Further Revisions to the Clean Water Act Regulatory Definition of “Discharge of Dredged Material”

The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) are promulgating a final rule to amend our Clean Water Act (CWA) section 404 regulations defining the term "discharge of dredged material." Today's final action is being taken to follow-up on our earlier proposed rulemaking of August 16, 2000, in which we proposed to amend the regulations to establish a rebuttable presumption that mechanized landclearing, ditching, channelization, in- stream mining, or other mechanized excavation activity in waters of the U.S. result in more than incidental fallback, and thus involve a regulable discharge of dredged material. As a result of the comments we received, today's final rule reflects several modifications from the proposal. In response to concerns raised by some commenters that the proposal would have shifted the burden of proof to the regulated community as to what constitutes a regulable discharge, we have revised the language to make clear that this is not the case. Additionally, we received numerous comments requesting that we provide a definition of "incidental fallback" in the regulatory language. In response, today's final rule does contain such a definition, which is consistent with past preamble discussions of that issue and is drawn from language contained in the relevant court decisions describing that term. Today's final rule will both enhance protection of the Nation's aquatic resources, including wetlands, and provide increased certainty and predictability for the regulated community. At the same time, it continues to allow for case- by-case evaluations as to whether a regulable discharge of dredged material results from a particular activity, thus retaining necessary program flexibility to address the various fact-specific situations that are presented.