
Management and Budget. In addition,
this action does not impose any
enforceable duty, contain any unfunded
mandate, or impose any significant or
unique impact on small governments as
described in die Unfunded Mandates
Reform Act of 1995 (Public Law 104-4).
This rule also does not require prior
consultation with State, local, and tribal
government officials as specified by
Executive Order 12875 (58 FR 58093,
October 28, 1993) or Executive Order
13084 (63 FR 27655 (May 10, 1998), or
involve special consideration of
environmental justice related issues as
required by Executive Order 12898 (59
FR 7629, February 16. 1994). Because
tiiis action is not subject to notice-and-
comment requirements under the APA
or any other statute, and because it does
not impose any requirements on small '
entities, it is not subject to the
regulatory flexibility provisions of the
Regulatory Flexibility Act (5 U.S.C. 501
ef seq.). This rule is not subject to E.O
13045 (62 FR 19885, April 23, 1997)
because it is not economically
significant'as defined under E.O. 12866.
Further. EPA interprets E.O. 13045 as
applying only to those regulatory
actions that are based on health or safety
risks such that the analysis required
under section 5-501 of the Order has
die potential to influence the regulation.
This rule is not subject to E.O. 13045
because it does not establish an
environmental standard intended to
mitigate health or safety risks.
The Congressional Review Act. 5
U.S.C. 801 etseq.. as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Section 808 allows
the issuing agency to make a good cause
finding that notice and public procedure
is impracticable, unnecessary or •
contrary to the public interest. This
determination must be supported by a
brief statement. 5 U.S.C. 808(2). As
stated previously, we have made such a
good cause finding, including the
reasons therefore, and established an
effective date of May 10, 1999. We will
submit a report containing this rule and
odier required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This action is not a "major
rule" as defined by 5 U.S.C. 804(2).
List of Subjects
33 CFR Part 323
Navigation, Water Pollution Control,
Waterways
40 CFR Part 232
Environmental protection. Wetlands;
Water Pollution Control.
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Federal Register/Vol. 64. No. 89/Monday, May 10. 1999/Rules and Regulations 25123
Dated: April 27. 1999.
Carol D. Browner,
Administrator. Environmental Protection
Agency.
Dated: April 30, 1999.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works).
Department of the Army.
In consideration of the foregoing, 33
CFR Part 323 and 40 CFR Part 232 are
amended as set forth below:
33 CFR CHAPTER II—CORPS OF
ENGINEERS, DEPARTMENT OF THE ARMY
PART 323—{AMENDED]
1. The authority citation for Part 323
continues to read as follows:
Authority: 33 U.S.C. 1344.
2. Amend section 323.2(d) as follows:
a. In the first sentence of paragraph
(d)(l), remove the words "any redeposit
of dredged material" and add, in their
place, the words "redeposit of dredged
material other than incidental fallback".
b. In paragraph (d)(l)(ill). remove the
words "any redeposit." and add. in their
place, the words "redeposit other than
incidental fallback,".
c. In paragraph (d)(2). add at the end
thereof a new paragraph (d)(2)(iii) to
read as follows:
§232.2 Definitions.
*****
(d) * * *
(2) * * *
(iii) Incidental fallback.
*****
40 CFR CHAPTER 1—ENVIRONMENTAL
PROTECTION AGENCY
PART 232—{AMENDED]
3. The authority citation for Part 232
continues to read as follows:
Authority: 33 U.S.C. 1344.
4. In § 232.2 the definition of
"discharge of dredged material" js
amended as follows:
a. In the first sentence of paragraph
(1). remove the words "any redeposit of
dredged material" and add. in their
place, the words "redeposit of dredged
material other than incidental fallback".
b. In paragraph (l)(iii), remove the '
words "any redeposit," and add, in their
place, the words "redeposit other than
incidental fallback,".
, c. In paragraph (2), add at the end
thereof a new paragraph (2) (iii) to read
as follows:
§232.2 Definitions.
*****
Discharge of dredged material * * *
(2) * * *
(iii) Incidental fallback.
* ' * * . * *
[FR Doc. 99-11680 Filed 5-5-99; 3:41 pm]
BILLING CODE 6560-SO-P
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