Further Revisions to the Clean Water Act Regulatory Definition of
``Discharge of Dredged Material''
[Federal Register: August 16, 2000 (Volume 65, Number 159)]
[Proposed Rules]
[Page 50107-50117]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au00-32]
[[Page 50107]]
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Part IV
Department of Defense
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Department of the Army, Corps of Engineers
33 CFR Part 323
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Environmental Protection Agency
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40 CFR Part 232
Further Revisions to the Clean Water Act Regulatory Definition of
``Discharge of Dredged Material''; Proposed Rule
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 323
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 232
[FRL-6852-1]
Further 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: Proposed rule.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental
Protection Agency (EPA) are publishing a proposed rule that would amend
our Clean Water Act (CWA) section 404 regulations defining the term
``discharge of dredged material.'' Today's proposal is intended to
identify types of activities that are likely to result in a discharge
of dredged material subject to CWA section 404. The proposal would
enhance protection of the Nation's aquatic resources, including
wetlands, by amending the regulations to establish a rebuttable
presumption that mechanized landclearing, ditching, channelization, in-
stream mining, or other mechanized excavation activity in waters of the
United States result in more than incidental fallback, and thus involve
a regulable discharge of dredged material.
DATES: Written comments must be submitted by October 16, 2000.
ADDRESSES: Written comments and enclosures should be mailed or hand-
delivered to: Office of the Chief of Engineers, ATTN CECW-OR (3 F73),
Further Revisions to Definition of Discharge of Dredged Material, 441 G
Street, NW., Washington, DC 20314-1000. Comments may also be submitted
electronically to: CECWOR@HQ02.USACE.Army.Mil. Electronic comments must
be submitted as a Word Perfect, Word, or ASCII file, and avoid the use
of special characters or any form of encryption.
We request that commenters submit any references cited in their
comments. We also request that commenters submit an original and 2
copies of their written comments and enclosures. Commenters that want
receipt of their comments acknowledged should include a self-addressed,
stamped envelope. All comments must be postmarked, delivered by hand,
or provided by e-mail. No facsimiles (faxes) will be accepted.
A copy of the supporting documents for this proposed rule is
available for review at the U.S. Army Corps of Engineers, located at
441 G Street, NW., Room 3F73, Washington, DC 20314-1000. For access to
docket materials, call (202) 761-4598 between 9 a.m. and 3:30 p.m. for
an appointment.
FOR FURTHER INFORMATION CONTACT: For information on the proposed rule,
contact either Mr. Mike Smith, U.S. Army Corps of Engineers, ATTN CECW-
OR (3F73), 441 G Street, NW., Washington, DC 20314-1000, phone: (202)
761-4598, or Mr. John Lishman, U.S. Environmental Protection Agency,
Office of Wetlands, Oceans and Watersheds (4502F), 1200 Pennsylvania
Avenue N.W., Washington, DC 20460, phone: (202) 260-9180.
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
Persons or entities that discharge material dredged or excavated
from waters of the U.S. could be regulated by today's proposed rule.
The CWA generally prohibits the discharge of pollutants into waters of
the U.S. without a permit issued by EPA or a State approved by EPA
under section 402 of the Act, or, in the case of dredged or fill
material, by the Corps or an approved State under section 404 of the
Act. Today's proposal addresses the CWA section 404 program's
definition of ``discharge of dredged material,'' which is important for
determining whether a particular discharge is subject to regulation
under CWA section 404. Today's proposal identifies types of activities
that are likely to result in a discharge of dredged material subject to
CWA section 404. Examples of entities potentially regulated include:
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Examples of potentially
Category regulated entities
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State/Tribal governments or State/Tribal agencies or
instrumentalities. instrumentalities that
discharge dredged material
into waters of the U.S.
Local governments or instrumentalities Local governments or
instrumentalities that
discharge dredged material
into waters of the U.S.
Federal government agencies or Federal government agencies or
instrumentalities. instrumentalities that
discharge dredged material
into waters of the U.S.
Industrial, commercial, or Industrial, commercial, or
agricultural entities. agricultural entities that
discharge dredged material
into waters of the U.S.
Land developers and landowners........ Land developers and landowners
that discharge dredged
material into waters of the
U.S.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that are likely to be regulated by
this action. This table lists the types of entities that we are now
aware of that could potentially be regulated by this action. Other
types of entities not listed in the table could also be regulated. To
determine whether your organization or its activities are regulated by
this action, you should carefully examine EPA's applicability criteria
in section 230.2 of Title 40 of the Code of Federal Regulations, the
Corps regulations at part 323 of Title 33 of the Code of Federal
Regulations, and the preamble discussion in Section III of today's
proposal. If you have questions regarding the applicability of this
action to a particular entity, consult one of the persons listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
II. Background
A. Plain Language
In compliance with President Clinton's June 1, 1998, Executive
Memorandum on Plain Language in government writing, this preamble is
written using plain language. Thus, the use of ``we'' in this action
refers to EPA and the U.S. Army Corps of Engineers (Corps), and the use
of ``you'' refers to the reader.
B. Litigation Involving Previous Rulemaking
Section 404 of the CWA authorizes the Corps (or a State with an
approved section 404 permitting program) to issue permits for the
discharge of dredged or fill material into waters of the U.S. Two
[[Page 50109]]
States (New Jersey and Michigan) have assumed the CWA section 404
permitting program. On August 25, 1993 (58 FR 45008), we issued a
regulation (the ``Tulloch rule'') that defined the term ``discharge of
dredged material'' as including ``any addition, including any
redeposit, of dredged material, including excavated material, into
waters of the United States which is incidental to any activity,
including mechanized landclearing, ditching, channelization, or other
excavation that destroys or degrades waters of the United States.'' The
American Mining Congress and several other trade associations
challenged the revised definition of the term ``discharge of dredged
material,'' and on January 23, 1997, the U.S. District Court for the
District of Columbia ruled that the regulation exceeded our authority
under the CWA because it impermissibly regulated ``incidental
fallback'' of dredged material and enjoined us from applying or
enforcing the regulation. That ruling was affirmed on June 19, 1998, by
the U.S. Court of Appeals for the District of Columbia Circuit.
American Mining Congress v. United States Army Corps of Engineers, 951
F.Supp. 267 (D.D.C. 1997) (``AMC''); aff'd sub nom, National Mining
Association v. United States Army Corps of Engineers, 145 F.3d 1339
(D.C.Cir. 1998) (``NMA''). Because that decision addresses the
definition of the ``discharge of dredged material,'' it does not
affect, nor would today's proposal alter, the requirements governing
discharges of fill material.
The NMA court described incidental fallback as returning ``* * *
dredged material virtually to the spot from which it came'' (145 F.3d
at 1403), as well as occurring ``when redeposit takes place in
substantially the same spot as the initial removal.'' 145 F.3d at 1401.
The court concluded that incidental fallback is not an ``addition'' of
a pollutant, and that, therefore, our assertion of authority to
regulate any redeposit of dredged material exceeded our authority under
the CWA: ``We hold only that by asserting jurisdiction over `any
redeposit,' including incidental fallback, the Tulloch rule outruns the
Corps's statutory authority.'' 145 F.3d at 1405 (emphasis in original).
Information from our District and Regional offices and the States,
included in the administrative record, indicates that since the
District Court decision, upwards of 20,000 acres of wetlands were
subject to ditching and more than 150 miles of streams channelized
without undergoing section 404 environmental review or mitigation.
Losses on this scale carry the potential for increased flooding or
runoff and harm to downstream property, pollution of streams and
rivers, degradation of water quality, and loss of aquatic habitat. In
comparison, wetlands activities taking place under section 404
permitting are subject to careful review in order to avoid and minimize
impacts, and unavoidable losses are subject to mitigation in order to
compensate for the loss of wetlands functions and values. In fiscal
year 1999, approximately 21,500 acres of permitted wetlands losses took
place, but these were offset by approximately 46,000 acres of
compensatory mitigation.
The losses due to ditching and stream channelization reflect best
available estimates using information from EPA Regional offices, Corps
District Offices, and the States. Given that the activities causing
such losses take place without review under the CWA section 404 permit
program and are not systematically reported or tracked, we believe that
these numbers are likely to be under-estimates. We invite the public to
submit further relevant information, which should be sent to the
address specified in the ADDRESSES section of this preamble.
C. Rulemaking To Respond to NMA Decision
On May 10, 1999, we issued a final rule modifying our definition of
``discharge of dredged material'' in order to respond to the Court of
Appeals'' holding in NMA, and to ensure compliance with the District
Court's injunction (64 FR 25120). That rule made those changes
necessary to conform the regulations to the Court's decision, primarily
by modifying the definition of ``discharge of dredged material'' to
expressly exclude regulation of ``incidental fallback.'' As explained
in the preamble to that rulemaking, our determination of whether a
particular redeposit of dredged material in waters of the U.S. requires
a section 404 permit would be done on a case-by-case basis, consistent
with our CWA authorities and governing case law.
The preamble to our May 10, 1999, rulemaking stated that we would
be undertaking additional notice and comment rulemaking in furtherance
of the CWA's objective to ``restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' The NMA
Court did not find that all redeposits are unregulable, and recognized
that redeposits at various distances from the point of removal are
properly the subject of regulation under the CWA. The Court also noted
that the CWA ``sets out no bright line between incidental fallback on
the one hand and regulable redeposits on the other'' and that ``a
reasoned attempt to draw such a line would merit considerable
deference.'' (145 F.3d at 1405).
Since the NMA decision, there has been confusion around the country
as to what activities are likely to result in regulable discharges of
dredged material. Today's proposal would establish a rebuttable
presumption that mechanized landclearing, ditching, channelization, in-
stream mining, or other mechanized excavation activity in waters of the
U.S. will result in regulable discharges of dredged material. Based on
our experience with dredging and excavation activities, including the
administrative record underlying the Tulloch rule, and as explained
further in section III.B. of today's preamble, the nature of these
activities and the types of equipment used will by their very nature
produce discharges of dredged material unless specialized and
sophisticated techniques and equipment are used to ensure that only
incidental fallback will result.
The agencies are concerned that without this additional rulemaking,
unregulated discharges consisting of more than incidental fallback may
continue to occur and result in large-scale destruction of wetlands and
degradation of many miles of streams and other waters of the U.S. Such
wetlands loss and water body degradation have the potential to result
in increased flooding or runoff, harm to downstream people and
property, pollution of lakes, rivers and streams, destruction of
commercial fisheries, closures of shellfish beds, diminution and
degradation of drinking water supplies, and loss of wildlife habitat.
This proposed rulemaking will assist in implementing the CWA's express
mandate to regulate the discharge of dredged material and to serve
Congress's intent to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.'' This proposal also will
help in achieving greater consistency in the application of section 404
of the CWA.
D. Overview of Relevant Case Law
As the NMA Court and other judicial decisions recognize, the
redeposit of dredged material ``some distance'' from the point of
removal--including the distance from a ditch to the edge of a ditch--
constitutes a regulable redeposit. NMA, 145 F.3d at 1407 (redeposit at
``some distance'' from the point of removal is within the ``pre-Tulloch
core''); United States v. Deaton, No. 98-2256 (4th Cir. 2000) slip op.
at 6-10
[[Page 50110]]
(upholding regulation of sidecasting); United States v. M.C.C. of
Florida, 722 F.2d 1501 (11th Cir. 1985), vacated on other grounds, 481
U.S. 1034 (1987), readopted in relevant part on remand, 848 F.2d 1133
(11th Cir. 1988) (redeposit of river bottom sediments on adjacent sea
grass beds is an ``addition'').
Indeed, because dredged material by definition is material that is
dredged or excavated from waters of the U.S. (see, 33 CFR 323.2(c); 40
CFR 232.2), the discharge of dredged material is by its very nature a
redeposit of such material. As the Fifth Circuit observed in Avoyelles:
``No one has argued here that the materials must come from an external
source in order to constitute a discharge necessitating a Section 404
permit, nor would we expect them to, since Section 404 refers to
`dredged' or `fill' material. * * * `[D]redged' material is by
definition material that comes from the water itself. A requirement
that all pollutants must come from outside sources would effectively
remove the dredge-and-fill provision from the statute.'' 715 F.2d at
924 n. 43. See also, Deaton, at 12. Likewise, Avoyelles recognized with
respect to mechanized landclearing that ``the term `discharge' covers
the redepositing of materials taken from the wetlands'' Avoyelles
Sportsmen's League v. Marsh, 715 F.2d 897 at 923 (5th Cir. 1983); and
for backfilling of trenches with the excavated material (United States
v. Mango, 997 F. Supp. 264, 285 (N.D.N.Y. 1998), affirmed in part,
reversed in part on other grounds, 199 F.3d 85 (2d Cir. 1999); Iroquois
Gas Transmission System v. FERC, 145 F.3d 398, 402 (2nd Cir. 1998);
see, Slinger Drainage Inc., CWA Appeal No. 98-10 (EPA Environmental
Appeals Board (EAB) decision holding that backfilling by a Hoes
trenching machine is a regulable discharge of dredged material, not
incidental fallback)); see also, Rybachek v. EPA, 904 F.2d 1276 (9th
Cir. 1990) (removal of dirt and gravel from a streambed and its
subsequent redeposit in the waterway after segregation of minerals is
an ``addition of a pollutant'' under the CWA subject to EPA's section
402 regulatory authority).
Courts have similarly recognized that sidecasting (the piling of
excavated dirt on the edge of a ditch or elsewhere in a wetland or
other water of the U.S.) has long been a discharge regulated under CWA
section 404. NMA, 145 F.3d at 1407 (D.C. Cir. 1998) (noting that the
Corps has always regulated ``sidecasting''); see also, 58 FR 45,008,
45,013 (Aug. 25, 1993) (noting that sidecasting has ``always been
regulated under Section 404.'').
The most recent judicial decision reaffirming that sidecasting is a
regulable discharge of a pollutant subject to CWA section 404 is United
States v. Deaton, No. 98-2256 (4th Cir. 2000). That case involved use
of a backhoe, a front-end track loader, and a bulldozer to dig a 1,240
foot ditch that intersected non-tidal wetlands in an effort to drain
them, with the contractor piling the excavated dirt on either side of
the ditch. The government filed a civil complaint alleging that the
Deatons had violated the CWA by discharging the material excavated from
the ditch into a wetland without a CWA section 404 permit.
Subsequent to the filing of that complaint, however, the Fourth
Circuit issued a decision in another case, United States v. Wilson, 133
F.3d 251 (4th Cir. 1997), in which a divided panel considered, among
other issues, whether sidecasting was a regulable discharge. One judge
concluded that sidecasting did not constitute the discharge of a
pollutant under the CWA, one judge concluded that it did, and one judge
concurred in the judgment without reaching the sidecasting question.
After the Wilson decision was issued, the District Court in the Deaton
case entered an order on June 23, 1998, noting that although it agreed
with the judge in Wilson who concluded that sidecasting is a regulable
discharge (see Wilson, 133 F.3d at 266-75 (op. of Payne, J.)), the
Court predicted that the Fourth Circuit would adopt the reasoning of
the judge who concluded that it is not (see Wilson, 133 F.3d at 258-60
(op. of Niemeyer, J.)). Following an order granting summary judgment
for the Deatons, the government appealed to the Fourth Circuit.
On appeal, a unanimous panel of the Fourth Circuit reversed the
District Court decision, holding that sidecasting is the discharge of a
pollutant that violates the CWA when conducted without a permit. In the
Deaton case, the defendants sought to use the NMA decision to argue
that ``[b]ecause sidecasting results in no net increase in the amount
of material present in the wetland * * * it does not involve the
`addition' (or discharge) of a pollutant.'' Deaton at 12. The Fourth
Circuit, however, specifically rejected this argument, determining
that:
Contrary to what the Deatons suggest, the statute does not
prohibit the addition of material; it prohibits ``the addition of
any pollutant.'' The idea that there could be an addition of a
pollutant without an addition of material seems to us entirely
unremarkable, at least when an activity transforms some material
from a nonpollutant into a pollutant, as occurred here. In the
course of digging a ditch across the Deaton property, the contractor
removed earth and vegetable matter from the wetland. Once it was
removed, that material became ``dredged spoil,'' a statutory
pollutant and a type of material that up until then was not present
on the Deaton property. It is of no consequence that what is now
dredged spoil was previously present on the same property in the
less threatening form of dirt and vegetation in an undisturbed
state. What is important is that once that material was excavated
from the wetland, its redeposit in that same wetland added a
pollutant where none had been before. See 33 U.S.C. sections 1362
(6), (12). Thus, * * * sidecasting adds a pollutant that was not
present before. Deaton at 12-13.
In reaching this conclusion, the Fourth Circuit also found that the
adverse effects of redeposits:
[a]re no less harmful when the dredged spoil is redeposited in
the same wetland from which it was excavated. The effects on
hydrology and the environment are the same. Surely Congress would
not have used the word ``addition'' (in ``addition of any
pollutant'') to prohibit the discharge of dredged spoil in a
wetland, while intending to prohibit such pollution only when the
dredged material comes from outside the wetland. In reaching this
conclusion, our understanding of the word ``addition'' is the same
as that of nearly every other circuit to consider the question.
Deaton at 16 (citations omitted).
Backfilling, which involves the placement of a substantial amount
of excavated material back into the trench, ditch or hole from which it
was excavated, has also been found to be a regulable discharge by the
courts. For example, backfilling occurs when a trench is dug in a
wetland and the dredged material is then pushed back into the trench
from which it came. Such substantial redeposits of dredged material
into the removal site have been found to constitute regulable
discharges under CWA section 404. United States v. Mango, 997 F. Supp.
264, 285 (N.D.N.Y. 1998), affirmed in part, reversed in part on other
grounds, 199 F.3d 85 (2d Cir. 1999) (backfilling into ditch is properly
subject to section 404); see, Iroquois Gas Transmission System v. FERC,
145 F.3d 398 at 402 (2nd Cir. 1998); see also, Slinger Drainage Inc.,
CWA Appeal No. 98-10 (EPA EAB decision holding that near simultaneous
cutting of trench and backfilling by a Hoes trenching machine is a
regulable discharge of dredged material, and not incidental fallback).
Similarly, when a bulldozer blade pushes wetland soils and vegetation
and redeposits these materials into piles in a water of the U.S., a
regulable discharge occurs. Avoyelles, supra. Such a discharge may
[[Page 50111]]
result even when material is temporarily stockpiled. United States v.
Bay-Houston Towing Company, No. 98-73252 (E.D. Mich. 2000) at 8 -9
(peat harvesting that involves spreading of sidecast bog material for
future harvest for a period of time varying from a few hours to a few
days or more is more than mere ``incidental fallback''); see also,
United States v. Bay-Houston Towing Company, 33 F.Supp.2d 596, 606--607
(E.D. Mich. 1999) (denial of motion for summary judgment).
III. Today's Proposed Rule
A. Summary
In order to enhance environmental protection and help ensure that
regulable discharges are subject to section 404 in a manner consistent
with the NMA and other judicial decisions, we have undertaken today's
proposed rulemaking. Today's proposed rule would modify our definition
of ``discharge of dredged material'' by establishing a rebuttable
presumption that regulable discharges result from certain types of
activities in waters of the U.S. In particular, the proposal would
apply the rebuttable presumption to mechanized landclearing, ditching,
channelization, in-stream mining, or other mechanized excavation
activity in waters of the U.S., including wetlands. This would be done
by adding a new paragraph (2) to the definition of ``discharge of
dredged material'' in the Corps'' regulations at 33 CFR 323.2(d) and in
the EPA regulations at 40 CFR 232.2.
In addition, today's proposal would remove existing paragraph
3(iii) from the Corps' regulations at 33 CFR 323.2(d) and the
counterpart EPA regulation at 40 CFR 232.2. That paragraph contains a
``grandfather'' provision for certain activities to be completed by
August 24, 1995, and further provides the grandfather provision may not
extend beyond August 25, 1996. Because the provision is now outdated,
it would be deleted by today's proposal.
B. Rebuttable Presumption of Discharge
We believe the proposed approach is reasonable because it
recognizes that, as a general matter, the activities in question
typically are conducted in a manner that results in the redeposit of
dredged material that constitutes the addition of pollutants to waters
of the U.S.. The CWA broadly prohibits the discharge, without a permit,
of any pollutant into ``navigable waters.'' See 33 U.S.C. 1311(a). The
Act defines ``discharge of a pollutant'' to mean ``any addition of any
pollutant to navigable waters from any point source.'' 33 U.S.C.
1362(12). The definition of pollutant specifically includes ``dredge
spoil'' that has been ``discharged into water.'' 33 U.S.C. 1362(6). As
the court in Deaton noted, ``It is of no consequence that what is now
dredged spoil was previously present on the same property in the less
threatening form of dirt and vegetation in an undisturbed state. What
is important is that once that material was excavated from the wetland,
its redeposit in that same wetland added a pollutant where none had
been before. See 33 U.S.C. 1362(6), (12).'' Deaton, at 12. ``In
deciding to classify dredged spoil as a pollutant, Congress determined
that plain dirt, once excavated from waters of the U.S., could not be
redeposited into those waters without causing harm to the
environment.'' Deaton, at 13.
Activities that would be subject to the rebuttable presumption
typically use mechanized equipment that redeposits dredged material in
a manner and amount that is different from, or greater than, incidental
fallback. For example, during mechanized landclearing, implements are
scraped along the surface or pushed into the ground and then moved
through the soil, usually by bulldozers or loaders. The machinery used
in mechanized landclearing normally scrapes, picks up, moves, or
otherwise displaces debris and soil. Brushrakes, rootrakes, chunkrakes,
disc harrows, root plows, rippers, bulldozer plows, and many types of
shearing blades are examples of the type of equipment used in
mechanized landclearing. Brushrake tines scrape below the ground level
to gather and stockpile slash and loose rock. Chunkrakes have bowl
shaped blades frequently up to two feet or more in diameter, which cut
into the ground and fluff the soil. Disc harrows knock down, chop and
partially bury weeds, brush, and small saplings by using concave discs,
two feet or more in diameter with sharp scalloped edges. Rootrakes
remove roots and stumps by use of a fork-like blade pushed through the
soil. Tractor-mounted shearing blades, which can weigh up to several
thousand pounds, move large amounts of debris, soil, and roots when
dragged along the surface of the ground. Rippers and deep plows are
pulled along below the soil surface to break up hard pans or other
stiff subsoil. The arm which attaches them to the bulldozer or loader
also drags through the ground, moving soil aside. Where the disc, tine,
or rake scrapes or penetrates the ground, soil is displaced in front of
the machine and come to rest in a new location.
Use of equipment such as bulldozers and graders in mechanized
landclearing typically moves substantial amounts of soil beyond the
spot of removal and within waters of the U.S. For example, when a
bulldozer is operated in a wetland, wetland soils are pushed along by
the blade of the bulldozer and are redeposited at various points beyond
the spot of removal. When mechanized equipment, such as graders or
bulldozers, are used to level or grade a wetland, wetland soils are
pushed by the blades and redeposited elsewhere in the wetland. These
are regulable discharges of dredged material. Avoyelles, supra.
Other types of mechanized landclearing equipment can substantially
disturb and relocate soil and sediments. Tree pushers and tree
splitters, for instance, normally uproot trees and redistribute soil. A
tree pusher uses a bar mounted to the front of a bulldozer or loader
while a tree splitter uses a V-shaped blade which is usually about 18
to 20 feet in length. A tree pusher or tree splitter knocks the tree
down and in so doing rips the roots out of the ground. Any roots
remaining are then typically removed from the ground by the bulldozer's
blade.
We also recognize that not all equipment used to remove trees
disturbs root systems, or otherwise causes a discharge of dredged
material. Some tree shears or tree pinchers, for example, cut
vegetation above the ground while leaving the soils and roots intact,
and, as recognized by the existing regulations (33 CFR 323.2(d)(2)(ii)
and 40 CFR 232.2), this does not result in a discharge of dredged
material.
During excavation, material in either a solid or semi-solid form is
removed from the waters of the U.S., and, unless highly specialized
techniques are used, is typically redeposited in areas of waters of the
U.S. beyond the excavation site. Most ditching and channelization
activities use mechanized equipment of some type such as backhoes,
bulldozers, dippers, or bucket dredges. A backhoe, a hoe-type or pull-
type shovel attached to the back of a front loader, shovels and then
lifts soil or sediments from waters of the U.S. It is often used during
the construction of ditches or for stream channelization projects. A
dipper and bucket dredge operate at the end of a boom attached to a
crane or other vehicle. Buckets are suspended from a cable and dippers
are fixed directly to the boom. Typically a crane drops the bucket into
the soil or through the water column to the bottom. The bucket is
filled with soil or sediments and lifted from the water or off the
ground and
[[Page 50112]]
dropped or sidecast on adjacent mounds or placed directly into vehicles
and moved to another disposal site.
Bucket dredging for ditching and channelization projects typically
is done with a deadline or other equipment of this kind. They operate
by dropping the bucket into the soil or sediment and then dragging it
through the soil or sediment until it is filled. In many stream
channelization projects, bulldozers push sediments, including cobble,
gravel, and sand, from a particular place in the stream to another
location. The bulldozer blade is lowered into the bottom of the stream
and moved forward, which pushes sediment to another location in the
stream or to an upland area. Because of the soil movement and
relocation of material, the use of bulldozers, deadlines, and backhoes,
or other equipment of this kind will almost always result in discharges
to waters of the U.S. For example, when a deadline or backhoe gathers
dredged material, it displaces and redeposits soils and sediments to
various distances from the initial excavation point. This type of
displacement and redeposition also occurs as a bulldozer pushes
sediments during a stream channelization project.
The mechanized equipment used for excavation and channelization
activities typically results in suspension and distribution of material
into the water column where it raises turbidity levels and may release
contaminants into the water column. The result is that toxics, metals
and other pollutants that were buried in sediment, held by anaerobic
soils, or taken up by submerged aquatic vegetation, can be released and
distributed in the water column and become available to fish and other
aquatic life and degrade water quality. In addition, the dredged
material suspended in the water column can be carried far downstream
from the excavation point by river, stream, ditch, or wetland current
before it settles out.
Wetlands perform a vital role in the hydrologic cycle by trapping
sediment and toxic and nontoxic pollutants before discharging the water
to rivers, streams or other water bodies. Deaton at 13; U.S. v.
Riverside Bayview Homes, 474 U.S. 121 (1985) at 133-135; Office of
Technology Assessment, U.S. Congress. 1984. Wetlands: Their Use and
Regulation, at 48-50 (hereafter referred to as ``OTA''). Over time,
many of these pollutants decompose, degrade or are absorbed by wetland
vegetation. Deaton at 13; OTA Report at 48-49. A number of conditions
allow wetland soils to immobilize trace and toxic metals, including an
anaerobic reducing environment, neutral pH levels, and the presence of
organic matter. W.J. Mitsch and J.G. Gosselink. 1986. Wetlands, at
chapter 5. Gambrel, R.P. 1994. ``Trace and Toxic Metals in Wetlands: A
Review.'' Journal of Environmental Quality 23: 883-891, 883. Anaerobic
conditions occur when wetland soils are saturated by water. This is
also true of lake, river, and stream bottoms. As available dissolved
oxygen is consumed by microbial respiration in the soil, microbes use
oxidized materials that offer alternate electron acceptors, such as
nitrate, ferric iron, manganic manganese, and sulfate sulfur. This
helps immobilize metals in wetland soils. Anaerobic bacterial action
can also treat some toxics. For example, mercury can, under anaerobic
conditions, be mediated in a wetland by sulfate reducing bacteria. C.H.
Driscoll, J. Holsapple, C.L. Schofield and R Munson. 1998. ``The
Chemistry and Transport of Mercury in a Small Wetland in the Adirondack
Region of New York, USA.'' Biogeochemistry 40: 137-146. (For an
additional discussion of factors affecting bioavailability of
contaminants in sediment, see, U.S. Army Corps of Engineers, Waterways
Experiment Station. 1991. Miscellaneous Paper D-91-2, Assessing
Bioaccumulation in Aquatic Organisms Exposed to Contaminated
Sediments).
Wetland plants help attenuate the flow of surface waters and cause
metal-contaminated particles to settle into sediment. The rhizomes and
roots of the plants stabilize the wetland bottom, helping to transform
it into a sink for toxics and contaminated sediment. A.S. Mungur,
R.B.E. Shutes, D.M. Revitt and M.A. House. 1995. ``An Assessment of
Metal Removal from Highway Runoff by a Natural Wetland.'' Water Science
Technology Vol. 32, No. 3, 169-175. Water soluble metals, in
particular, are easily dissolved into water and are readily taken up by
wetland vegetation. Gambrel at 884-885.
When a wetland system is disrupted by activities such as excavation
and the dredged material is redeposited, the bonds that held toxics,
heavy metals, and other pollutants can be broken, and pollutants can
become mobile. ``When a wetland is dredged, however, and the dredged
spoil is redeposited in the water or wetland, pollutants that had been
trapped may be suddenly released.'' Deaton at 13-14; OTA Report at 49
(``Natural or manmade alterations of the wetland caused by * * *
dredging and the like, could mobilize large quantities of toxic
materials.'') Using a backhoe to dig a ditch and redeposit dredged
material in a wetland, for example, can resuspend pollutants, such as
toxics and heavy metals, that were held by the wetland soils in
anaerobic conditions. Resuspending sediment creates turbidity, and
suspended particles can settle out in new sites in the wetland or in
downstream receiving waters. When sediment is resuspended it becomes
biologically available again--fish and other organisms can ingest the
sediment and heavy metals, toxics, pesticides, and other pollutants
that were formerly trapped by the wetland. Pollutants that were
formerly immobilized in wetland soils will be circulating in the food
chain. Moreover, pollutants in sediment can become quite mobile when
resuspended in water and break off from the sediment once the sediment
is resuspended in water. U.S. Army Corps of Engineers, Waterways
Experiment Station at 24-25.
The longer the sediment is resuspended in water, the greater the
opportunity for formerly trapped pollutants, such as PCBs, to break
away from the sediment and enter into the water column. F.A. DiGiano,
C.T. Miller and J.Yoon. 1993. ``Predicting Release of PCBs at Point of
Dredging.'' Journal of Environmental Engineering Vol. 119, No. 1 72-87,
86. The finer particles stay suspended in water much longer than
heavier particles of sediment. In addition, such finer particles have a
particular affinity for contaminants (e.g., toxics). U.S. Army Corps of
Engineers, Waterways Experiment Station, supra, at 23. Ingestion of
metals, toxics, pesticides, and other such pollutants can be extremely
harmful to wildlife and humans, sometimes even in small concentrations.
U.S. Environmental Protection Agency. 1998. National Sediment Quality
Survey (EPA 823-R-97-006).
When excavation and redeposit of dredged material suspends toxics,
metals, dirt and other pollutants in the water column, suspended
pollutants can be carried downstream by river, stream, ditch, or
wetland current. When dredged material is excavated and redeposited in
a wetland, pollutants that were previously buried or covered over can
become exposed. When exposed to waterflow from the wetland, the newly
exposed pollutants may be carried down the ditch and transported to new
receiving waters or to other parts of the wetland. Similarly, when
lakes, rivers, or streams are excavated and dredged material
redeposited, toxics, metals and other pollutants that were buried in
sediment and held by anaerobic soils are released to the water column
and become available to fish and other aquatic life. The suspension and
distribution of toxics and other pollutants in the water column
degrades
[[Page 50113]]
water quality. Increased turbidity can also harm aquatic life,
smothering fish nurseries, mussels and benthic life and killing
submerged aquatic vegetation. The current can carry suspended sediment
and dissolved pollutants downstream. This is particularly true for
smaller particles of sediment and dissolved chemicals and other
pollutants.
Furthermore, when dredged material is sidecast, stockpiled,
backfilled, or otherwise redeposited, the chemical bonds, that held
pollutants in anaerobic wetland soils or lake, river, or stream
bottoms, may be broken, releasing these pollutants. See, Wilson, 133
F.3d at 273-74 (op. of Payne, J.) (describing how sidecasting dredged
material threatens to release pollutants contained in sub-surface
soil). See also, Gambrel at 883-884. When soils become oxidized, pH
levels become acidic, and many metals, particularly inorganic
compounds, change to more mobile forms and may become bioavailable to
aquatic organisms. In addition, sediment containing metal complexes
with large molecular-weight organic material will also become more
mobile as organic matter is lost over time while sitting in the
sidecast or other redeposited pile of dredged material. See, Gambrel at
888. Furthermore, discharging dredged spoil into a wetland during
excavation ``can degrade water quality by obstructing circulation
patterns that flush large expanses of wetland systems, by interfering
with the filtration function of wetlands, or by changing the aquifer
recharge capability of a wetland.'' 40 CFR 230.41(b).
When dredged material is redeposited, it is exposed to aerobic
conditions, pH levels become acidic, microbial action changes, and,
over time, its organic matter decomposes. In other words, the
conditions which optimize the retention of trace and toxic metals by
wetland soils--an anaerobic reducing environment, neutral pH levels,
microbial action, and organic matter--are destroyed and toxics, heavy
metals and other pollutants become available for transport. Thus,
toxics, heavy metals, pesticides and other pollutants that were
formerly trapped by wetland soils can become available to the aquatic
environment.
Finally, the impacts resulting from redeposit of dredged material
are not limited to contaminated material alone. ``Indeed, several
seemingly benign substances like rock, sand, cellar dirt, and
biological materials are specifically designated as pollutants under
the Clean Water Act. Congress had good reason to be concerned about the
reintroduction of these materials into the waters of the United States,
including the wetlands that are a part of those waters.'' Deaton at 13
(citation omitted). ``Even in a pristine wetland or body of water, the
discharge of dredged spoil, rock, sand, and biological materials
threatens to increase the amount of suspended sediment, harming aquatic
life.'' Deaton at 15. Such suspension and distribution of even clean
material in the water column can adversely affect water quality and
aquatic life due to increases in turbidity. U.S. Environmental
Protection Agency. 1999. Protocol for Developing Sediment TMDLs, First
Edition (EPA 841-B-99-004) at 2-1. Where currents are flowing, such as
in streams and rivers, redeposited material can be transported
downstream away from the point of excavation before settling on the
bottom. Excavation and redeposit of material can also result in
vertical redistribution of sediment layers by relocating underlying
soil or sediments upwards to the top layer. This can produce polluting
effects due to physical alteration of aquatic habitat, such as changes
to the waterbody's substrate or its grain size distribution.
Persons proposing to conduct activities subject to today's proposal
may rebut the presumption that a regulable discharge of dredged
material would occur by showing that the activity is planned and
conducted so as to result only in incidental fallback. As we discussed
in the May 10, 1999, rulemaking, incidental fallback ``returns dredged
material virtually to the spot from which it came.'' NMA, 145 F.3d at
1403; see also, NMA, 145 F.3d at 1401 (incidental fallback occurs
``when redeposit takes place in substantially the same spot as the
initial removal);'' see also, AMC, 951 F. Supp. at 270 (incidental
fallback is ``the incidental soil movement from excavation, such as the
soil that is disturbed when dirt is shoveled, or the back-spill that
comes off a bucket and falls back into the same place from which it was
removed.'')
However, as we discussed in section II of today's preamble, the
exclusion for incidental fallback does not alter the well-settled
doctrine, recognized in NMA, that many redeposits of dredged material
in waters of the U.S. constitute a discharge of dredged material and
therefore require a section 404 permit. See, 145 F.3d at 1405, n. 6
(recognizing that ``a redeposit could be an addition to [a] new
location and thus a discharge''). Deciding whether the presumption of
discharge is rebutted will involve an evaluation based on the
particular facts of each case. Persons planning to engage in mechanized
landclearing, ditching, channelization, in-stream mining, or other
mechanized excavation activity in waters of the U.S. who believe they
can rebut the presumption that a regulable redeposit would occur should
be prepared to show, if requested by the permitting authority, that any
redeposits of dredged material in waters of the U.S. consist only of
incidental fallback, and that no regulable discharges of dredged
material have occurred. In evaluating such a claim, the permitting
authority will consider the nature of the equipment and its method of
operation and whether redeposited material is suspended in the water
column so as to release contaminants or increase turbidity, as well as
whether downstream transportation and relocation of redeposited dredged
material results.
Section 404(f)(1) of the Act, added in 1977, exempts certain
specified discharges from the section 404 permit requirement, even
though they would typically be in the form of small volume redeposits.
However, section 404(f)(2) further provides for their regulation when
``incidental to any activity having as its purpose bringing an area of
the navigable waters into a use to which it was not previously subject,
where the flow or circulation of navigable waters may be impaired or
the reach of such waters be reduced.'' The language of section
404(f)(2) and its legislative history show a Congressional concern that
discharges incidental to the types of activities specified in section
404(f)(2) should not escape regulation under section 404. As a result,
when a redeposit is incidental to the types of activities specified in
section 404(f)(2), it will be subject to particularly careful scrutiny
by the agencies.
Today's proposal would state our expectation that, absent a
demonstration to the contrary, the activities addressed in the proposed
rule typically will result in more than incidental fallback and thus
result in regulable redeposits of dredged material. It would not,
however, establish a new formal process or new record keeping
requirements, and section 404 permitting and application requirements
would continue to apply only to regulable discharges and not to
incidental fallback. Current practice is to respond to requests for
initial determinations regarding how or whether certain activities in
waters of the U.S. are regulated. For example, interested parties may
provide information to the Corps regarding the potential applicability
of a nationwide permit in order to determine whether they should file
an individual permit application. Parties also may provide the Corps
[[Page 50114]]
information regarding the potential applicability of the section 404(f)
exemptions in order to determine whether they should file a permit
application. Similarly, under today's proposal, project proponents
could provide available information in advance to show the project is
designed to result in only incidental fallback in order to determine if
the presumption of a regulable discharge is rebutted. Such information
might include field notes and still or video photography showing that
the project as executed results only in incidental fallback.
In response to the NMA decision, we amended our regulations on May
10, 1999, to make clear that the term ``discharge of dredged material''
does not include ``incidental fallback.'' This would continue to be the
case under the proposal. Under the current regulations, the
determination of whether an activity results in a regulable discharge
of dredged material or non-regulable ``incidental fallback'' is made on
a case-by-case basis. This also would continue to be the case under
today's proposal. We expect the economic effects of today's proposal to
be small. It would not alter or enlarge section 404 program
jurisdiction and therefore would not affect a discharger's obligation
to obtain a section 404 permit for any discharge of dredged material
into waters of the U.S. Rather, the proposed rule would identify what
types of activities are likely to give rise to an obligation to obtain
such a permit under the definition of ``discharge of dredged material''
contained in our existing regulations. Under the proposal, project
proponents may rebut the presumption of discharge, if requested by the
permitting authority, by demonstrating the activity was designed and
conducted to avoid regulable discharges. They also may ask the
permitting authority for an advance determination on whether the
presumption of a regulable discharge is rebutted for their project.
Because the proposal would not change program jurisdiction, continues
to provide that incidental fallback is not subject to regulation, and
does not establish new procedures or record keeping requirements, we
believe that the economic effects of today's proposal would be small.
IV. Other Federal Statutory and Regulatory Authorities
Other relevant Federal statutory and regulatory authorities include
section 10 of the Rivers and Harbors Act of 1899, as well as section
402 of the CWA. Those authorities are unaffected by the NMA decision,
and nothing in today's proposal is intended to alter their potential
applicability to activities addressed by today's proposal.
Section 10 of the Rivers and Harbors Act generally requires a
permit from the Corps ``for structures and/or work in or affecting
navigable waters of the United States.'' 33 CFR 322.3(a). ``Navigable
waters of the United States'' generally consist of the territorial sea,
tidal waters, other waters used (now or in the past), or reasonably
susceptible to use, in carrying goods in interstate commerce (see 33
CFR part 329 for a complete definition of ``navigable waters of the
United States.''). In contrast, the CWA's geographic reach extends to
the maximum extent allowable under the Commerce Clause, reflecting a
Congressional intent that it ``be given the broadest possible
constitutional interpretation.'' S. Rept. 1236, 92d Cong., 2d Sess. 144
(1972) (see 33 CFR 328.3 and 40 CFR 230.3(s) for a complete definition
of waters of the U.S. which are subject to the CWA). However, because
section 10 applies to structures or work in or affecting ``navigable
waters of the United States,'' activities such as ditching or
channelization work in ``navigable waters of the United States,'' or
affecting their navigable capacity, is subject to regulation under
section 10 of the Rivers and Harbors Act regardless of whether they
result in a ``discharge of dredged material.'' For further information
on potential applicability of section 10 of the Rivers and Harbor Act,
project proponents should contact their local Corps District office.
Addresses and telephone numbers for Corps District offices can be
obtained from the Corps Regulatory Homepage at http://
www.usace.army.mil/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 helpline at
800-832-7828.
Storm water discharges resulting from construction activities are
subject to regulation under the CWA section 402 (National Pollutant
Discharge Elimination System or ``NPDES'') permitting program. On
November 16, 1990, EPA promulgated ``Phase I'' storm water regulations
(55 FR 47990) which require, among other things, NPDES permits for
storm water discharges into a municipal separate storm water sewer
system (MS4) or waters of the U.S. when associated with construction
activity disturbing at least five acres of land. This requirement also
applies to discharges from construction sites that are less than five
acres if they are part of a larger common plan of development or sale
disturbing a total of five acres or greater. These Phase I requirements
are currently in effect.
On December 8, 1999, EPA promulgated additional (``Phase II'')
revisions to the storm water permitting regulations (64 FR 68721) that,
among other things, require an NPDES permit for storm water discharges
into a MS4 or waters of the U.S. when associated with construction site
activities disturbing land equal to or greater than one acre and less
than five acres, unless waived by the NPDES permitting authority.
Construction activity disturbing less than one acre would also require
a permit if part of a larger common plan of development or sale
disturbing a total of one acre or greater, or if individually
designated for permit coverage by the NPDES permitting authority. NPDES
permitting authorities may waive the Phase II construction activity
requirements where little or no rainfall is expected during the period
of construction or when analysis indicates that controls on
construction site discharges are not needed to protect water quality.
Waivers are not available for construction activity subject to the
phase I requirements (e.g., disturbing five acres or greater). EPA
expects the storm water permitting requirements for Phase II
construction activity to be implemented through general permits similar
to those in place for Phase I. NPDES permitting authorities will issue
these general permits on or before December 9, 2002. Regulated
construction operators must apply for permit coverage within 90 days of
general permit issuance. Further information regarding the storm water
permitting regulations may be obtained from EPA's website at http://
www.epa.gov/owm/sw/about/index.htm.
V. Administrative Requirements
A. Paperwork Reduction Act
This action does not impose any new information collection burden
or alter or establish new record keeping or reporting requirements.
Thus, this action is not subject to the Paperwork Reduction Act.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or
[[Page 50115]]
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
C. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, we may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or we consult
with State and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts State law, unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This proposed rule does not have federalism implications. As
explained in section III, the proposal would not alter or enlarge
section 404 program jurisdiction and therefore would not affect a
discharger's (including State dischargers) obligation to obtain a
section 404 permit for any discharge of dredged material into waters of
the U.S. Rather, the proposed rule would identify what types of
activities are likely to give rise to an obligation to obtain such a
permit under the definition of ``discharge of dredged material''
contained in our existing regulations. It will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. Thus, the requirements of section 6 of the
Executive Order do not apply to this rule.
D. Regulatory Flexibility Act (RFA) as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, a small entity is defined as: (1) A small business based on
SBA size standards; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district, or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, we certify that this action will not have a signficant
economic impact on a substantial number of small entities. As explained
in section III, the proposal would not alter or enlarge section 404
program jurisdiction and therefore would not change any discharger's
obligation to obtain a section 404 permit for any discharge of dredged
material into waters of the U.S. Rather, the proposed rule would
identify what types of activities are likely to give rise to an
obligation to obtain such a permit under the existing regulatory
program. Moreover, we also do not anticipate that the information-
sharing contemplated for seeking to rebut the presumption under today's
proposal would result in significant costs.
We continue to be interested in the potential impacts of the rule
on small entities and welcome comments on issues related to such
impacts.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
We have determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. As explained in section III, the proposal would
not alter or enlarge section 404 program jurisdiction and therefore
would not affect a discharger's obligation to obtain a section 404
permit for any discharge of dredged material into waters of the U.S.
Rather, the proposed rule would identify what
[[Page 50116]]
types of activities are likely to give rise to an obligation to obtain
such a permit under the definition of ``discharge of dredged material''
contained in our existing regulations. Thus, today's rule is not
subject to the requirements of sections 202 and 205 of the UMRA. For
the same reasons, we have determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Thus, today's rule is not subject to the
requirements of section 203 of UMRA.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law 104-113, section 12(d) (15 U.S.C.
272 note), directs us to use voluntary consensus standards in our
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs us
to provide Congress, through OMB, explanations when we decide not to
use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, we are not considering the use of any voluntary consensus
standards. We welcome comments on this aspect of the proposed
rulemaking and specifically, invite the public to identify potential
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
G. Executive Order 13045
Executive Order 13045, entitled Protection of Children From
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that: (1) is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that we have reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, we must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives that we considered.
This regulation is not subject to Executive Order 13045 because it
is not an economically significant regulatory action as defined by
Executive Order 12866. As explained in section III, the proposal would
not alter or enlarge section 404 program jurisdiction and therefore
would not affect a discharger's obligation to obtain a section 404
permit for any discharge of dredged material into waters of the U.S.
Rather, the proposed rule would identify what types of activities are
likely to give rise to an obligation to obtain such a permit under the
definition of ``discharge of dredged material'' contained in our
existing regulations. Furthermore, it does not concern an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children.
H. Executive Order 13084
Under Executive Order 13084, we may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
cost incurred by the Tribal governments, or we consult with those
governments. If we comply by consulting, Executive Order 13084 requires
us to provide OMB, in a separately identified section of the preamble
to the rule, a description of the extent of our prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires us to develop
an effective process permitting elected officials and other
representatives of Indian Tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments, nor does it impose
significant compliance costs on them. As explained in section III, the
proposal would not alter or enlarge section 404 program jurisdiction
and therefore would not affect a discharger's obligation to obtain a
section 404 permit for any discharge of dredged material into waters of
the U.S. Rather, the proposed rule would identify what types of
activities are likely to give rise to an obligation to obtain such a
permit under the definition of ``discharge of dredged material''
contained in our existing regulations. Accordingly, the requirements of
section 3(b) of Executive Order 13084 do not apply to this rule.
I. Plain Language
Executive Order 12866 and the President's memorandum of June 1,
1998, require Federal government agencies to write all rules in plain
language. We invite your comments on ways to make this proposed rule
easier to understand. For example:
Have we organized the material to suit your needs?
Are the requirements in the rule clearly stated?
Does the rule/preamble language contain technical language
or jargon that isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule/preamble easier to
understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
J. Environmental Documentation
As required by the National Environmental Policy Act (NEPA), the
Corps prepares appropriate environmental documentation for its
activities affecting the quality of the human environment. The Corps
has made a preliminary determination that today's proposed rule does
not constitute a major Federal action significantly affecting the
quality of the human environment, and thus does not require the
preparation of an Environmental Impact Statement (EIS). Among the
reasons for this conclusion is the fact that the Corps prepares
appropriate NEPA documents, when required, covering specific permit
situations. The implementation of the procedures prescribed in this
proposed regulation would not authorize anyone (e.g., any landowner or
permit applicant) to perform any work involving regulated activities in
waters of the U.S. without first seeking and obtaining an appropriate
permit authorization from the Corps. Accordingly, the Corps expects to
prepare an environmental assessment (EA) for the rule.
List of Subjects
33 CFR Part 323
Water pollution control, Waterways.
40 CFR Part 232
Environmental protection, Intergovernmental relations, Water
pollution control.
[[Page 50117]]
Corps of Engineers
33 CFR Chapter II
Accordingly, as set forth in the preamble 33 CFR part 323 is
proposed to be amended as set forth below:
PART 323--[AMENDED]
1. The authority citation for part 323 continues to read as
follows:
Authority: 33 U.S.C. 1344.
2. Amend Sec. 323.2 as follows:
a. In paragraph (d)(1) introductory text, remove the words
``paragraph (d)(2)'' and add, in their place, the words ``paragraph
(d)(3)''.
b. Redesignate paragraphs (d)(2) through (d)(5) as paragraphs
(d)(3) through (d)(6), respectively.
c. Add new paragraph (d)(2).
d. In newly redesignated paragraph (d)(4), in the first sentence of
paragraph (d)(4)(i) remove each time they appear the words ``paragraphs
(d)(4) and (d)(5)'' and add, in their place, the words ``paragraph
(d)(5) and (d)(6)'', remove paragraph (d)(4)(iii), and redesignate
paragraph (d)(4)(iv) as new paragraph (d)(4)(iii).
The addition reads as follows:
Sec. 323.2 Definitions.
* * * * *
(d) * * *
(2) A discharge of dredged material shall be presumed to result
from mechanized landclearing, ditching, channelization, instream
mining, or other mechanized excavation activity in waters of the United
States. This presumption is rebutted if the party proposing such an
activity demonstrates that only incidental fallback will result from
its activity.
* * * * *
Dated: August 9, 2000.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Environmental Protection Agency
40 CFR Chapter I
Accordingly, as set forth in the preamble 40 CFR part 232 is
proposed to be amended as set forth below:
PART 232--[AMENDED]
1. The authority citation for part 232 continues to read as
follows:
Authority: 33 U.S.C. 1344.
2. Amend Sec. 232.2 as follows:
a. In paragraph (1) introductory text of the definition of
``Discharge of dredged material'', remove the words ``paragraph (2)''
and add, in their place, the words ``paragraph (3)''.
b. In the definition of ``Discharge of dredged material'',
redesignate paragraphs (2) through (5) as paragraphs (3) through (6),
respectively.
c. In the definition of ``Discharge of dredged material'', add new
paragraph (2).
d. In the first sentence of newly redesignated paragraph (4)(i)
remove each time they appear the words ``paragraphs (4) and (5)'' and
add, in their place, the words ``paragraph (5) and (6)'', remove
paragraph (4)(iii), and redesignate paragraph (4)(iv) as new paragraph
(4)(iii).
The addition reads as follows:
Sec. 232.2 Definitions.
* * * * *
Discharge of dredged material * * *
(2) A discharge of dredged material shall be presumed to result
from mechanized landclearing, ditching, channelization, in-stream
mining, or other mechanized excavation activity in waters of the United
States. This presumption is rebutted if the party proposing such an
activity demonstrates that only incidental fallback will result from
its activity.
* * * * *
Dated: August 8, 2000.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[FR Doc. 00-20792 Filed 8-15-00; 8:45 am]
BILLING CODE 6560-50-U
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